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ALD-277 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 12-2858

___________

UNITED STATES OF AMERICA

v.

ALBERTO FIGUEROA, a/k/a Lucky,

Appellant

____________________________________

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(E.D. Pa. Crim. No. 5-10-cr-00335-001)

District Judge: Honorable Lawrence F. Stengel

____________________________________

Submitted for Possible Dismissal as Untimely or 

Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6

September 7, 2012

Before: SLOVITER, FISHER and WEIS, Circuit Judges

(Opinion filed: September 17, 2012)

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OPINION

___________

PER CURIAM.

Alberto Figueroa appeals the order of the District Court, which denied his motion 

to reduce sentence pursuant to 18 U.S.C. § 3582(c)(2). We will summarily affirm 
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because no substantial question is presented by this appeal, Third Circuit LAR 27.4 and 

I.O.P. 10.6.

I.

On June 21, 2011, Figueroa pleaded guilty to conspiracy to distribute more than 

fifty grams of cocaine base (crack), in violation of 21 U.S.C. § 846, six counts of 

distribution of crack, and five counts of distribution near a school, pursuant to a plea 

agreement under Federal Rule of Criminal Procedure 11(c)(1)(C), in which the 

Government and Figueroa stipulated that he was responsible for the distribution of 128 

grams of crack and that the appropriate sentence was 120 months’ imprisonment. On 

September 21, 2011, the District Court imposed the agreed-upon sentence. 

Figueroa pro se filed a motion for reduction of sentence pursuant to 18 U.S.C. § 

3582(c)(2) and Amendment 750 to the sentencing guidelines. On June 8, 2012, the 

District Court denied the motion, noting that Figueroa had already received the benefit of 

Amendment 750. 

Figueroa filed a notice of appeal on June 25, 2012. This Court advised the parties 

that this matter would be considered for possible dismissal for lack of timeliness and also 

for possible summary action. In response, Figueroa claimed that the District Court did 

not mail him notice of its order until June 19, 2012, and that the appeal period should 

have commenced on that date. The Government did not respond.1 

 

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 Figueroa was required to file a notice of appeal within fourteen days after entry of the 

order. Fed. R. App. P. 4(b)(1)(A). Despite the benefit of the prisoner mailbox rule, 
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II.

We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. We review de 

novo the District Court’s legal interpretation of relevant statutes and guidelines, and we 

review for abuse of discretion the District Court’s ultimate ruling on a motion to reduce a 

sentence pursuant to § 3582(c)(2).2 See United States v. Mateo, 560 F.3d 152, 154 (3d 

Cir. 2009).

III.

The Fair Sentencing Act of 2010 (FSA), Pub. L. No. 111-220, 124 Stat. 2372 

(Aug. 3, 2010), altered the statutory penalties for crack cocaine offenses and directed the 

Sentencing Commission to “make such conforming amendments to the Federal 

sentencing guidelines as [it] determine[d] necessary to achieve consistency with other 

guideline provisions and applicable law.” Dorsey v. United States, 132 S. Ct. 2321, 2329 

(2012) (quoting the FSA § 8, 124 Stat. 2374). In response to the FSA, the Commission 

 

Houston v. Lack, 487 U.S. 266, 276 (1988); Fed. R. App. P. 4(c), Figueroa’s notice of 

appeal was untimely. His claim that the District Court delayed proper notice of its 

decision does not toll the appeal period. Long v. Atl. City Police Dep’t, 670 F.3d 436, 

442-43 (3d Cir. 2012) (discussing Poole v. Family Ct. of New Castle Cnty., 368 F.3d 263 

(3d Cir. 2004)). Rule 4(b) is a non-jurisdictional, “rigid” deadline. Gov’t of V.I. v. 

Martinez, 620 F.3d 321, 328 (3d Cir. 2010). “Upon proper invocation of the rule when a 

notice of appeal is filed out of time, we must dismiss the appeal.” Id. at 328-29. The 

Government’s lack of response constitutes a forfeiture of any available untimeliness 

argument. Id. at 329.

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 Section 3582(c)(2) grants a sentencing court discretion to reduce the prison term of a 

defendant who “has been sentenced to a term of imprisonment based on a sentencing 

range that has subsequently been lowered by the Sentencing Commission ... [provided] a 

reduction is consistent with applicable policy statements issued by the Sentencing 

Commission.” 18 U.S.C. § 3582(c)(2).
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promulgated a temporary amendment that reduced the base offense levels for most crack 

cocaine offenses that became effective on November 1, 2010. Amendment 750 repromulgated the temporary amendment as permanent and became effective November 1, 

2011. Dorsey, 132 S. Ct. at 2329. 

Here, the probation office applied the temporary amendment to its calculation of 

Figueroa’s sentencing guideline range, resulting in a range identical to that suggested by 

Amendment 750.3 The District Court adopted the guideline range and imposed the 

agreed-upon sentence of 120 months’ incarceration. 

IV.

For the foregoing reasons, we will summarily affirm the judgment of the District 

Court.

 

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 Under both the temporary amendment and Amendment 750, the sentencing guideline 

range is 97 to 121 months’ incarceration.