2010 D e c i sion s O p inion s of the U nit e d S t at e s C our t of Appe al s for the Thir d C ir c uit
10-28-2010 

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### NOT PRECEDENTIAL UNITED STATES COURT OF APPE ALS FOR THE THIRD CIRCUIT

___________ No. 08-2074

___________

UNITED STATES OF AMERICA
v. NATHANIEL MONTGOMERY, Appellant

___________ On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. No. 2-02-cr-00172-020)

___________ Submitted Under Third Circuit LAR 34.1(a) on October 7, 2010 Before: FUENTES, JORDAN and ALDISERT, Circuit Judges (Filed: October 28, 2010)

___________ OPINION OF THE COURT

___________ ALDISERT, Circuit Judge
. Nathaniel Montgomery appeals from a de cision of the District Court for the Eastern District of Pennsylvani a, which denied his motion to reduce the sentence he is serving for crack and powder co caine offenses. He contends that we should reverse the

### 2 District Court’s denial of his “Motion for Reduction in Sentence Pursuant to 18 U.S.C. § 3582(c)(2),” both because of recent amen dments to the United States Sentencing Guidelines, and because the Di strict Court denied his Motion without first holding an evidentiary hearing. His contentions are foreclosed by federal statute and by United States v. Styer , 573 F.3d 151 (3d Cir. 2009), and accordingly we will affirm. 1 

### I. Because we write for the parties, who are fa miliar with the events that gave rise to this appeal, we state the facts and District C ourt proceedings only as necessary to explain our reasoning. A jury convicted Montgomery of conspiracy to distribute crack and powder cocaine. At sentencing, the Court determined that he was responsible for distributing more than 1.5 kilograms of cr ack cocaine and, separately, more than 150 kilograms of powder cocaine. Each finding was an independent basis for Montgomery’s base offense level of 38 under the Guidelines. After Montgomery’s incarceration began, Congress reduced the sent encing range for crack (but not powder) cocaine offenses. See U.S.S.G. § 2D1.1 (2007) ; 

### id. Supp. to App. C, Amend. 706. He filed a “Motion for Reduction of Sentence,” and requested an evidentiary hearing, but the District Court denied the Motion and the hearing on the ground that his powder cocaine conviction independently supported hi s sentence. Montgomery appealed. II. We review de novo a district cour t’s interpretation of the Guidelines. United States

1 

### The District Court had subject matter juri sdiction pursuant to 18 U.S.C. §§ 3231, and 3582(c)(2). We have appellate jurisd iction pursuant to 28 U.S.C. § 1291.

### 3 v. Mateo , 560 F.3d 152, 154 (3d Cir. 2009). We revi ew a district court’s denial of a § 3582(c)(2) motion, as well as a district court’s denial of an evidentiary hearing, for abuse of discretion. Styer , 573 F.3d at 153-154. We re view for plain error nonjurisdictional issues a party rais es for the first time on appeal. United States v. Vazquez , 271 F.3d 93, 99 (3d Cir. 2001) (en banc). III. The District Court correctly denied M ontgomery’s Motion, because he did not make a prima facie case for relief under § 3582(c)(2). Because the Motion failed as a matter of law, the Court was within its disc retion in not holding an evidentiary hearing before ruling upon it. We therefore will affirm its decisions in all respects. A. Montgomery appeals from a denial of his “Motion for Reduction of Sentence Pursuant to 18 U.S.C. § 3582(c)(2).” Section 3582(c)(2) au thorizes district courts to reduce an otherwise final sentence if it is “based on a sentencing range that has subsequently been lowered by the Sent encing Commission.” Montgomery’s conviction does not qualify because his sentencing range is unaffected by the amendment. The more than 150 kilograms of powder cocaine for wh ich he was responsible supports his base offense level, wholly apart from any change s to the Crack Cocaine Guidelines range. Because the amendments di d not lower Montgom ery’s sentencing range, the Court correctly rejected his claim thatthey entitle him to a reduction. B. Montgomery also challenges the DistrictCourt’s decision to deny his Motion

### 4 without holding an evidentiary hearing. He appears to raise this i ssue for the first time on appeal, as it does not appear that he requested an evidentiary hear ing in the District Court, nor did he object to the Court’s de cision to rule without one. Accordingly, we review the record fo r plain error only, Vazquez , 271 F.3d at 99, and we affirm because a hearing would not have change d the result in this case. Even assuming he did preserve the issue, however, we would affirm the District Court. A defendant who moves to have his sentence reduced is not entitled to an evid entiary hearing; whether to hold one is at the discretion of the trial court. Styer , 573 F.3d at 153. In this case, the Court needed no hearing, because there was no evidentiary issue to resolve – § 3582(c)(2) foreclosed Montgomery’s Motion, as a ma tter of law. Because there was no need for a hearing, the District Court acted within its di scretion in declining to hold one. * * * * * We hold that the District Court did no t err in denying Montgomery’s § 3582(c)(2) Motion, and that it acted within its discretion in declining to hold an evidentiary hearing in this case. The judgment of th e District Court will be AFFIRMED.