2010 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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- 057 NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

___________ No. 10

- 3517

___________ JUAN ANTONIO GARCIA

- VILLA , Appellant

v. UNITED STATES OF AMERICA

____________________________________ On Appeal from t he United States District Court for the Eastern District of Pennsylvania (D.C. Civil No. 03

- cr - 00745 ) District Judge: Honorable J. Curtis Joyner

____________________________________ Submitted for Possible Dismissal Due to a Jurisdictional Defect and Possible Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6 December 2, 2010 Before: SCIRICA, HARDIMAN and VANASKIE , Circuit Judges

(Filed December 13, 2010 )

_________ OPINION OF THE COURT

_________ PER CURIAM

. J uan Garcia

- Villa appeal s the September 14, 2009 order of the District Court denying his motion to reduce his sentence pursuant to 18 U.S.C. § 3582 (c)(2)

. We will summarily aff

irm

.2

In October 2004, Garcia

- Villa pled guilty to several drug

- related offens es, including conspiracy to distribute more than 50 gra ms of cocaine base (“crack”) in violation of 21 U.S.C. § 846; three counts of distribu tion of more than five grams of crack, in viol ation of 21 U.S.C. § 841(a)(1); distrib ution of more than fifty grams of crack, in violation of 21 U.S.C. § 841(a)( 1); possession of co caine with intent to distribute; and possession of hero in with intent to distribute. At a January 2005 sentencing hearing, the Court imposed the statutory mandatory minimum senten ce of 240 months of imprisonment. Garcia

- Villa did not file a direct appeal. In July 2009, Garcia

- Villa filed in the District Court a motion to reduce his sentence pursuant to18 U.S.C. § 3582(c)(2) , based on a recent amendment to the Federal Sentencing Guidelines which lowered the base offense levels applicable to crack offenses. The District Court denied Garcia

- Villa’s motion, concluding that the amendment had no effect on his mandatory minimum sentence. Garcia

- Villa appeals. We have jurisdiction over this appe al pursuant to 28 U .S.C. § 1291. We review the District Court’s decision to deny Garcia

- Villa’s motion to reduce his sentence pursuant to § 3582 ( c)(2) for abuse of discretion. United States v. Mateo , 560 F.3d 152, 15 4 (3d Cir. 2009). A District Court m ay reduce a defendant’s sentence under § 3582 “in the case of a defendant who has been sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by th e Sentencing Commission . . . after considering3

the factors set f

orth in section 3553(a) to the extent that they are applicable, if such a reduction is consistent with applicable policy statements issued by the Sentencing Com mission.” 18 U.S.C. § 3582(c)(2). However, district courts’ § 3582 authority to reduce senten ces based on amended guideline ranges is limited by § 1B1.10, which provides, in relevant part, that a reduction is not authorized under 18 U.S.C. § 3582(c)(2) if the “amendment listed in subsection (c) does not have the effect of lowering the
defendant ’s applicable guideline range.” U.S.S.G. § 1B1.10(a)(2)(B). Commentary on the revision elaborates: “The amendment does not have the effect of lowering the defendant’s applicable guideline range because of the operation of another guideline or statutory prov ision (e.g., a statutory mandatory minimum term of imprisonment).” Id. , app. note 1(A). In November 2007, nearly three years after Garcia

- Villa was sentenced, the Sentencing Commission issued Amendment 706, which reduced the base offense level for crack cocaine offenses under § 2D1.1(c) by two levels. See U.S. S.G. App

. C, Amend. 706 (Nov. 1, 2007). The Commission later made the amen dment retroactively applicable. See U.S.S.G. App. C, Amend. 713 (Supp. May 1, 2008).
In his § 3582 motion , Garcia

- Villa sought to have his sentence reduced as result of that amendment

. We agree with the District Court that the amendment at issue do es not apply here because Garcia

- Villa was sentenced to a mandatory minimum sentence required by statute. See United States v . Doe , 564 F.3d 305, 309 (3d Cir. 2009) (holding4

that Amendment 706 did not have the effect of lowering the applicable guideline range where the defendants received statutory mandatory minimum sentences and thus the defendants were not eligible for relief under § 3582.) Because the District Cou rt did not abuse its discretion in denying Garcia

- Villa’s
motion to reduce his sentence , we will summarily affirm. See T hird Cir. LAR 27.4; I.O.P. 10.6.