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w . v i l l a no v a . e du/thir dc ir c uit_2013/815NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

___________ No. 12

- 4531

___________ UNITED STATES OF AMERICA

v. ROBERT RALPH KORBE,

Appellant

____________________________________ On Appeal from the United States District C ourt for the Western District of Pennsylvania (D.C. Criminal Action No s . 2

- 08

- cr - 00365

- 016; 2

- 09

- cr - 00056

- 002;

2

- 10

- cr - 00091

- 001 ) District Judge: Honorable Terrence F. McVerry

____________________________________ Submitted Pursuant to Third Circuit LAR 34.1(a)

May 14, 2013 Before: FUENTES, VANASKIE and VAN ANTWERPEN , Circuit Judges

(Opinion filed : May 22, 201 3 )

___________ OPINION

___________ PER CURIAM Robert Ralph Korbe, a federal prisoner proceeding pro se, appeals from the District Court’s orde r denying his motion for a reduction in sentence pursuant to 18 U.S.C. § 3582(c)(2). We will affirm.2

Korbe pleaded guilty to several counts of possession and distribution of powder

a nd crack cocaine, stipulating to a quantity of more than five but less t han fifteen kilograms of pow d er cocaine. Based on the Presentence Investigation Report, Korbe’s total offense level was 31 with a Criminal History Category of VI, resulting in an advisory Guidelines range of 1 88 to 235 months ’ imprisonment. 1 However, a ft er t he Government filed a notice of prior convic tion pursua nt to 21 U.S.C. § 851 , Korbe became subject to a statutory mandatory minimum sentence of 2 40 months ’ imprisonment for his powder cocaine conviction

. 2 At sentencing, t he Government’s request for an upward variance was granted and Korbe received a sentence of 300 months ’ imprisonment. We affirmed

. United States v. Korbe , 452 F. App’x 177, 180 (3d Cir

. 2011). Korbe ’s subsequent motion for a reduction in sentence , based on the retroactive applicatio n of Amendment 750, was denied. H e timely appealed. We have jurisdiction pursuant to 28 U.S.C. § 1291. We review a district court’s interpretation of the Sentencing Guidelines de novo. United States v. Mateo , 560 F.3d 152, 154 (3d Cir. 2009). We revi ew a district court’s ultimate decision to deny a motion pursuant to § 3582 for abuse of discretion. Id. A district court must first determine whether a defendant’s sentence was based on a sentencing range “that has subsequently been lowered by the Senten cing Commission,”

1 Korbe’s base offense level would have been 32 based solely on the quantity of powder cocaine. U.S.S.G. § 2D1.1(c)(4).

2 A crime involving five kilograms or more of powder cocaine carries a mandatory minimum sentence of ten years (120 months). 21 U.S.C. § 841(b)(1)(A)(ii)(II). That was doubled in Korbe’s case due to his prior conviction.3

18 U.S.C. § 3582(c)(2), and that a reduction is consistent with the policy statements in U.S.S.G. § 1B1.10. Dillon v. United States , 130 S. Ct. 2683, 2691 (2010). If so, the district court may then consider whether the authorized reduct ion is warranted based on the factors set forth in § 3553(a). Id. The comments accompanying § 1B1.10 state that

a reduction in the defendant’s term of imprisonment is not authorized . . . and is not consistent with this policy statement if . . . an amend ment . . . is applicable to the defendant but the amendment does not have the effect of lowering the defendant’s applicable guideline range because of the operation of another . . . statutory provision (e.g., a statutory mandatory minimum term of imprisonm ent). U.S.S.G. § 1B1.10 application note 1. We agree with the District Court that Korbe’s sentence was not based on a Guidelines range that was subsequently lowered by the Sentencing Commission. Though Amendment 750 lowered the base offense levels for crack cocaine quantities listed in U.S.S.G. § 2D1.1 , Korbe’s 240 month statutory mandatory minimum sentence was independently based on his powder cocaine offe n ses . Thus, Amendment 750 could not have the effect of lowering Korbe’s applicable Guidelines ran ge because the mandatory minimum for his powder cocaine conviction was unaffected by that amendment

. United States v. Doe , 564 F.3d 305, 312 (3d Cir. 2009)

. T he District Court did not abuse its discretion in denying Korbe’s motion , as his sentence was no t based on a range that was subsequently lowered and a reduction would have been inconsistent with the policy
statements

. 3 We will, therefore, affirm the judgment of the District Court.

3 We have considered Korbe’s additional arguments and , as the Government correctly4

explains in its brief, they afford no basis for relief under the limited remedy made available to defendants in a § 3582(c)(2) proceeding.