2012 D e c i sion s O p inion s of the U nit e d S t a t e s C our t of Appe al s for the Thir d C ir c uit

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P r e c e de n t i al or N on-P r e c e de n t i al : N on-P r e c e de n t i al
D ock e t N o . 12-1115

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### NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

___________ No. 12

- 1115

___________ UNITED STATES OF AMERICA

v. JASON CLARK, Appellant

____________________________________ On Appeal from the Unit ed States District Court for the Eastern District of Pennsylvania (D.C. Criminal No. 2

- 04

- cr - 00212

- 001 ) District Judge: Honorable R. Barclay Surrick

____________________________________ Submitted Pursuant to Third Circuit LAR 34.1(a) April 18, 2012 Before: SLOVITER, SMITH and COWEN , Circuit Judges (Opinion filed : April 19, 201 2 )

_________ OPINION

_________ PER CURIAM In 2005, appellant Jason Clark pleaded guilty to one count of possession with intent to distribute 150 grams of crack cocaine (21 U.S.C. § 841(a)(1) and (b)(1)(A)), one count of possession of a firearm by a convicted felon (18 U.S.C. § 922(g)(1)), and one count of possession of a firearm in furtherance of a drug

- trafficking crime (18 U.S.C.2 

### § 924(c)(1)), charges attached to cond uct from 2001. He was sentenced to an aggregate term of 176 months of imprisonment. Before this Court is Clark’s appeal of his second motion to reduce his sentence pursuant to 18 U.S.C. § 3582(c)(2), 1



### In his motion, Clark argued that both the guidelines applicable to his sentence and the relevant mandatory minimum term of imprisonment have been lowered since he was originally sentenced. He pointed to which was denied by the District Court. For the foll owing reasons, we will affirm.

Freeman v. United St ates , ___ U.S. ___, 131 S. Ct. 2685 (2011) , which addressed “ whether defendants who enter into plea agreements that recommend a particular sentence as a condition of the guilty plea may be eligible for relief under § 3582(c)(2) .” Id. at 2690. In opposing Clark’s motion, the Government argued that Freeman did not apply, as the plea agreement was not pegged to a guidelines range. The District Court agreed with this reasoning, finding Clark’s case to not “fit within Freeman

We have jurisdiction under 28 U.S.C. § 1291. While the ultimate decision to reduce a sentence under 18 U.S.C. § 3582(c)(2) is committed to the discretion of the District Court, we exercise plenary review over the Court’s legal analysis. ” because his sentence “was based solely on his plea agreement” and not “the guidelines range.” Order n.2, ECF No. 60.

United States v. Styer , 573 F.3d 151, 153 (3d Cir. 2009) ; United States v. Doe

1 

### Section 3582(c)(2) allow s for the sentencing court to reduce the term of imprisonment if a defendant was “ sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission .” , 564 F.3d 305, 307 n.2 (3d Cir. 2009)

.3 

### When Clark was originally sentenced, 18 U.S.C. § 924(c)(1)(A) (2006) required that “any person who . . . in furtherance of [a drug trafficking] crime, possesses a firearm” shall “in addition to the punishment provided for such . . . drug trafficking crime” be sentenced to “a term of imprisonment of not less than 5 years.” Meanwhile, 21 U.S.C. § 841(b)(1) (2006) imposed a ten

- year mandatory minimum for possession of more than 50 grams of crack. Taken together, the mandatory minimum sentence Clark could expect was a fifteen

- year term. The plea agreement to which Clark was a party reflected an understanding of such a sentence 2 

### ( see Guilty Plea Agreement § 3(a), ECF No. 40), and Clark’s counsel acknowledged that fifteen years was “the lowest sentence which this Court may impose” ( see S everal years later, Congress passed the Fair Sentencing Act of 2010, Pub. L. No.
111

- 220, 124 Stat. 2372 (2010). Section 2 of the Act amended the relevant subsection of 21 U.S.C. § 841, striking “50 grams” and inserting “280 grams.” Def.’s Sentencing Memo. 6, ECF No. 46).

See 21 U.S.C. § 841(b )(1)(A)(iii) (2012). The Act also led to the promulgation of sentencing guidelines reflecting the new statutory scheme. See United States v. Dixon

We need not determine whether the modification of the guidelines cou ld affect relief under § 3582 and , 648 F.3d 195, 197

– 98 (3d Cir. 2011)

.

Freeman , because Clark was sentenced to a mandatory

- minimum statutory term that still applies to him. In United States v. Reevey

2 

### The sentence was reduced somewhat due to p rior

- custody credits that are not relevant here. , 631 F.3d 110 (3d Cir.4 

### 2010), we held that the Fair Sentencing Act is not retroactive if bot h the offense and initial sentencing occurred before its enactment, as is the case here. Id. at 114

– 15. A defendant is not eligible for a reduction under § 3582(c)(2) if another statute or provision, such as a statutory mandatory minimum, controls his se ntence. See Doe

In sum, we agree with the District Court that it could not adjust Clark’s sentence under § 3582. We will therefore affirm its judgment. , 564 F.3d at 312

. Thus, as Clark was sentenced to the minimum time possible under the old statutory scheme, the fact that a guidelines range has changed in the interim is of no moment. Finally, to the extent that Clark attacks the constit utionality of his sentence, 18 U.S.C. § 3582(c)(2) is not the proper vehicle for doing so.