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BLD-008 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 12-3374

___________

UNITED STATES OF AMERICA

v.

ROYCE E. BROWN, SR.,

 Appellant

____________________________________

On Appeal from the United States District Court

for the District of Delaware

(D.C. Criminal No. 1-95-cr-00069-001)

District Judge: Honorable Sue L. Robinson

____________________________________

Submitted for Summary Action Pursuant to

Third Circuit LAR 27.4 and I.O.P. 10.6

October 12, 2012

Before: SCIRICA, HARDIMAN and GREENAWAY, JR., Circuit Judges.

(Filed: October 19, 2012)

_________

OPINION OF THE COURT

_________

PER CURIAM.

Royce E. Brown, Sr., a federal prisoner proceeding pro se, appeals from the 

District Court’s denial of his motion requesting a reduction in sentence pursuant to 18 

U.S.C. § 3582(c)(2). We will summarily affirm.
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I.

The facts being well-known to the parties, we will set forth only those pertinent to 

this opinion. In 1996, Brown was convicted of possession with intent to distribute crack 

cocaine and unlawful possession of a firearm by a felon. As a career offender pursuant to 

U.S.S.G. § 4B1.1, he was sentenced to 360 months imprisonment. We affirmed his 

conviction and sentence. (Dkt. No. 147.) 

After unsuccessfully pursuing habeas relief, (Dkt. Nos. 186, 193), Brown filed a 

motion to reduce his sentence pursuant to 18 U.S.C. § 3582(c)(2), relying upon 

Sentencing Guideline Amendment 706, (Dkt. No. 196). The District Court denied that 

motion, determining that Amendment 706 did not apply to Brown because he was 

sentenced as a career offender. (Dkt. No. 200.) We affirmed. United States v. Brown, 

369 F. App’x 388, 391 (3d Cir. 2010). 

Brown then filed a second § 3582(c)(2) motion, arguing that his sentence should 

be reduced on the basis of, among other things1, Amendment 750. The District Court 

denied Brown’s motion to the extent that the arguments raised therein were previously 

made, and rejected, on appeal. (Dkt. No. 215, pp. 5-6.) As for his reliance on 

Amendment 750, the District Court determined that it did not apply to defendants 

 

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The District Court properly recognized that the other Amendments upon which Brown 

relied were in effect before he was sentenced. (Dkt. No. 215, p. 6 n.8.) 
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sentenced as career offenders and therefore could not be used to reduce his sentence. (Id.

pp. 6-7.) Brown timely appealed. 

II.

We have jurisdiction pursuant to 28 U.S.C. § 1291. We review a district court’s 

interpretation of the Sentencing Guidelines de novo. United States v. Mateo, 560 F.3d 

152, 154 (3d Cir. 2009). We review a district court’s ultimate decision to deny a motion 

pursuant to § 3582 for abuse of discretion. Id. We may summarily affirm the decision of 

the District Court if no substantial question is presented on appeal. 3d Cir. LAR 27.4 and 

I.O.P. 10.6. 

To be eligible for a reduction in sentence, a defendant must have “been sentenced 

to a term of imprisonment based on a sentencing range that has subsequently been 

lowered by the Sentencing Commission.” 18 U.S.C. § 3582(c)(2). The sentence must 

first be “based on” a Guidelines range, and, second, a Guidelines amendment must have 

the “effect of lowering” that Guidelines range. United States v. Thompson, 682 F.3d 

285, 290 (3d Cir. 2012) (citing Freeman v. United States, 131 S. Ct. 2685, 2700 (2011) 

(Sotomayor, J., concurring)). 

We first turn to the issue of whether Amendment 750 could serve to lower 

Brown’s sentence. To conform to the Fair Sentencing Act of 2010, Amendment 750 

lowered the base offense levels for crack cocaine quantities listed in U.S.S.G. § 2D1.1. 

However, as a career offender, Brown’s offense level and Guidelines range were based 

on the application of U.S.S.G. § 4B1.1. Because Brown was not sentenced based on a 
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range that was subsequently lowered by the Commission, he was not eligible for a 

reduction under § 3582(c)(2). See Mateo, 560 F.3d at 154-55. The District Court did not 

abuse its discretion in denying Brown’s motion.

Brown also argued that he should never have been classified as a career offender. 

We previously found that argument to be without merit, Brown, 369 F. App’x at 390, and 

see no occasion to revisit it here. Apart from Brown’s reliance on Amendment 750, all of 

the other arguments advanced in his second § 3582 motion were previously adjudicated 

on appeal. Id. at 390-91. The District Court properly declined to revisit those issues as 

well. Finally, Brown’s letter opposing summary affirmance does not advance any basis 

not previously considered by us or the District Court.2 

III.

There being no substantial question presented on appeal, we will summarily affirm 

the District Court’s order and deny Brown’s motion for appointment of counsel. 3d Cir. 

LAR 27.4 and I.O.P. 10.6. Brown’s motion to expedite his motion for appointment of 

counsel and the Government’s motion in support of summary dismissal are denied as 

moot.

 

2 Brown claims that his arguments are supported by Amendments 741 and 759. His 

reliance on those Amendments is misplaced. Amendment 741 reorganized § 1B1.1 to 

clarify a three-step approach to sentencing, while Amendment 759 merely implemented 

the retroactivity of Amendment 750.