BLD-300 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 16-1104
___________
UNITED STATES OF AMERICA
v.
JEREMY RODRIGUEZ,
Appellant
____________________________________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Criminal No. 2-03-cr-00271-001)
District Judge: Honorable Anita B. Brody
____________________________________
Submitted for Possible Summary Action Pursuant to
Third Circuit LAR 27.4 and I.O.P. 10.6
June 23, 2016
Before: FUENTES, KRAUSE and SCIRICA, Circuit Judges
(Opinion filed: July 6, 2016)
_________
OPINION*
_________
PER CURIAM
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
Jeremy Rodriguez, a federal prisoner proceeding pro se, appeals the District
Court’s order denying his motion requesting a sentence reduction pursuant to 18 U.S.C.
§ 3582(c)(2). For the reasons that follow, we will summarily affirm.
I.
In 2004, Rodriguez pleaded guilty to being a felon in possession of a firearm, in
violation of 18 U.S.C. § 922(g); possessing a firearm in furtherance of a drug trafficking
crime, in violation of 18 U.S.C. § 924(c); and three Title 21 drug offenses. After
reviewing the Presentence Investigation Report (PSR), the District Court determined that
Rodriguez qualified as both a career offender, see U.S.S.G. § 4B1.1, and an armed career
criminal, see 18 U.S.C. § 924(e), based on his prior drug convictions. Under the career
offender designation, which determined Rodriguez’s range under the U.S. Sentencing
Guidelines, he faced a term of 262 months to 327 months. After considering the
arguments of the parties, Rodriguez’s allocution, and the sentencing factors under 18
U.S.C. § 3553(a), the District Court determined a variance was appropriate and sentenced
Rodriguez to a mandatory minimum of 180 months on the felon-in-possession count
followed by a mandatory minimum of 60 months on the § 924(c) charge, for a total
sentence of 240 months. The District Court also sentenced Rodriguez to 180 months on
each of the three drug offenses, with those sentences to run concurrently with the one for
the felon-in-possession conviction.
In February 2015, Rodriguez filed a motion under 18 U.S.C. § 3582(c)(2). He
sought to have his sentence reduced based on Amendment 782 to the U.S. Sentencing
2
Guidelines, which lowered by two the base offense assigned to particular drug quantities.
In a brief order, the District Court denied the motion because Rodriguez’s sentence was
determined by the applicable mandatory minimums. Rodriguez then sought
reconsideration, and the District Court denied that motion. Rodriguez appeals from both
orders.
II.
We have jurisdiction pursuant to 28 U.S.C. § 1291. We exercise plenary review
over the District Court’s interpretation of the Sentencing Guidelines and otherwise
review the denial of relief for abuse of discretion. United States v. Mateo, 560 F.3d 152,
154 (3d Cir. 2009). We review the denial of a motion for reconsideration for abuse of
discretion. Santini v. Fuentes, 795 F.3d 410, 416 (3d Cir. 2015). We may summarily
affirm the District Court’s order if the appeal presents no substantial question. See 3d
Cir. L.A.R. 27.4; 3d Cir. I.O.P. 10.6.
III.
The District Court did not err in denying Rodriguez § 3582(c)(2) relief because
Amendment 782 does not lower his sentencing range. A district court generally cannot
“modify a term of imprisonment once it has been imposed” unless a defendant is eligible
for a reduction of sentence pursuant to § 3582(c). 18 U.S.C. § 3582(c). Section
3582(c)(2) allows for a reduction if (1) the sentence was “based on a sentencing range
that has subsequently been lowered by the Sentencing Commission,” and (2) “a reduction
is consistent with applicable policy statements issued by the Sentencing Commission.”
3
18 U.S.C. § 3582(c)(2); United States v. Flemming, 723 F.3d 407, 410 (3d Cir. 2013). A
reduction in sentence is not consistent with the relevant policy statement unless the
amendment has “the effect of lowering the defendant’s applicable guideline range.”
U.S.S.G. § 1B1.10(a)(2)(B).
The Sentencing Guidelines define “applicable guideline range” as “the guideline
range that corresponds to the offense level and criminal history category determined
pursuant to 1B1.1(a), which is determined before consideration of any departure
provision in the Guidelines Manual or any variance.” U.S.S.G. § 1B1.10 cmt. n.1(A).
Here, the applicable guideline range is “the range calculated pursuant to the career
offender designation of § 4B1.1, and not the range calculated after applying any
departure or variance.” Flemming, 723 F.3d at 412. Amendment 782, which alters the
offense levels for drug crimes but does not affect the offense levels for career offenders,
would not lower Rodriguez’s applicable Guidelines range, and it would thus be contrary
to the applicable policy statement to reduce Rodriguez’s sentence. Furthermore, as the
District Court determined, a sentence reduction under § 3582(c)(2) is also precluded by
the applicable mandatory minimums on the two firearms charges. Accordingly, the
District Court did not err in denying Rodriguez’s motion pursuant to § 3582(c)(2).1
1
In a motion before the District Court, Rodriguez asked the District Court to consider
whether he was eligible for relief under Johnson v. United States, 135 S.Ct. 2551 (2015).
The District Court declined to address the issue, and Rodriguez has now attached his
motion to a filing in this Court. The District Court did not err because Johnson is not a
proper basis for relief under § 3582(c)(2). In any event, Rodriguez appears ineligible for
relief under Johnson. In that case, the Supreme Court held that part of the Armed Career
4
IV.
For the foregoing reasons, we will summarily affirm the District Court’s orders
denying Rodriguez’s motion for a sentence reduction under 18 U.S.C. § 3582(c)(2) and
denying reconsideration of that decision.
Criminal Act’s definition of “violent felony” violated due process because it was
unconstitutionally vague. Id. at 2562-63; see 18 U.S.C. § 924(e)(2)(B). However,
Rodriguez was sentenced based on three prior serious drug offenses, not “violent
felonies.” See 18 U.S.C. § 924(e)(2)(A). That provision of § 924(e) was not affected by
Johnson.
5