BLD-008                                                           NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                      No. 12-3374
                                      ___________

                           UNITED STATES OF AMERICA

                                            v.

                             ROYCE E. BROWN, SR.,
                                             Appellant
                      ____________________________________

                    On Appeal from the United States District Court
                              for the District of Delaware
                       (D.C. Criminal No. 1-95-cr-00069-001)
                     District Judge: Honorable Sue L. Robinson
                     ____________________________________

                    Submitted for Summary Action Pursuant to
                      Third Circuit LAR 27.4 and I.O.P. 10.6
                                October 12, 2012
       Before: SCIRICA, HARDIMAN and GREENAWAY, JR., Circuit Judges.

                                (Filed: October 19, 2012)
                                        _________

                               OPINION OF THE COURT
                                     _________

PER CURIAM.

       Royce E. Brown, Sr., a federal prisoner proceeding pro se, appeals from the

District Court’s denial of his motion requesting a reduction in sentence pursuant to 18

U.S.C. § 3582(c)(2). We will summarily affirm.
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                                            I.

      The facts being well-known to the parties, we will set forth only those pertinent to

this opinion. In 1996, Brown was convicted of possession with intent to distribute crack

cocaine and unlawful possession of a firearm by a felon. As a career offender pursuant to

U.S.S.G. § 4B1.1, he was sentenced to 360 months imprisonment. We affirmed his

conviction and sentence. (Dkt. No. 147.)

      After unsuccessfully pursuing habeas relief, (Dkt. Nos. 186, 193), Brown filed a

motion to reduce his sentence pursuant to 18 U.S.C. § 3582(c)(2), relying upon

Sentencing Guideline Amendment 706, (Dkt. No. 196). The District Court denied that

motion, determining that Amendment 706 did not apply to Brown because he was

sentenced as a career offender. (Dkt. No. 200.) We affirmed. United States v. Brown,

369 F. App’x 388, 391 (3d Cir. 2010).

      Brown then filed a second § 3582(c)(2) motion, arguing that his sentence should

be reduced on the basis of, among other things1, Amendment 750. The District Court

denied Brown’s motion to the extent that the arguments raised therein were previously

made, and rejected, on appeal. (Dkt. No. 215, pp. 5-6.) As for his reliance on

Amendment 750, the District Court determined that it did not apply to defendants




1
  The District Court properly recognized that the other Amendments upon which Brown
relied were in effect before he was sentenced. (Dkt. No. 215, p. 6 n.8.)
                                            2
sentenced as career offenders and therefore could not be used to reduce his sentence. (Id.

pp. 6-7.) Brown timely appealed.

                                            II.

       We have jurisdiction pursuant to 28 U.S.C. § 1291. We review a district court’s

interpretation of the Sentencing Guidelines de novo. United States v. Mateo, 

, 154 (3d Cir. 2009). We review a district court’s ultimate decision to deny a motion

pursuant to § 3582 for abuse of discretion. Id. We may summarily affirm the decision of

the District Court if no substantial question is presented on appeal. 3d Cir. LAR 27.4 and

I.O.P. 10.6.

       To be eligible for a reduction in sentence, a defendant must have “been sentenced

to a term of imprisonment based on a sentencing range that has subsequently been

lowered by the Sentencing Commission.” 18 U.S.C. § 3582(c)(2). The sentence must

first be “based on” a Guidelines range, and, second, a Guidelines amendment must have

the “effect of lowering” that Guidelines range. United States v. Thompson, 

, 290 (3d Cir. 2012) (citing Freeman v. United States, 

, 2700 (2011)

(Sotomayor, J., concurring)).

       We first turn to the issue of whether Amendment 750 could serve to lower

Brown’s sentence. To conform to the Fair Sentencing Act of 2010, Amendment 750

lowered the base offense levels for crack cocaine quantities listed in U.S.S.G. § 2D1.1.

However, as a career offender, Brown’s offense level and Guidelines range were based

on the application of U.S.S.G. § 4B1.1. Because Brown was not sentenced based on a
                                             3
range that was subsequently lowered by the Commission, he was not eligible for a

reduction under § 3582(c)(2). See Mateo, 560 F.3d at 154-55. The District Court did not

abuse its discretion in denying Brown’s motion.

        Brown also argued that he should never have been classified as a career offender.

We previously found that argument to be without merit, Brown, 369 F. App’x at 390, and

see no occasion to revisit it here. Apart from Brown’s reliance on Amendment 750, all of

the other arguments advanced in his second § 3582 motion were previously adjudicated

on appeal. Id. at 390-91. The District Court properly declined to revisit those issues as

well. Finally, Brown’s letter opposing summary affirmance does not advance any basis

not previously considered by us or the District Court.2

                                            III.

        There being no substantial question presented on appeal, we will summarily affirm

the District Court’s order and deny Brown’s motion for appointment of counsel. 3d Cir.

LAR 27.4 and I.O.P. 10.6. Brown’s motion to expedite his motion for appointment of

counsel and the Government’s motion in support of summary dismissal are denied as

moot.




2
  Brown claims that his arguments are supported by Amendments 741 and 759. His
reliance on those Amendments is misplaced. Amendment 741 reorganized § 1B1.1 to
clarify a three-step approach to sentencing, while Amendment 759 merely implemented
the retroactivity of Amendment 750.
                                             4