BLD-300 NOT PRECEDENTIAL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.
2

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 
3

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.” 
4

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 
5

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.