NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

_____________ Nos. 09-2481, 09-2482 and 09-2483

_____________ UNITED STATES OF AMERICA

v. SANTOS MENDEZ,

Appellant

_____________ UNITED STATES OF AMERICA

v. JOSE A. MENDEZ, JR., a/k/a Jose Valentine, a/k/a Rambo Jose A. Mendez,

Appellant

_____________ UNITED STATES OF AMERICA

v. LOUIS CORDERO, a/k/a Louie Louis Cordero,

Appellant

_____________ Appeals from the United States District Court for the Eastern District of Pennsylvania (D.C. Criminal Nos. 2-03-c r-00088-001, 002 and 006)District Judge: Honorable Michael M. Baylson

_____________ Submitted Under Third Circuit LAR 34.1(a) November 4, 2010 Before: SCIRICA, RENDELL and ROTH, Circuit Judges (Opinion Filed: November 5, 2010)

_____________ OPINION OF THE COURT

_____________ RENDELL, Circuit Judge

. Santos Mendez, Jose Mendez, and Louis Co rdero (“defendants”) appeal the May 11, 2009 orders of the United States District Court for the Eastern Di strict of Pennsylvania denying their motions to reduce their senten ces pursuant to 18 U.S.C. § 3582. We will affirm the District Court’s orders. I. Background Because we write solely for th e benefit of the parties, we include only the essential facts. Defendants were indicted together on February 5, 2003 for conspiracy to distribute more than 50 grams of cocaine base and more than 1,000 grams of heroin within 1,000 feet of a school in violation of 21 U.S.C. §§ 846 a nd 860. In addition, Jose and Santos Mendez were charged with using a firearm dur ing and in relation to a drug trafficking offense, in violation of 18 U.S.C. § 924(c)(1) and possession of a firearm as a convicted felon, in violation of 18 U. S.C. § 922(g)(1). Jose Mendez was charged with another § 924(c) offense. Santos Mendez was also i ndicted separately, with others who are not parties to this appeal, for Hobbs Act robbery , conspiracy to commit Hobbs Act robbery, a 2§ 924(c) offense, and possessing a firearm as a convicted felon, in violation of 18 U.S.C. § 922(g)(1). Jose Mendez plea ded guilty to all four drug distribution counts; Louis Cordero pleaded guilty to the conspiracy count; and Santos Mendez pleaded guilty to all of the offenses in the robbery case and therea fter pleaded guilty to the three offenses he was charged with in the drug distribution case. Santos Mendez was sentenced to life im prisonment for the drug conspiracy, followed by a mandatory consecutive sentence of 7 years for a § 924(c) violation as charged in the robbery indictment, and a mand atory consecutive sentence of 25 years for the § 924(c) offense charged in the drug indictment. Jose Mendez was sentenced to 168 mont hs’ imprisonment, which included 120 months for the drug conspiracy, and 24 mont hs for each of the § 924(c) counts. The Court directed that all the sentences run cons ecutively. Louis Cordero was sentenced to 144 months’ imprisonment. Both Jose Me ndez’s and Louis Cordero’s sentences were reduced as a result of § 5K1.1 motions file d by the government based on the defendants’ substantial assistance in the investiga tion and prosecution of others. In November, 2007, two years after defe ndants were sentenced, the Sentencing Commission issued Amendment 706, which re duced 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). On March 3, 2008, the Co mmission made the amendment retroactively applicable. See U.S.S.G. App. C, Am end. 713 (Supp. May 1, 2008). Amendment 715 effectuates the two-level reduction intended by Amendment 706 for offenses involving

3both crack cocaine and anothe r controlled substance. See U.S.S.G. App. C Supp., Amend 715 (May 1, 2008). We will refer to Amendm ents 706 and 715 as “the Amendments.” In February, 2009, all three defendants file d § 3582 motions for reduction of their sentences under the Amendments. The District Court denied their motions. All three defendants filed timely appeals of the District Court’s decisions; their appeals have since been consolidated at their request. II. Analysis We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. We review the District Court’s decision to deny de fendants’ motion to reduce their sentences pursuant to § 3582(c)(2) fo r abuse of discretion. United States v. Mateo , 560 F.3d 152, 155 (3d Cir. 2009). A District Court may 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 the Sentencing Commission . . . . after considering the factors set forth in section 3553(a) to the extent that they are applicable, if such a reduction is consistent with applicable policy statements issu ed by the Sentencing Commission.” 18 U.S.C. § 3582(c)(2). Howeve r, district courts’ § 3582 authority to reduce sentences based on amended guide line 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) do es 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 4defendant’s applicable guideline range because of the operation of another guideline or statutory provision (e.g., a statutory manda tory minimum term of imprisonment).” Id. , app. note 1(A). In their § 3582 motions, defendants ar gued that the Sentencing Commission’s enactment of the Amendments lowered the senten cing ranges applicable to their offenses. We agree with the District Court that the Amendments to U.S.S.G. §2D1.1 do not apply here to lower the base offense level for de fendants’ offenses. In denying Jose Mendez and Louis Cordero’s requests for reduction, the District Court found that the Amendments did not lower the applicable guideline ranges because the ranges were based on mandatory minimum sentences higher than the §2D1.1 guideline ranges. Thus, the sentences fell outside the ambit of § 3582(c)(2)’s grant of permission to modify imprisonment terms based on lowered sentenci ng ranges. In denyi ng Santos Mendez’s motion, the District Court found that his base offense level would not have been affected by the Amendments because of the large quantity of crack cocaine he possessed. 1 On appeal, Jose Mendez and Louis Cordero cl aim that the District Court abused its discretion because its interpreta tion of the Sentencing Guide lines violated the language and purpose of the statute, failed to satisfy the goals of sentencing, strained the plain meaning of the statute, and violated the rule of lenity. Santos Mendez reiterates these

1 The District Court found that due to the large quantity of crack he was found in possession of, defendant would have been assigne d a base offense level of 38 even if he had been sentenced directly pursuant to § 2D1.1. Theref ore, he was not entitled to a reduction in his sentence under § 3582(c)(2). See United States v. Mateo , 560 F.3d 152, 155 (3d Cir. 2009). 56 claims and further asserts that his sentence should be reduced based on considerations of “fundamental fairness.” The District Court did not abuse its discretion. Jose Mendez and Louis Cordero claim that they are entitled to a reduced sentence because § 3582(c) requires only that a sentence be “based on” a lowere d § 2D1.1 range and their senten ces were, at least in part, based on a reduced range. They also argue that the Commission’s policy statements are merely “advisory” and that the District Cour t erred in treating them as binding. We rejected these precise arguments in United States v. Doe , 564 F.3d 305 (3d Cir. 2009), where we found that the Commi ssion’s policy statements are indeed binding and “require that the amendment must actually have had the effect of lowering the Guideline range.” Id. at 310-11. Accordingly, we held that the Amendments did not lower the guideline range applicable to defendant Doe’s offens e, because the range was set by a mandatory minimum and not by § 2D1.1. Id. at 315. The District Court correctly denied Cordero and Jose Mendez’s claims. We also agree with the District Court’s conclusion that Santos Mendez’s guideline range was not subject to the Am endments’ reduction because of the large quantity of cocaine Mendez possessed. Sant os Mendez’s “fundamental fairness” and policy arguments do not overcome the Sent encing Guidelines’ unambiguous limitation – that a sentence may be reduced only when it was based on a range lowered by a guideline amendment. For the foregoing reasons, we will affirm th e District Court’s judgments as to all of the defendants.