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w . v i l l a no v a . e du/thir dc ir c uit_2012/328NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

___________ No. 1 2

- 1699

___________ UNITED STATES OF AMERICA

v. MICHAEL NIXON, Appellant

____________________________________ On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. C rim. No. 93

- cr - 00386

- 004 ) District Judge: Honorable Harvey Bartle, III

____________________________________ Submitted Pursuant to Third Circuit LAR 34.1(a) Octobe r 1, 2012
Before: JORDAN, HARDIMAN and ALDISERT , Circuit Judges (Opinion filed : October 2, 2012 )

___________

OPINION

___________ PER CURIAM

. In 1994, a jury in the United States District Court for the Eastern District of Pennsylvania convicted Michael Nixon of conspiracy to distribute in excess of 50 grams
of crack cocaine , in violation of 21 U.S.C. § 841(a)(1). At sentencing, the District Court determined that Nixon was responsible for the distribution of between 1.5 and 4.8 kilos of2 crack cocaine

. With a total offense level of 44 and a criminal history category of VI,
Nixon’s guideline s sentencing range called for life imprisonment, which is the sentence
that the District Court imposed. T his Court affirmed on direct appeal

. T he District Court
later deni ed Nixon’s collateral review motion under 28 U.S.C. § 2255. In 2001, Nixon filed the first of four motions seeking to reduc e his sentence under 18 U.S.C. § 3582(c)(2). 1

In 2005, Nixon filed motion number two , seeking relief in light of United States v.
Booker , 543 U.S. 220 (2005). T he District Court denied the motion. His first motion invoked Amendment 591 . T he District Court
held that this a mendment reduced Nixon’s total offense level from 44 to 43, but because
Nixon’s guidelines sentencing range remained life imprisonment , the Court de nied relief

.

In 2008, Nixon ’s third § 3582(c)(2) motion invoked Amendment 706, which
reduced the base offense levels for many crack offenses and was made retroactive. The
District Court conclud ed that A mendment 706 l ower ed Nixon’s total offense level to 41,
and reduced his guidelines sentencing range to 360 months to life imprisonment . Th e District Court granted relief and reduced Nixon’s sentence to 360 months in prison

. In 2012, Nixon filed his fourth § 3582(c)(2) motion, which is the subject of this appeal. Nixon , with the assistance of counsel, invoked Amendment 750, which reduced
the base offense levels for most crack offenses in light of the Fair Sentencing Act of 2010

1 Section 3582(c)(2) is “ a statutory provision enacted to permit defendants whose Guidelines sentencing range has been lowered by retroactive a mendment to move for a sentence reduction if the terms of the statute are met. ” Freeman v. United States , 131 S. Ct. 2685, 269 0

- 91 (2011) (plurality opinion).3 and was made retroactive effective Novemb er 1, 2011 . The government argued that
Amendment 750 d oes not lower Nixon’s sentencing range below 360 months to life imprisonment , and therefore provides no basis for relief . The District Court agreed and
denied the § 3582(c)(2) motion . It explain ed th at, under Amendment 750, Nixon’s total
offense level is lowered to 39 , but w ith a criminal history c ategory of VI, his guidelines sentencing range remains 360 months to life. Nixon ti mely filed this pro se appeal.
We have appellate juri sdiction under 28 U.S.C. § 1291 . Exercising plenary review, see Un ited States v. Hanlin , 48 F.3d 121, 124 (3d Cir. 1995) , we will affirm. As the District Court correctly explained , Nixon’s guidelines sentencing range i s not lowered
under Amendment 750 ; it remains 360 mont hs to life imprisonment

. Because a sentence
reduction cannot be afforded w hen a retroactively applicable amendment “ does not have the effect of lowering the defendant’s applicable guideline range , ” U.S.S.G. § 1B1.10(a)(2)(B) , the District Court properly d enied Nixon’s § 3582(c)(2) motion. See
Dillon v. United States , 130 S. Ct. 2683, 2691 (2010) (“ A court must first determine that a reduction is consistent with § 1B1.10 before it may consider whether the authorized reduction is warranted, either in whole or in part, according to the factors set forth in § 3553(a). ”) ; United States v. Doe , 564 F.3d 305, 314 (3d Cir. 2009) (“ The language of § 3582(c)(2) could not be clearer: the statute predicates authority to reduce a defendant ’ s
sentence on consistence wit h the policy statement, and the policy statement provides that a reduction is not consistent if the amendment does not have the effect of lowering the
defendant ’ s applicable Guideline range. ”)

.4 In his brief on appeal, Nixon points to no error in the Distr ict Court’s analysis , and
in fact he appears to concede that the District Court was correct in its application of
Amendment 750. See Reply Br. at 2. Nixon argue s instead that he is entitled to relief
due to alle ged “jurisdi ctional defects ” in his case , c laiming that , once those defects are
remedie d , he will be entitled to relief under Amendment 750

. 2

We agree with the government that Nixon’s failure to raise these new arguments before the District Court precludes their consideration on appeal. See, e.g. , Nelson v. Adams USA, Inc. , 529 U.S. 460, 469 (2000) (observing that generally “issues must be
raised in lower courts in order to be preserved as potential grounds of decision in higher
courts” )

. In any event , as the government also correctly explains in its brief , Nixon’s various arguments afford no basis for relief under the limited remedy made availab le to
defendants in a § 3582(c)(2) proceeding

. Nixon also claims that h e

was prejudiced by the alleged ineffective ness of his counsel in this proceeding and in the 2008 proceeding under § 3582(c)(2).

For these reasons, w e will affirm the District Court’s judgme n t

.

2 Nixon’s primary assertion is that the jury, not the District Court, had to make findings of fa ct regarding drug quantity and to support the various enhancements applied at his sentencing proceeding, and that the sentence, therefore, violates United States v. Booker , 543 U.S. 220 (2005), and its progeny. It is settled, however, that Booker does not apply retroactively to cases, like Nixon’s, that became final prior to issuance of the Booker decision. See Lloyd v. United States , 407 F.3d 608, 616 (3d Cir. 2005). Moreover, we have held that “ the constitutional holding in Booker does not apply to § 3 582(c)(2). ” United States v. Doe , 564 F.3d 305, 313 (3d Cir. 2009)

. Nixon’s arguments based on Booker are therefore misplaced.