[DO NOT PUBLISH]



                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT            FILED
                              ________________________ U.S. COURT OF APPEALS
                                                                     ELEVENTH CIRCUIT
                                                                     NOVEMBER 29, 2010
                                    No. 09-12792
                                                                         JOHN LEY
                              ________________________
                                                                          CLERK

                         D. C. Docket No. 04-00014-CR-BAE-6

UNITED STATES OF AMERICA,


                                                                          Plaintiff-Appellee,

                                            versus

JENNIFER BLAINE,
a.k.a. Jennifer Walker,

                                                                      Defendant-Appellant.


                              ________________________

                      Appeal from the United States District Court
                         for the Southern District of Georgia
                           _________________________

                                   (November 29, 2010)

Before HULL and MARCUS, Circuit Judges, and WHITTEMORE,* District
Judge.

       *
         Honorable James D. Whittemore, United States District Judge for the Middle District of
Florida, sitting by designation.
HULL, Circuit Judge:

       Defendant Jennifer Blaine appeals the district court’s (a) denial of her 18

U.S.C. § 3582(c)(2) motion for a sentence reduction based on Amendment 706 to

the Sentencing Guidelines, (b) denial of her motion for reconsideration, and (c)

denial of her motion for appointment of counsel in her § 3582(c)(2) proceedings.

After review and oral argument, we affirm in part and dismiss in part.

                              I. FACTUAL BACKGROUND

A.     Blaine’s 2004 Sentence

       On September 22, 2004, Defendant Jennifer Blaine (“Blaine”) pled guilty to

distribution of 5 grams or more of cocaine base (“crack”), in violation of 21 U.S.C.

§ 841(a).

       The Presentence Investigation Report (“PSI”) assigned Blaine a criminal

history category of II based on: (1) one point for a 2001 affray conviction, and (2)

two points for being on probation for the affray conviction when she committed the

instant cocaine offense. The PSI reported Blaine’s total offense level was 32,1 and

       1
          Blaine’s base offense level for her drug conviction was determined with reference to
“[t]he offense level specified in the Drug Quantity Table set forth in subsection (c).” U.S.S.G.
§ 2D.1.1(a)(3) (2004). The PSI attributed to Blaine a drug quantity of 134.6 grams of crack
cocaine based on the drugs involved in the transactions on February 6, 2002, February 21, 2002,
and August 28, 2002. Pursuant to the 2004 version of the Drug Quantity Table, the PSI assigned
Blaine a base offense level of 32 because her offense involved at least 50 grams but less than
150 grams of crack cocaine. See U.S.S.G. § 2D1.1(c)(4)(2004). Blaine did not appeal the
district court’s drug quantity finding or the district court’s guidelines calculations based on that

                                                 2
Blaine’s criminal history category was II, yielding an advisory guidelines range of

135 to 168 months’ imprisonment.

           At the sentencing hearing, the district court removed the two criminal

history points for being on probation, and thus Blaine’s criminal history became

category I. The government did not object to the reduction of Blaine’s criminal

history from category II to I.2 Based upon a total offense level of 32 and a criminal

history category of I, Blaine’s advisory guidelines range became 121to 151

months’ imprisonment.

       At sentencing, the probation officer testified that Blaine had tested positive

for cocaine after pleading guilty but prior to sentencing. The probation officer also

pointed out that reducing Blaine’s criminal history to category I made her eligible

for a safety valve reduction. In response, the district court said, “I will consider it,



drug quantity finding.
       2
         The district court stated, “I think I will roll back those two points. Recalculate it
[Probation Officer] Highsmith.” The district court confirmed that the government had no
objection to recalculating Blaine’s criminal history, but stated, “While I’m ruling against the
probation officer, I think legally he is correct . . . .” This colloquy then occurred:
                District Court: What is the Total Offense Level now.
                Mr. Highsmith: It would stay at 32.
                District Court: All right.
                Mr. Highsmith: And the Criminal History Category would be one.
                District Court: All right.
                Mr. Highsmith: That would be 121 months to 151 months imprisonment.
                District Court: Very good. Now, does the government wish to be heard as
        to the appropriate sentence, Mr. Kramer?
                Mr. Kramer: No, Your Honor. We do not.

                                                 3
but I’m not going to implement it.” The district court sentenced Blaine to 121

months’ imprisonment, which was at the low end of the advisory guidelines range.

      In its subsequent written Statement of Reasons dated December 15, 2004,

the district court indicated that it was adopting the PSI and guidelines applications

without change. The Statement of Reasons did not refer to a category I criminal

history, but stated that Blaine’s total offense level was 32, her criminal history

category was II, and imprisonment range before departures was 135 to 168 months.

The Statement of Reasons indicated that a U.S.S.G. § 4A1.3 departure below the

guidelines range was appropriate because “a criminal history category of II

substantially over-represents the seriousness of the defendant’s criminal history.”

      Blaine did not appeal her original 121-month sentence. On June 7, 2005,

Blaine filed a motion to vacate her crack cocaine conviction, which was denied by

the district court on October 24, 2005.

B.    Blaine’s 2008 Motion under § 3582(c)(2)

      In 2007, the Sentencing Commission promulgated amendments to the

Sentencing Guidelines, which retroactively lowered, by two levels, most of the

base offense levels applicable to crack cocaine offenses. See U.S.S.G. app. C,

amends. 706, 713. The amended Drug Quantity Table provides for a base offense

level of 30 for offenses involving at least 50 grams but less than 150 grams of



                                           4
crack cocaine. See U.S.S.G. § 2D1.1(c)(5)(2009). Thus, after Amendment 706,

the applicable base offense level for Blaine’s offense was lowered from 32 to 30.

      On January 25, 2008, Blaine filed a motion for the appointment of counsel to

assist her in filing a sentencing reduction motion under 18 U.S.C. § 3582(c)(2). In

an order dated March 5, 2008, the magistrate judge denied Blaine’s motion to

appoint counsel.

      On March 11, 2008, Blaine filed, pro se, a § 3582(c)(2) motion to reduce her

121-month sentence based on Amendment 706. On June 23, 2008, the district

court denied Blaine’s §3582(c)(2) motion. The district court found that Blaine’s

previous offense level was 32, she had a criminal history category of II, with a

resulting advisory guidelines range of 135 to 168 months’ imprisonment.

Applying Amendment 706’s two-level reduction, the district court found that

Blaine’s amended offense level was 30 and her criminal history category was II,

with a resulting amended guidelines range of 108 to 135 months’ imprisonment.

The district court then found that Blaine’s original 121-month sentence fell within

her new guidelines range of 108 to 135 months, that the sentencing court had

departed below Blaine’s original guidelines range of 135 to 168 months, and that

“a sentence of 121 months adequately addresses the sentencing factors found at 18




                                          5
U.S.C. § 3553(a).”3

       Blaine had 14 days, or until July 7, 2008, to appeal the denial of her

§ 3582(c)(2) motion. See Fed. R. App. P. 4(b)(1)(A).4 Blaine did not file a notice

of appeal within that time frame.

C.     Blaine’s Motion for Reconsideration

       On July 16, 2008, Blaine filed a motion for reconsideration of the June 23,

2008 denial of her § 3582(c)(2) motion. Blaine’s motion for reconsideration was

filed 23 days after that June 23 denial.

       Blaine’s motion for reconsideration argued that, in denying her § 3582(c)(2)

motion, the district court incorrectly recalculated Blaine’s new base offense level

and new guidelines range in accordance with the findings of the court during the

original sentencing. Blaine pointed out that (1) her original sentence was based on

an offense level of 32 and a criminal history category of I, resulting in an advisory



       3
        The same district court judge who originally sentenced Blaine and wrote the Statement
of Reasons also ruled on Blaine’s motions in her § 3582(c) proceedings.
       4
         In 2008 and until December 1, 2009, former Rule 4(b) gave a criminal defendant ten
days from the entry of the order appealed to file a notice of appeal. Fed. R. App. P. 4(b)(1)(A)(i)
(2009). The current filing deadline of fourteen days in Rule 4(b) went into effect on December
1, 2009. The Supreme Court’s order amending the Federal Rules of Appellate Procedure instruct
that the amendments “shall govern all proceedings in appellate cases” commenced after
December 1, 2009 “and, insofar as just and practicable, all proceedings then pending.” Order of
March 26, 2009.
        Because Blaine’s appeal before this Court was pending as of December 1, 2009, and the
amendments have no material effect on the outcome of this appeal, we exercise our discretion
and apply the amended fourteen-day period in Rule 4(b) throughout this opinion.

                                                 6
guidelines range of 121 to151 months, (2) that her 121-month sentence was at the

low end of that initial range, (3) that a two-level reduction in her base offense level

(based upon Amendment 706) results in a base offense level of 30, which with her

criminal history of category I, yields a new advisory guidelines range of 97 to121

months, and (4) that her new sentence should be 97 months, which is at the low

end of that recalculated range.5

       On April 9, 2009, the district court denied Blaine’s motion for

reconsideration for the same reasons stated in its earlier denial of Blaine’s

§ 3582(c)(2) motion.

D.     Blaine’s Notice of Appeal

       Blaine then filed a notice of appeal, in which she, pro se, appealed the

district court’s orders entered on March 5, 2008 (denial of counsel), June 23, 2008

(denial of § 3582(c)(2) motion), and April 9, 2009 (denial of motion of


       5
          Blaine’s motion for reconsideration also argued that, at the original 2004 sentencing, the
district court erred by using the 134.6 grams-quantity (the PSI attributed to Blaine) to determine
Blaine’s initial offense level of 32. Blaine’s motion argued that the 134.6-gram amount was not
admitted during her guilty plea or submitted to a jury and proven beyond a reasonable doubt.
Blaine’s motion contended that the district court was required to use only the 18 to 20 gram
amount to which she stipulated at the time of her negotiated guilty plea and that in 2004 her
correct base offense level was 26, which, after Amendment 706, should be reduced to level 24.
Blaine does not raise this argument on appeal, and, in any event, this argument is outside the
limited scope of a § 3582(c)(2) proceeding. See United States v. Bravo, 

, 781-82
(11th Cir. 2000) (explaining that in § 3582(c)(2) proceedings, “all original sentencing
determinations remain unchanged with the sole exception of” the amended guideline, which the
district court substitutes to recalculate the guidelines range before deciding whether to exercise
its discretion to either impose a new sentence or retain the old sentence).

                                                 7
reconsideration). Attached to Blaine’s notice of appeal was a statement signed by

Blaine certifying that on April 16, 2009 she placed the notice of appeal in the

hands of prison officials with first class postage for mailing. However, Blaine’s

notice of appeal was not docketed in the district court until May 29, 2009.

      On August 18, 2009, the district court entered an order granting Blaine’s

motion to appeal in forma pauperis. In that order, the district court addressed

Blaine’s original 121-month sentence and the issue of whether that court had

actually ruled that Blaine’s criminal history was category I or whether it had

granted a downward departure at the original sentencing, stating:

             At sentencing, Blaine’s counsel effectively argued that such a
      history did not justify assigning Blaine a criminal history category of
      II. Thus, the Court sentenced her to 121 months, which was the
      lowest sentence in the range that she would have been assigned if she
      had been assigned a criminal history of I. The Court felt that this
      sentence best served the interests of justice. The government agreed
      with the sentence and did not object to the Court’s action.
             There is confusion over whether the Court originally granted
      Blaine a downward departure or whether it had actually ruled that her
      criminal history should be I.        After reviewing the sentencing
      transcript, there is certainly language supporting Blaine’s contention
      that the Court found that she had a criminal history of I. On the other
      hand, the Court noted that the parole officer was “legally correct” to
      assign Blaine a criminal history category of II. When this Court ruled
      on Blaine’s motion for a sentence reduction, its view was that it had
      originally “departed below [Blaine]’s original guideline range.”
      Admittedly, the Court could have made it clearer during sentencing
      whether it was granting a downward departure or actually ruling that
      Blaine’s criminal history should be I.
             In any event, even if Blaine’s sentencing guideline range were

                                          8
      recalculated based on a criminal history of I, Blaine’s current sentence
      would fall within the amended guideline range (albeit at the high end)
      of 97 to 121 months. In denying Blaine’s motion for a sentence
      reduction, the Court found that the sentence falls within the amended
      guideline range and adequately addresses the sentencing factors set
      forth in 18 U.S.C. § 3553(a). That remains true whether Blaine’s
      sentence was originally calculated based on a criminal history of I or
      II.

(Citations omitted, brackets in original.) Of importance here is the district court’s

determination that it would impose the same 121-month sentence whether Blaine’s

criminal history category was I or II.

E.    Briefing on Appeal as to § 3582(c) Proceedings

      On August 31, 2009, Blaine, pro se, filed her brief on appeal.

On September 28, 2009, the government filed its brief claiming Blaine’s appeal

was not timely filed.

      On January 19, 2010, this Court appointed counsel for Blaine and directed

the parties to file supplemental briefs addressing these issues: (1) Whether Blaine’s

pro se notice of appeal was timely filed as to either the denial of Blaine’s 18 U.S.C.

§ 3582(c)(2) motion to reduce her sentence or the denial of Blaine’s motion for

reconsideration; and (2) whether, in light of Eberhart v. United States, 

,

(2005), this Court has jurisdiction although Blaine’s motion for

reconsideration was dated July 16, 2008, more than fourteen days after entry of the

district court’s June 23, 2008 order denying Blaine’s § 3582(c)(2) motion.

                                           9
                                    II. DISCUSSION

       On appeal, the government argues that Blaine’s notice of appeal was

docketed on May 29, 2009, and is untimely as to both (1) the April 9, 2009 denial

of her motion for reconsideration and (2) the June 23, 2008 denial of her § 3582(c)

motion. Blaine replies that she timely submitted her notice of appeal to prison

officials on April 16, 2009, making it timely as to the April 9, 2009 denial of her

motion for reconsideration. Blaine also contends her motion for reconsideration

tolled the time for appealing the June 23, 2008 denial of her § 3582(c) motion. We

first review the relevant general principles and then apply them to Blaine’s appeal.6

A.     Time Requirements for Notice of Appeal

       To be timely, a defendant’s notice of appeal in a criminal case must be filed

in the district court no later than fourteen days after the challenged order is entered.

See Fed. R. App. P. 4(b)(1)(A). However, unlike the civil appeal rules, the

deadline in Rule 4(b) for criminal defendants is not jurisdictional because it is not

grounded in a federal statute. United States v. Lopez, 

, 1311-13

(11th Cir. 2009). Nevertheless, this Court must apply the Rule 4(b) time limits

upon objection by the government to a defendant’s untimely notice of appeal.

. Specifically, this Court, in Lopez, held that “[t]ime


       6
       We review questions of appellate jurisdiction de novo. United States v. Cartwright, 

, 1299 (11th Cir. 2005).

                                              10
limitations in court-adopted rules of procedure are not jurisdictional; those

deadlines provide rules for processing claims that ‘assure relief to a party properly

raising them, but do not compel the same result if the party forfeits them.’” 

(quoting and applying rule recognized in Eberhart v. United States, 

, 19, 

, 407 (2005)). In Lopez, this Court also held that an appellee

does not forfeit its objection to an untimely filed notice of appeal by raising it for

the first time in its merits brief, noting that “[t]here is no provision in the Federal

Rule of Criminal Procedure or the Federal Rule of Appellate Procedure requiring

earlier objection to a late notice of appeal.” 

(quoting United States v.

Garduno, 

, 1292 (10th Cir. 2007)).

      A notice of appeal filed by a pro se prisoner is deemed filed on the date the

prisoner delivers it to prison authorities for mailing or places it in the prison mail

system. See Fed. R. App. P. 4(c); Houston v. Lack, 

, 276, 

, 2385 (1988); Williams v. McNeil, 

, 1290 n.2 (11th Cir.), cert.

denied, __ U.S. __, 

(2009). “Timely filing may be shown by a

declaration in compliance with 28 U.S.C. § 1746 or by a notarized statement, either

of which must set forth the date of deposit and state that first-class postage has

been prepaid.” Fed. R. App. P. 4(c)(1). Absent evidence to the contrary, there is a

presumption that a prisoner delivered her pleading to prison officials on “the day



                                            11
[she] signed it.” See Washington v. United States, 

, 1301 (11th Cir.

2001).

B.       Blaine’s Notice of Appeal

         Turning to Blaine’s appeal, we recognize that the government’s brief on

appeal contends this Court should use May 29, 2009 as the date Blaine filed her

notice of appeal in her § 3582(c) proceedings. Because Blaine, on April 16, 2009,

placed her notice of appeal in the hands of prison officials with first class postage

affixed, we use April 16, 2009 as the appeal date and not the May 29, 2009 date

her notice of appeal was docketed in the district court. See 

(concluding that “notice of appeal [is] filed at the time [the prisoner] delivered

it to the prison authorities for forwarding it to the court clerk.”).

         Because Blaine’s notice of appeal is deemed filed on April 16, 2009, her

notice is timely filed as to the district court’s April 9, 2009 denial of Blaine’s

motion for reconsideration. See 

. However,

Blaine’s April 16, 2009 notice of appeal is not timely filed as to the district court’s

June 23, 2008 order denying her § 3582(c)(2) motion for several reasons, any one

of which is sufficient.

         First, the government has not forfeited its objection to Blaine’s untimely

notice of appeal because it properly objected in this Court. Because the



                                            12
government has not forfeited its objection to Blaine’s untimely notice of appeal,

we must apply the time limits of Rule 4(b). See 

. Under

Rule 4(b), Blaine had fourteen days from June 23, 2008, or until July 7, 2008, to

appeal the district court’s denial of her § 3582(c) motion. See Fed. R. App. P.

26(a)(1) (counting every day, including intermediate Saturdays, Sundays and legal

holidays).7 Blaine’s notice of appeal was not filed until April 16, 2009, and is

therefore untimely under Rule 4(b).

       Second, we recognize that Rule 4(b)(4) permits the district court, upon a

finding of excusable neglect or good cause, to extend the time for Blaine to file a

notice of appeal by no more than thirty days from the fourteen-day deadline of July

7, 2008. See Fed. R. App. P. 4(b)(4); United States v. Ward, 

, 1317-

18 (11th Cir. 1983). That thirty-day period ended on August 6, 2008, but again,

Blaine did not file her notice of appeal until April 16, 2009. After August 6, 2008,

the district court, even upon a finding of excusable neglect or good cause, was not

authorized to grant Blaine’s untimely notice of appeal. Thus, a remand would not



       7
         Under either the ten-day or the fourteen-day version of Rule 4(b), Blaine’s April 16,
2009 notice of appeal is untimely. See supra note 6.
        To the extent Blaine’s counsel suggests we should treat her § 3582 proceeding as a civil
proceeding and use a thirty-day appeal time, this Court and other circuits have already concluded
that a § 3582(c)(2) proceeding is not civil in nature. United States v. Webb, 

, 794
(11th Cir. 2009) (indicating § 3582(c)(2) motions are “a continuation of a criminal case” rather
than a “civil post-conviction action like a habeas petition” (quotation marks omitted)); United
States v. Fair, 

, 1318 (11th Cir. 2003) (same and listing other circuit cases).

                                               13
aid Blaine because her April 16, 2009 notice of appeal would still be untimely even

if she showed excusable neglect or good cause.

       Third, Blaine’s July 16, 2008 motion for reconsideration did not toll the

appeal period as to the district court’s June 23, 2008 denial of her § 3582(c)

motion. Although not expressly authorized by the Federal Rules of Criminal

Procedure, a motion for reconsideration of an appealable criminal order will toll

the time for filing a notice of appeal if such motion is filed within the appeal

period. See United States v. Dieter, 

, 8-9, 

, 19-20 (1976);

United States v. Vicaria, 

, 1413-14 (11th Cir. 1992). As noted

above, Blaine had fourteen days, or until July 7, 2008, to appeal the June 23, 2008

denial of her § 3582(c) motion. Accordingly, Blaine had to file her motion for

reconsideration within fourteen days, or by July 7, 2008, in order to toll the time

for filing a notice of appeal. Blaine did not file her motion for reconsideration

until July 16, 2008, and thus no tolling occurred.8


       8
         We reject Blaine’s argument that her procedural due process rights were violated. “[A]
§ 3582(c)(2) motion is simply a vehicle through which appropriately sentenced prisoners can
urge the court to exercise leniency to give certain defendants the benefits of an amendment to the
Guidelines, rather than a challenge to the appropriateness of the original sentence.” United
States v. Webb, 

, 794 (11th Cir. 2009) (quotation marks omitted). A defendant
bringing a § 3582(c)(2) motion has no statutory or constitutional right to appointed counsel or to
a hearing before the district court or to be present at such a hearing. 

There is also no
statutory or other requirement that district courts in their § 3582(c)(2) orders must advise
defendants in writing that they have ten or fourteen days to appeal the ruling on a § 3582(c)(2)
motion. Under the mailbox rule, all Blaine had to do was give her notice of appeal to the prison
officials by either July 7, 2008, or at least by August 6, 2008, seeking a thirty-day extension

                                                 14
       For all these reasons, Blaine’s notice of appeal is untimely as to the district

court’s denial of her March 5, 2008 request for appointed counsel and the June 23,

2008 denial of her § 3582(c)(2) motion.9 We therefore dismiss Blaine’s appeal as

to these two orders and address only the district court’s April 9, 2009 denial of

Blaine’s motion for reconsideration, the only order for which Blaine’s notice of

appeal is timely.

C.     Motion for Reconsideration

       Blaine argues that the district court should have granted her motion for

reconsideration because the district court failed to properly recalculate her

guidelines range using a criminal history category I.

       We affirm the district court’s denial of Blaine’s motion for reconsideration

because, by the time Blaine filed her motion on July 16, 2008, the district court

lacked jurisdiction to modify Blaine’s 121-month sentence (reimposed effectively

on June 23, 2008). See United States v. Phillips, 

, 1198 (11th Cir.

2010). The authority of a district court to modify a sentence “is narrowly limited



under Rule 4(b)(4). Given that the rules build in a thirty-day extension for excusable neglect, we
see no due process violation where Blaine did not file her notice of appeal until April 6, 2009.
       9
         Blaine’s April 16, 2009 notice of appeal is even more untimely as to the district court’s
March 5, 2008 order denying her motion for appointed counsel. Blaine’s notice of appeal was
not filed within either the fourteen-day period in Rule 4(b)(1)(a) or the thirty-day period in Rule
4(b)(4). Nor did she file a motion for reconsideration within fourteen days of that March 5, 2008
order to toll the time for filing the notice of appeal.

                                                15
by statute.” 

Under § 3582(c), “a court may not modify an

imprisonment sentence except in these three circumstances: (1) where the Bureau

of Prisons has filed a motion and either extraordinary and compelling reasons

warrant a reduction or the defendant is at least 70 years old and meets certain other

requirements; (2) where another statute or Federal Rule of Criminal Procedure 35

expressly permits a sentence modification; or (3) where a defendant has been

sentenced to a term of imprisonment based on a sentencing range that was

subsequently lowered by the Commission and certain other requirements are met.”

(citations omitted); see also 18 U.S.C. § 3582(c)(1)-

(2). “This Court has held that the seven-day time limit in Rule 35(a) is

jurisdictional, and outside of Rule 35(c) there exists no ‘inherent authority’ for a

district court to modify its sentence.” 

      In its order denying Blaine’s § 3582(c)(2) motion, the district court, in fact,

modified Blaine’s sentencing guidelines range from 135 to 168 months’

imprisonment to 108 to 135 months’ imprisonment. However, after considering

the § 3553(a) factors, the district court reimposed the original 121-month sentence.

After ruling on Blaine’s § 3582(c)(2) sentencing motion, albeit with no change in

the duration of her sentence, the district court’s jurisdiction to modify Blaine’s

sentence was constrained. Once the district court denied Blaine’s § 3582(c)(2)



                                           16
motion, the district court did not have authority to modify her sentence except as

expressly provided by Rule 35. 

(stating that “absent

other express statutory authority, modification of an imprisonment sentence can

only be done pursuant to Rule 35”). Under Phillips and Rule 35, the district court

had the power to correct any clear error in Blaine’s reimposed sentence within

seven days of sentencing (i.e., within seven days of denial of Blaine’s § 3582(c)

motion on June 23, 2008).10 Because Blaine filed her motion for reconsideration

on July 16, 2008, after the seven-day period expired on June 30, 2008, the district

court had no jurisdiction to act.

       AFFIRMED IN PART; DISMISSED IN PART.




       10
         In Phillips, this Court said, “We recognize that in a § 3582(c)(2) matter, all original
sentencing determinations remain unchanged with the sole exception of the guideline range that
has been amended since the original sentencing. . . . But the tasks the district court does have in a
§ 3582 proceeding show it is a sentencing, albeit a truncated 

(citations
and internal quotation marks omitted). Although the district court in Phillips granted the
defendant’s § 3582(c)(2) motion and reduced the sentence by 36 months, 

this
principle applies equally when the district court, after considering the § 3553(a) factors,
concludes that the defendant’s sentence should stay the same and denies the § 3582(c)(2) motion
on the merits.

                                                 17