ALD-270                                                       NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                      No. 12-2107
                                      ___________

                           UNITED STATES OF AMERICA

                                           v.

                          BRAULIO ANTONIO BATISTA,
                                                Appellant
                      ____________________________________

                    On Appeal from the United States District Court
                              for the District of New Jersey
                          (D.C. Civil No. 2-03-cr-00514-001)
                     District Judge: Honorable William J. Martini
                     ____________________________________

              Submitted for Possible Dismissal for Jurisdictional Defect or
     Possible Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
                                   August 30, 2012
               Before: SLOVITER, FISHER and WEIS, Circuit Judges
                          (Opinion filed: September 6, 2012)
                                      _________

                                       OPINION
                                       _________

PER CURIAM.

      Braulio Antonio Batista pleaded guilty to a charge of conspiracy to distribute 150

grams or more of cocaine base (“crack cocaine”) (he stipulated in his plea agreement that

462 grams of crack cocaine were involved in his offense, D. Ct. Docket Entry No. 60, p.

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7, ¶ 3). The District Court, assessing a offense level of 34 for the amount of crack

cocaine involved plus a two-level enhancement for obstruction of justice for attempting

to avoid trial by feigning mental illness, sentenced Batista to 188 months in prison. We

affirmed the judgment of sentence. United States v. Batista, 

 (3d Cir. 2007).

       Subsequently, Batista filed a motion for a reduction of sentence under 18 U.S.C.

§ 3582(c)(2) in light of the retroactively applied Amendment 706 to the Sentencing

Guidelines (which lowered the base offense levels for crack cocaine offenses under

§ 2D1.1(c) of the Sentencing Guidelines by two levels). The District Court granted the

motion and reduced Batista’s sentence, amending his offense level from 36 to 34 and

reducing his sentence to 151 months in prison.

       In February 2011, Batista returned to the District Court with a pro se motion for

another reduction of sentence under § 3582(c)(2). He cited the Fair Sentencing Act of

2010 (“FSA”), which altered the statutory penalties for crack cocaine offenses, and a

then-pending amendment to the Sentencing Guidelines proposed in response to the FSA.

He asked that the District Court consider his request for a reduction of sentence on the

passage of the proposed amendment. Ultimately, Amendment 750, which applies

retroactively, see United States v. Curet, 

, 309 (1st Cir. 2012), took effect on

November 1, 2011, and lowered the base offense levels for crack cocaine quantities listed

in U.S.S.G. § 2D1.1(c) to conform to the FSA. 1


1
  Initially, in response to the FSA, the Sentencing Commission promulgated a temporary
amendment that revised the crack cocaine quantity levels in U.S.S.G. § 2D1.1.
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       The District Court denied Batista’s motion on March 13, 2012. Batista filed a

notice of appeal on April 9, 2012, see Houston v. Lock, 

, 270-71 (1988).

We have jurisdiction over his appeal pursuant to 28 U.S.C. § 1291. 2 Our review of the

District Court decision to deny Batista’s motion for a sentence reduction under

§ 3582(c)(2) is for abuse of discretion. United States v. Mateo, 

, 154 (3d

Cir. 2009). On review, we will affirm the District Court’s decision because no

substantial issue is raised on appeal. See L.A.R. 27.4; I.O.P. 10.6.

       Under § 3582(c), a court may reduce a term of imprisonment where a defendant

was sentenced “based on a sentencing range that has subsequently been lowered by the

Sentencing Commission[.]” 18 U.S.C. § 3582(c)(2); see also Mateo, 560 F.3d at 154.

Accordingly, if Amendment 750 has the effect of lowering a defendant’s guideline range,

a court may reduce the term of imprisonment pursuant to § 3582(c). See U.S.S.G.

§ 1B1.10(a), (c). However, Amendment 750 did not change Batista’s offense level, so

his sentencing range did not change. As noted above, Batista stipulated in his plea

agreement that 462 grams of crack cocaine were involved in his offense. Under

§ 2D1.1(c), as amended, a crime involving at least 280 grams but less than 840 grams of



Amendment 750 re-promulgated as permanent that temporary amendment. See Dorsey
v. United States, -- U.S. --, 

, 2329 (2012).
2
  Although Batista filed his notice of appeal more than 14 days after the District Court
entered its order denying the § 3582(c)(2) motion, see Fed. R. App. P. 4(b), we may
entertain his appeal because the Government has informed us that it does not wish to
enforce the time limitation. See Virgin Islands v. Martinez, 

, 328-29 (3d
Cir. 2010).
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crack cocaine has a base offense level of 32. U.S.S.G. § 2D1.1(c)(4). Batista’s total

offense level, with the two-level enhancement discussed above, remains at 34, and the

guideline range remains the same as when the District Court reduced his sentence after

his first motion under § 3582(c), see U.S.S.G. Sentencing Table, Ch. 5, Pt. A.

       Batista’s argues that he is nonetheless entitled to a reduction in his sentence

because the stipulated amount of crack cocaine did not reflect the true amount of the

controlled substance. According to him, the true amount was lower because the 462

gram mixture was only 52% pure (the crack cocaine had been adulterated with baking

soda). However, his argument is without merit. Under the Sentencing Guidelines,

“[u]nless otherwise specified, the weight of a controlled substance set forth in the table

refers to the entire weight of any mixture or substance containing a detectable amount of

the controlled substance.” U.S.S.G. § 2D1.1(c)(4), Note A. Crack cocaine is not among

those controlled substances otherwise specified. See U.S.S.G. § 2D1.1(c)(4), Note B.

Accordingly, his sentence must be based on the entire amount of the mixture containing

crack cocaine.

       For these reasons, there was no basis on which to reduce Batista’s sentence.

Accordingly, the District Court did not err in denying Batista’s motion, and we will

affirm the District Court’s decision.




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