1

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- 008 NOT PRECEDENTIAL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 Circ uit LAR 27.4 and I.O.P. 10.6

October 12, 2012 Before: SCIRICA, HARDIMAN and GREENAWAY, JR. , Circuit Judges

. ( F iled : October 19, 2012 )

_________ OPINION OF THE COURT

_________ PER CURIAM

. Royce E. Brown, Sr., a federal prisoner proceeding pro se, appeals from the Distr ict Court’s denial of his motion requesting a reduction in sentence pursu ant to 18 U.S.C. § 3582(c)(2). W e will summarily affirm.2 I. The facts being well

- known to the parties, we will set forth only those pertinent to this opinion. In 1996, Brown was c onvicted 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 pu rsuing 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 Di strict Court denied th at motion, determining that Amendment 706 did not apply to Bro wn 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 things 1 , 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 dete rmined that it did not apply to defendants

1 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.)3

sentenced as career offenders and therefore could not be used to reduce his sentence. ( Id. pp. 6

- 7.) Brown timely appealed.
II. We have jurisd iction 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 Amendmen t 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 Gu idelines range were based on the application of U.S.S.G. § 4B1.1. Because Brown was not sentenced based on a4

range that was subsequently l owered by the Commission, he was not eligi ble for a reduction under § 3582(c)(2)

. See Mateo , 560 F.3d at 154

- 55. Th e 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 argu ment to be without merit, Brown , 369 F. App ’x at 390 , and

see no occas ion 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

w ell. 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 orde r 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 misp laced. Amendment 741 reorganized § 1B1.1 to clarify a three

- step approach to sentencing, while Amendment 759 merely implemented the retroactivity of Amendment 750.