CLD - 041 NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

___________ No. 11

- 3582

___________ UNITED STATES OF AMERICA

v. ERIC WILLIS , Appellant

____________________________________ Appeal from the United States District Co urt for the Eastern District of Pennsylvania (D.C. Criminal No. 2

- 04

- cr - 00314

- 003 ) District Judge: Honorable J. Curtis Joyner

____________________________________ Submitted for Possible Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6

No vember 17, 2011 Before: RENDELL, HARDIMAN and ROTH , Circuit Judges

(Opinion filed : March 14, 2012 )

_________ OPINION OF THE COURT

_________ PER CURIAM As we write primarily for the parties, we will recite only the facts pertinent to th is appeal. In 2004, d efendant

- appellant Eric Willis (―Willis‖) pleaded guilty to several charges stemming from a 2003 robbery of a U

- Haul store in Philadelphia. His sentence2

included a consecutive ten

- year term of incarceration

— a mandatory minimum impose d by 18 U.S.C. § 924(c)(1)(B)(i)

— derived from a coconspirator’s possession of a shotgun during the robbery

. Willis has unsuccessfully challenged his sentence on both direct and collateral review. See generally United States v. Willis , C.A. No. 10

- 3585 ( 3 d Cir., order entered Dec. 6, 2010) ; United States v. Willis , 186 F. App’x 198 (3d Cir. 2006)

. In June of 2011, Willis commenced a new attack on his sentence, filing a motion pursuant to 18 U.S.C. § 3582(c)(2). He claimed that ―Amendment 599‖ had lowere d his Guideline range , thereby justifying relief under § 3582

. 1 The District Court disagreed and denied the motion , observing that the relevant ― sentencing guideline range [was] unaffected ‖ by Amendment 599. Willis filed a timely notice of appeal

. We hav e jurisdiction under 28 U.S.C. § 1291

. While we review the District Court’s order primarily for abuse of discretion, our review of legal questions is plenary

. See United States v. Mateo , 560 F.3d 152, 154 & n.2 (3d Cir. 2009)

. We agree with the Governm ent that Willis cannot obtain relief under § 3582(c). Even if Amendment 599, which antedated Willis’s sentencing by several years , applied

1 Amendment 599 expanded the commentary to U.S.S.G. § 2K2.4 on the use of a firearm during or in relation to certain crimes, and clarified under what circumstances defendants sentenced for violations of 18 U.S.C. § 924(c) in conjunction with convictions for other offenses may receive weapon enhancements contained in the Guidelines for those other offenses. See 3 U.S. Sentencing Comm’n, Guidelines Manual C

- 572

– 74 (2 010), available at http://www.ussc.gov/Guidelines/2011_Guidelines/ Manual_PDF/Appendix_C_Vol_II.pdf (2011 edition with identical textual content). Amendment 599 went into effect on November 1, 2000, and was made retroactive pursuant to U.S.S.G. § 1B1.10. For a discussion of Amendment 599, see United States v. Goines , 357 F.3d 469 (4th Cir. 2004)

.3

in the fashion he claims , it is clear from the pre

- sentence report that Willis never received a firearms enhancement ; rather, the lengthy sentence imposed by the District Court deriv ed, in part, from the mandatory minimum required by 18 U.S.C. § 924(c)(1)(B)(i)

. A m andatory

- minimum term of imprisonment required by statute is not an element of the Guidelines, and Willis therefore cannot challenge that portion of his sentence via § 3582. See Dillon v. United States , ___ U.S. ___, 130 S. Ct. 2683, 2691 (2010) (―[Section 3582 (c)(2) ] applies only to a limited class of prisoners

— namely, those whose sentence was based on a se ntencing range subsequently lowered by the Commission. ‖). Rather, a motion under 28 U.S.C. § 2255 is the proper mechanism for challenging a federal conviction or sentence

. See In re Dorsainvil , 119 F.3d 245, 249 (3d Cir. 1997) ; s ee also United States v. Carter , 500 F.3d 486, 490 (6th Cir. 2007) (distinguishing between motions brought under § 3582(c) and those brought under § 2255).

― Because this appeal does not present a substantial question, we will summ arily affirm the District Court’ s judgment .‖ Mur ray v. Bledsoe , 650 F.3d 246, 248 (3d Cir. 2011) ; see also 3d Cir. L.A.R. 27.4; I.O.P. 10.6

.