NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

_____________

No. 1 3

- 1558

_____________ UNITED STATES OF AMERICA

v. LAZONO FERNANDO DEAMUE S a/k/a PO LO Lazono Fernando Deamues, Appellant

____________ On Appeal from the United States District Court for the W estern District of Pennsylvania ( D.C. No. 2: 08

- cr - 002 09 ) District Judge s : Honorable Nora B. Fischer

____________ Submitted Pursuant to Third Circuit LAR 34.1(a) January 21 , 201 4

____________ Before: FUENTES, FISHER, Circuit Judges , and JONES, District J udge

. 1 ( Opinion Filed: February 4, 2014 )

____________ OPINION OF THE COURT

____________

1 Honorable C. Darnell Jones, II, United States District Court for the Eastern District of Pennsylvania, sitting by designation.2 FUENTES, Circuit Judge : Lazono Fernando Deamues appeals the dismissal of his motion for a reduction of
sentence

. He argues, inter alia , that the United States Sentencing Commission’s pol icy
statement precluding the reduction of his sentence violates the equal protection component of the Fifth Amendment’s Due Process Clause. For reasons stated below , we summarily affirm the District Court’s judgment

. 2
I.
Deamues pleaded guilty to one co unt of conspiracy to distribute fifty grams or

more of c rack cocaine in violation of 21 U.S.C. § 846

. At the time, h is criminal history category coupled with his offense level yielded a Guidelines range of 188 to 235 months’ imprisonment. At sentencing, Deamues sought a variance from the Guidelines range based on , among other things, the disparity between the cra ck and powder cocaine offense levels. T he District C ourt concluded that a downward variance of thirty

- eight months was appropriate , and imposed a senten ce of 150 months’ incarceration

. Subsequently , Congress passed the Fair Sentencing Act (“the FSA” ), in a laudable attemp t “[t]o restore fairnes s to Federal cocaine sentencing. ” Pub. L. No. 111

- 220, 124 Stat. 2372 (2010). The FSA increased the quantities of crack cocaine necessary to trigger the statutory mandatory minimums from five grams to twenty

- eight grams for the five

year mandatory minimum, and from fifty grams to 280 grams for the ten

- year mandatory

2 We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). “[W]hen, as here, a defendant raises purely legal issues of statutory and constitutional interpretation, we exercise plenary review.” United States v. Berberena , 694 F.3d 514, 519 n.7 (3d Cir. 2012).3 minimum. 21 U.S.C. § 841. A ddition all y , the FSA authorized the Sentencing Commission to promulgate amendments to the Guidelines to conform them to the FSA.
See 28 U.S.C. § 994. Pursuant to this authority, the Commission promulgated Amendment 750 , which “ reduced the crack

- related offense leve ls in § 2D1.1 of the Guidelines,” as well as Amendment 759, which made Amendment 750 retroactive. Berberena , 694 F.3d at 517

- 18

. Calculated after the implementation of the amended Guidelines, Deamues’s Guidelines range fell from 188 to 235 months to 151 to 188 months. 3

Following the retroactive amendment s to the Guidelines, Deamues filed a mo tion for a reduction in senten ce under 18 U.S.C. § 3582(c)(2) . The District Court concluded that Deamues was barred from a reduction of his sentence per the policy statement at U.S.S.G. § 1B1.10 . The Court also rejected Deamues’s contention that the poli cy
statemen t was unconstitutional, and therefore void . This appeal followed. Notably , Dea mues’s initial sentence

— 150 months imprisonment

— is below the

new Guidelines range (151 to 188 months), as well as the prior one (188 to 235 months)

.

II. 18 U.S.C. § 3582(c)(2) provides for the modification of the terms of imprisonment

“ in the case of a defendant who has been sentenced to a term of imprisonment based on a

sen tencing range that has subsequently been lowered by the Sentencing Commission pursuant to 28 U.S.C. § 994( o ) and made retroactive pursuant to § 994(u)

. ” Dill on v.

3 The Government contends, as it did below, that Deamues’s Guidelines range remains 188 to 235 months, the same as it was before the enactment of the FSA. The District Court assumed, without deciding, that Deamues’s calculation of the amended guidelines range was correct. We follow suit

.4 United States , 560 U.S. 817 , 824 (2010) (internal quotation marks omitted )

. However, the po licy statement at U.S.S.G. § 1 B 1.10 , as amended, strictly prohibits courts from reducing a “defendant’s term of imprisonment . . . to a term that is less than the minimum of the amended guideline range, ” unless the initial term of imprisonment was reduced “pursuant to a government [§ 5K1.1] motion to reflect the defendant’s substantial assistance to authorities . . . .” U.S.S.G. § 1B1.10(b)(2)(A)

- (B)

. In other words, th is binding policy statement “prohibits a reduction below the low end of the prisoner’s new range, even if the prisoner originally received a below

- Guidelines sentence,” and “[t] he only exception is for defendants whose below

- Guidelines sentences were based on [ § 5K1.1 motion s].” Berberena , 694 F.3d at 518

- 19.
Deam u e s concedes that he is n ot entitled to a reduction under the plain language of the policy statement. He argues, however, that § 1B1.10 should not be followed. Deamues would have it that, by permitting a reduction bel ow the amended guidelines
range only where the sentence was i nitially reduced pursuant to a § 5K1.1 motion

— as opposed to where the initial variance or departure was granted for some other reason

— § 1B1.10 violate s the equal protection component of the Due Process Clause

. 4

4 Deamues also contends that, in promulgating § 1B1.10 , the Commission: (1) exceeded its authority under the FSA; (2) violated the separation of powers doctrine; and (3) failed to comply with the applicable notice

- and

- comment requirements. He concedes, however, that we rejected the very same arguments in United States v. Berberena , 694 F.3d 514 (3d Cir. 2012), and that this panel is bound by that decision. He makes these arguments only to preserve them for potential Supreme Court review. We disagree.5 The Commission’s distinc tion between substantial assistance defendants and other defendants initially given below

- Guidelines sentences “neither burde n s a fundamental right nor targets a suspect class,” meaning that we must “uphold [ the distinction ] so long as it bears a rational relation to some legitimate end.” Romer v. Evans , 517 U.S. 620, 631 (1996). A classification passes rational basis review “if there is any reasonabl y conceivable state of facts that could provide a rational basis for the classification .”
F

. C

. C

. v. Beach Commc’ns, Inc. , 508 U.S. 307, 313 (1993) (emphasis added) . In short ,

“ [t]he threshold for upholding distinctions in a statute under rational

- basis review is extremely low . . . .” United States v. Pollard , 326 F.3d 397, 40 8 (3d Cir. 2003). Moreover, whe re rational basis review applies, “the burden is on the one attacking the legislative arrangement to negative every conceivable basis which might support it , whether or not the basis has a foundation in the record .” Heller v. Doe , 509 U.S. 312,
320

- 21 (1 993) (internal quotation marks, citation, and alterations omitted). Deamues insists that the policy statement’s disparate treatment of substantial assistance defendants and other defendants with reduced sentences fails rational basis review. He concedes that substantial assistance defendants are differently situated from other defendan ts before they are sentenced, b ut he notes that the substantial assistance defendants have already received sentence reductions for their help. Thus, as he sees it, “[a]t t his moment, in this proceeding, there is no rational basis for distinguishing the crack defendant who received a below guideline sentence based on substantial assistance from the crack defendant who received a non

- substantial assistance departure or varian ce.” Def.’s Br. at 26.6 We cannot agree that the disparate treatment of these two groups of defendants could not plausibly further any legitimate governmental purpose

. For one thing, we fail to see why the Commission is not free to provide substantial as sistance defendants with an additional reward for providing the Government with valuable information, even if that reward provide s no clear ly articu l able benefit to the Government. Nor would it be implausible to anticipate that an unpromised showing of be neficence to cooperators might prompt others to assist the Government in the future. Moreover, as we explained
in Berberena , the Commission promulgated this newest iteration of § 1B1.10 because the prior, more complicated policy statement “ha[d] been diff icult to apply and [] prompted litigation .” 694 F.3d at 518. “ [C] onserv[ing] judicial resources” is an “unquestionably legitimate [legislative] purpose [] .” Imprisoned Citizens Union v. Ridge , 169 F.3d 17 8 , 189 (3d Cir. 1999).
In sum , Deam u e s has faile d “ to negative every conceivable basis which might support ” the policy statement at § 1B1.10

. Heller , 509 U.S. at 320

. Hence, his constitutional challenge to the policy statement must fail.
IV. For the foregoing reasons, we affirm the District Court’s d enial of Deam u e s’s
mot ion for a reduction of sentence.