Case: 14-12405   Date Filed: 04/17/2015   Page: 1 of 3


                                                        [DO NOT PUBLISH]




             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 14-12405
                         Non-Argument Calendar
                       ________________________

                  D.C. Docket No. 1:12-cr-20879-WPD-1

UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                   versus

ANTONIO DE JESUS MUNOZ-RODRIGUEZ,

                                                         Defendant-Appellant.

                       ________________________

                Appeal from the United States District Court
                    for the Southern District of Florida
                      ________________________

                              (April 17, 2015)

Before TJOFLAT, WILSON and MARTIN, Circuit Judges.

PER CURIAM:
              Case: 14-12405      Date Filed: 04/17/2015   Page: 2 of 3


      Antonio Munoz-Rodriguez, a federal prisoner proceeding pro se, appeals the

district court’s dismissal of his motion to reconsider his sentence for lack of

jurisdiction. Munoz-Rodriguez moved to reduce his sentence under 18 U.S.C.

§ 3582(c), alleging that the district court unconstitutionally increased his

mandatory-minimum sentence by sixty months under 18 U.S.C. § 924(c) when it

found that he brandished a firearm during his crime. According to Munoz-

Rodriguez, the Supreme Court’s decision in Alleyne v. United States, 570 U.S.

___, 

(2013), makes clear that only a jury may determine facts

which increase the mandatory-minimum sentence. Upon review of the record and

consideration of the parties’ briefs, we affirm.

      We review de novo the question of whether the district court has jurisdiction

to modify a sentence. See United States v. Phillips, 

, 1194 n.9 (11th

Cir. 2010). Under § 3582(c), the district court may only modify a sentence in three

limited circumstances: (1) on motion of the Bureau of Prisons to reduce a

prisoner’s remaining time in custody; (2) in the case of a defendant whose

guideline range has been lowered by the Sentencing Commission; or (3) to the

extent otherwise provided by statute or Federal Rule of Criminal Procedure 35.

Rule 35 allows the court to (a) correct an arithmetical, technical, or other clear

error within fourteen days of sentencing, or (b) reduce a sentence based on




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substantial assistance upon the government’s motion within one year of sentencing.

Fed. R. Crim. P. 35.

       The district court lacked jurisdiction to reconsider Munoz-Rodriguez’s

sentence under § 3582(c). The motion for reconsideration was not made by the

BOP or the government. Munoz-Rodriguez’s motion was brought more than

fourteen days after sentencing. Finally, his motion did not concern a guideline

range that had been subsequently lowered by the Sentencing Commission.1 Thus,

Munoz-Rodriguez’s motion was based on an alleged constitutional violation to

which § 3582(c) is inapplicable. See United States v. Bravo, 

, 782

(11th Cir. 2000). As suggested by the district court, his constitutional challenge

might be properly made through another procedural vehicle, such as a timely

motion under 28 U.S.C. § 2255. Independent of that possibility, § 3582(c) is not

available to Munoz-Rodriguez on his current challenge.

       AFFIRMED.




1
 The United States notes in its brief before this Court that, effective November 1, 2014,
Amendment 782 to the Sentencing Guidelines may reduce the base offense level given to
Munoz-Rodriguez’s sentence from 26 to 24. See United States Sentencing Guidelines
§ 2D1.1(c)(8). While the amendment became effective after the motion at issue here was filed
and therefore does not impact our holding in this case, it may offer Munoz-Rodriguez relief in a
future motion under § 3582(c)(2).
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