ALD-277                                               NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                ___________

                                    No. 12-2858
                                    ___________

                          UNITED STATES OF AMERICA

                                          v.

                        ALBERTO FIGUEROA, a/k/a Lucky,
                                                 Appellant
                     ____________________________________

                   On Appeal from the United States District Court
                       for the Eastern District of Pennsylvania
                      (E.D. Pa. Crim. No. 5-10-cr-00335-001)
                   District Judge: Honorable Lawrence F. Stengel
                    ____________________________________

                  Submitted for Possible Dismissal as Untimely or
          Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
                                September 7, 2012
              Before: SLOVITER, FISHER and WEIS, Circuit Judges
                       (Opinion filed: September 17, 2012)
                                   ___________

                                     OPINION
                                    ___________

PER CURIAM.

      Alberto Figueroa appeals the order of the District Court, which denied his motion

to reduce sentence pursuant to 18 U.S.C. § 3582(c)(2). We will summarily affirm




                                           1
because no substantial question is presented by this appeal, Third Circuit LAR 27.4 and

I.O.P. 10.6.

                                              I.

       On June 21, 2011, Figueroa pleaded guilty to conspiracy to distribute more than

fifty grams of cocaine base (crack), in violation of 21 U.S.C. § 846, six counts of

distribution of crack, and five counts of distribution near a school, pursuant to a plea

agreement under Federal Rule of Criminal Procedure 11(c)(1)(C), in which the

Government and Figueroa stipulated that he was responsible for the distribution of 128

grams of crack and that the appropriate sentence was 120 months’ imprisonment. On

September 21, 2011, the District Court imposed the agreed-upon sentence.

       Figueroa pro se filed a motion for reduction of sentence pursuant to 18 U.S.C. §

3582(c)(2) and Amendment 750 to the sentencing guidelines. On June 8, 2012, the

District Court denied the motion, noting that Figueroa had already received the benefit of

Amendment 750.

       Figueroa filed a notice of appeal on June 25, 2012. This Court advised the parties

that this matter would be considered for possible dismissal for lack of timeliness and also

for possible summary action. In response, Figueroa claimed that the District Court did

not mail him notice of its order until June 19, 2012, and that the appeal period should

have commenced on that date. The Government did not respond.1


1
  Figueroa was required to file a notice of appeal within fourteen days after entry of the
order. Fed. R. App. P. 4(b)(1)(A). Despite the benefit of the prisoner mailbox rule,
                                             2
                                            II.

       We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. We review de

novo the District Court’s legal interpretation of relevant statutes and guidelines, and we

review for abuse of discretion the District Court’s ultimate ruling on a motion to reduce a

sentence pursuant to § 3582(c)(2).2 See United States v. Mateo, 

, 154 (3d

Cir. 2009).

                                            III.

       The Fair Sentencing Act of 2010 (FSA), Pub. L. No. 111-220, 124 Stat. 2372

(Aug. 3, 2010), altered the statutory penalties for crack cocaine offenses and directed the

Sentencing Commission to “make such conforming amendments to the Federal

sentencing guidelines as [it] determine[d] necessary to achieve consistency with other

guideline provisions and applicable law.” Dorsey v. United States, 

, 2329

(2012) (quoting the FSA § 8, 124 Stat. 2374). In response to the FSA, the Commission

Houston v. Lack, 

, 276 (1988); Fed. R. App. P. 4(c), Figueroa’s notice of
appeal was untimely. His claim that the District Court delayed proper notice of its
decision does not toll the appeal period. Long v. Atl. City Police Dep’t, 

,
442-43 (3d Cir. 2012) (discussing Poole v. Family Ct. of New Castle Cnty., 

(3d Cir. 2004)). Rule 4(b) is a non-jurisdictional, “rigid” deadline. Gov’t of V.I. v.
Martinez, 

, 328 (3d Cir. 2010). “Upon proper invocation of the rule when a
notice of appeal is filed out of time, we must dismiss the appeal.” 

Government’s lack of response constitutes a forfeiture of any available untimeliness
argument. 

  Section 3582(c)(2) grants a sentencing court discretion to reduce the prison term 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 … [provided] a
reduction is consistent with applicable policy statements issued by the Sentencing
Commission.” 18 U.S.C. § 3582(c)(2).
                                             3
promulgated a temporary amendment that reduced the base offense levels for most crack

cocaine offenses that became effective on November 1, 2010. Amendment 750 re-

promulgated the temporary amendment as permanent and became effective November 1,

2011. 

.

         Here, the probation office applied the temporary amendment to its calculation of

Figueroa’s sentencing guideline range, resulting in a range identical to that suggested by

Amendment 750.3 The District Court adopted the guideline range and imposed the

agreed-upon sentence of 120 months’ incarceration.

                                             IV.

         For the foregoing reasons, we will summarily affirm the judgment of the District

Court.




3
  Under both the temporary amendment and Amendment 750, the sentencing guideline
range is 97 to 121 months’ incarceration.
                                          4