BLD-076 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 19-1921

___________

UNITED STATES OF AMERICA

v.

JOSEPH A. DUNSTON,

Appellant

____________________________________

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. Criminal Action No. 2-08-cr-00289-001)

District Judge: Honorable Paul S. Diamond

____________________________________

Submitted for Possible Summary Action Pursuant to 

Third Circuit L.A.R. 27.4 and I.O.P. 10.6

December 30, 2019

Before: AMBRO, GREENAWAY, JR. and BIBAS, Circuit Judges

(Opinion filed: January 30, 2020)

_________

OPINION*

_________

PER CURIAM

 * This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not 

constitute binding precedent.
2

Pro se appellant Joseph Dunston seeks review of the District Court’s order 

denying his motion for reduction of sentence pursuant to 18 U.S.C. § 3582(c)(2). We 

have jurisdiction pursuant to 28 U.S.C. § 1291,

1 and our review is plenary. See United 

States v. Weatherspoon, 696 F.3d 416, 420 (3d Cir. 2012). Because the appeal fails to 

present a substantial question, we will grant the Government’s motion to summarily 

affirm the District Court’s judgment. See 3d Cir. LAR 27.4 & I.O.P. 10.6. 

Dunston, a federal prisoner, pleaded guilty in 2009 in the United States District 

Court for the Eastern District of Pennsylvania to conspiracy to commit armed bank 

robbery, armed bank robbery, and carrying a firearm during and in relation to a crime of 

violence. He was sentenced to 199 months’ imprisonment, including concurrent 115-

month terms on the conspiracy and armed robbery counts. On direct appeal, we vacated 

the sentence on the conspiracy charge as exceeding the maximum under 18 U.S.C. § 371. 

See United States v. Dunston, 414 F. App’x 488, 491-92 (3d Cir. 2011). On remand, 

Dunston was sentenced again to 199 months’ imprisonment. At the resentencing hearing, 

the District Court applied United States Sentencing Guidelines (U.S.S.G.) Amendment 

 1 Even assuming that Dunston did not file his notice of appeal within 14 days of the 

District Court’s order as required by Fed. R. App. P. 4(b), as he claims he did by 

submitting an earlier version of his notice of appeal to prison authorities for mailing, Rule 

4(b) is not jurisdictional. See Gov’t of the V.I. v. Martinez, 620 F.3d 321, 328 (3d Cir. 

2010). We decline to dismiss the appeal sua sponte (assuming that we have the authority 

to do so) because the delay was short and the Government has not objected. See id. at 

329 n.6.
3

742, which became effective on Nov. 1, 2010, and eliminated “recency points” – points 

added to a criminal history score where the offense of conviction was committed within 

two years of release from imprisonment on a prior conviction. See U.S.S.G. Manual 

Supp. to App. C., Amend. 742 (2010). The District Court determined that Amendment 

742 reduced Dunston’s total criminal history points from 17 to 16, but that it did not 

affect his criminal history category, and, therefore, his advisory guidelines range 

remained the same. On appeal, we granted the Government’s motion to enforce the 

appellate waiver provision in the plea agreement and summarily affirmed the District 

Court’s judgment. See C.A. No. 12-1492, order entered June 11, 2012.

In March 2019, Dunston filed a motion to reduce his sentence pursuant to 18 

U.S.C. § 3582(c)(2) based on U.S.S.G. Amendments 709 and 742. The District Court 

denied the motion, and this appeal ensued. 

The District Court properly concluded that Dunston was ineligible for a sentence 

reduction. Section 3582(c)(2) authorizes a district court to modify or reduce a 

defendant’s sentence if the sentence range has subsequently been lowered by the 

Sentencing Commission pursuant to 28 U.S.C. § 994(o). See Dillon v. United States, 560 

U.S. 817, 825-26 (2018) (noting that § 3582 “applies only to a limited class of prisoners –

namely, those whose sentence was based on a sentencing range subsequently lowered by 

the Commission”). Like Amendment 742, Amendment 709 was in effect at the time 

Dunston was resentenced in 2012; it became effective on November 1, 2007 and restated 

the rules for determining when multiple crimes are counted as one for criminal history 
4

purposes. Moreover, the District Court noted that it applied both amended guidelines at 

resentencing and determined that neither afforded him relief. We note that, to the extent 

that Dunston argues that the District Court erred in applying the amendments at his 

resentencing, he cannot circumvent his appellate waiver by seeking review of his 

sentence through a § 3582 motion. 

Based on the foregoing, we will affirm the District Court’s order.

2

 2 The Government’s motion to be excused from filing a brief is granted. We note that 

this Court’s August 27, 2019 order in C.A. No. 19-2558, granting Dunston’s application 

pursuant to 28 U.S.C. § 2244, does not moot this appeal. Accordingly, we take no action 

on Appellant’s letters filed on November 4 and November 22, 2019.