NOT PRECEDENTIAL

        UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
                             ___________

                                      No. 08-2074
                                      ___________



                           UNITED STATES OF AMERICA

                                           v.

                           NATHANIEL MONTGOMERY,
                                             Appellant
                                 ___________

                    On Appeal from the United States District Court
                       for the Eastern District of Pennsylvania
                            (D.C. No. 2-02-cr-00172-020)

                                      ___________

                      Submitted Under Third Circuit LAR 34.1(a)
                                 on October 7, 2010


             Before: FUENTES, JORDAN and ALDISERT, Circuit Judges

                                (Filed: October 28, 2010)

                                      ___________

                              OPINION OF THE COURT
                                   ___________
ALDISERT, Circuit Judge.

      Nathaniel Montgomery appeals from a decision of the District Court for the

Eastern District of Pennsylvania, which denied his motion to reduce the sentence he is

serving for crack and powder cocaine offenses. He contends that we should reverse the
District Court’s denial of his “Motion for Reduction in Sentence Pursuant to 18 U.S.C.

§ 3582(c)(2),” both because of recent amendments to the United States Sentencing

Guidelines, and because the District Court denied his Motion without first holding an

evidentiary hearing. His contentions are foreclosed by federal statute and by United

States v. Styer, 

(3d Cir. 2009), and accordingly we will affirm. 1

                                             I.

       Because we write for the parties, who are familiar with the events that gave rise to

this appeal, we state the facts and District Court proceedings only as necessary to explain

our reasoning. A jury convicted Montgomery of conspiracy to distribute crack and

powder cocaine. At sentencing, the Court determined that he was responsible for

distributing more than 1.5 kilograms of crack cocaine and, separately, more than

150 kilograms of powder cocaine. Each finding was an independent basis for

Montgomery’s base offense level of 38 under the Guidelines. After Montgomery’s

incarceration began, Congress reduced the sentencing range for crack (but not powder)

cocaine offenses. See U.S.S.G. § 2D1.1 (2007); 

App. C, Amend. 706. He

filed a “Motion for Reduction of Sentence,” and requested an evidentiary hearing, but the

District Court denied the Motion and the hearing on the ground that his powder cocaine

conviction independently supported his sentence. Montgomery appealed.

                                            II.

       We review de novo a district court’s interpretation of the Guidelines. United States


       1
       The District Court had subject matter jurisdiction pursuant to 18 U.S.C. §§ 3231,
and 3582(c)(2). We have appellate jurisdiction pursuant to 28 U.S.C. § 1291.


                                             2
v. Mateo, 

, 154 (3d Cir. 2009). We review a district court’s denial of a

§ 3582(c)(2) motion, as well as a district court’s denial of an evidentiary hearing, for

abuse of discretion. 

. We review for plain error non-

jurisdictional issues a party raises for the first time on appeal. United States v. Vazquez,

, 99 (3d Cir. 2001) (en banc).

                                             III.

       The District Court correctly denied Montgomery’s Motion, because he did not

make a prima facie case for relief under § 3582(c)(2). Because the Motion failed as a

matter of law, the Court was within its discretion in not holding an evidentiary hearing

before ruling upon it. We therefore will affirm its decisions in all respects.

                                             A.

       Montgomery appeals from a denial of his “Motion for Reduction of Sentence

Pursuant to 18 U.S.C. § 3582(c)(2).” Section 3582(c)(2) authorizes district courts to

reduce an otherwise final sentence if it is “based on a sentencing range that has

subsequently been lowered by the Sentencing Commission.” Montgomery’s conviction

does not qualify because his sentencing range is unaffected by the amendment. The more

than 150 kilograms of powder cocaine for which he was responsible supports his base

offense level, wholly apart from any changes to the Crack Cocaine Guidelines range.

Because the amendments did not lower Montgomery’s sentencing range, the Court

correctly rejected his claim that they entitle him to a reduction.

                                              B.

       Montgomery also challenges the District Court’s decision to deny his Motion


                                              3
without holding an evidentiary hearing. He appears to raise this issue for the first time on

appeal, as it does not appear that he requested an evidentiary hearing in the District

Court, nor did he object to the Court’s decision to rule without one. Accordingly, we

review the record for plain error only, 

, and we affirm because a

hearing would not have changed the result in this case. Even assuming he did preserve

the issue, however, we would affirm the District Court. A defendant who moves to have

his sentence reduced is not entitled to an evidentiary hearing; whether to hold one is at

the discretion of the trial court. 

. In this case, the Court needed no

hearing, because there was no evidentiary issue to resolve – § 3582(c)(2) foreclosed

Montgomery’s Motion, as a matter of law. Because there was no need for a hearing, the

District Court acted within its discretion in declining to hold one.

                                              *****

       We hold that the District Court did not err in denying Montgomery’s § 3582(c)(2)

Motion, and that it acted within its discretion in declining to hold an evidentiary hearing

in this case. The judgment of the District Court will be AFFIRMED.




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