BLD-376                                                        NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                       No. 16-1176
                                       ___________

                            UNITED STATES OF AMERICA

                                             v.

                      GARY RHINES, a/k/a Derrick Upshaw, a/k/a
                         Gary R. Allen, a/k/a Robert Camby

                                       Gary Rhines,
                                                Appellant
                       ____________________________________

                     On Appeal from the United States District Court
                         for the Middle District of Pennsylvania
                           (M.D. Pa. No. 4-01-cr-00310-001)
                      District Judge: Honorable John E. Jones, III
                      ____________________________________

                       Submitted for Possible Summary Action
                  Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
                                   August 11, 2016
              Before: KRAUSE, SCIRICA and FUENTES, Circuit Judges


                               (Filed: September 13, 2016)
                                        _________

                                        OPINION*
                                        _________

PER CURIAM


*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
       Gary Rhines, a federal prisoner proceeding pro se, appeals from an order of the

United States District Court for the Middle District of Pennsylvania denying his motion

under 18 U.S.C. § 3582(c)(2) for a reduction in sentence. Because the appeal presents no

substantial question, we will grant the Government’s motion to summarily affirm the

District Court’s order. See 3d Cir. L.A.R. 27.4; I.O.P. 10.6.

       In 2002, Rhines was convicted in federal court of possession with intent to

distribute 50 grams of cocaine base. Because he had two prior convictions for felony

drug offenses, he received a mandatory sentence of life in prison. We affirmed the

conviction and sentence, United States v. Rhines, 143 F. App’x 478 (3d Cir. 2005), and

the Supreme Court denied certiorari, Rhines v. United States, 546 U.S. 1210 (2006).

Rhines’ subsequent efforts to challenge his conviction have been unsuccessful.

       In November 2014, Rhines filed in the District Court a motion under § 3582(c)(2),

seeking to reduce his sentence based on Amendment 782 to the Sentencing Guidelines,

which reduced by two the offense levels assigned to most drug quantities under U.S.S.G.

§ 2D1.1(c). See U.S.S.G. § 2D1.1(c) & app. C. supp., amends. 782, 788 (2014). The

District Court denied the motion, and Rhines appealed.1 The Government has moved for

summary affirmance.


1
  We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. Where the denial
of relief under § 3582(c)(2) involves a legal question concerning eligibility, we review
the District Court’s decision de novo. See United States v. Sanchez, 562 F.3d 275, 277
(3d Cir. 2009). “By contrast, when the district court determines that a defendant is
eligible for relief but declines to reduce his sentence, our review is for an abuse of
discretion.” United States v. Weatherspoon, 696 F.3d 416, 420 (3d Cir. 2012) (citing
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       We conclude that the District Court properly denied Rhines’ motion for reduction

of sentence based on Amendment 782.2 Generally, a district court cannot “modify a term

of imprisonment once it has been imposed” unless a defendant is eligible for a reduction

of sentence pursuant to § 3582(c). Section 3582(c)(2) allows for a reduction if: (1) the

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

Sentencing Commission;” and (2) “a reduction is consistent with applicable policy

statements issued by the Sentencing Commission.” 18 U.S.C. § 3582(c)(2); United States

v. Flemming, 723 F.3d 407, 410 (3d Cir. 2013). A reduction is not authorized under

§ 3582(c)(2) if the change to the Sentencing Guidelines “does not have the effect of

lowering the defendant’s applicable guideline range because of the operation of another

guideline or statutory provision (e.g., a statutory mandatory minimum term of

imprisonment).” U.S.S.G. § 1B1.10(a)(2)(B) & cmt. n.1(A).

       As the Government explains, Amendment 782 does not have the effect of

lowering Rhines’ applicable guidelines range because he was not sentenced under the


Sanchez, 562 F.3d at 277 n.4).
2
  In the brief that Rhines filed in this Court, he argues that he is entitled to a sentence
reduction under Amendment 759. When the Sentencing Commission promulgated
Amendment 750, which “reduced the crack-related offense levels in § 2D1.1 of the
Guidelines,” United States v. Berberena, 694 F.3d 514, 517-18 (3d Cir. 2012), it also
promulgated Amendment 759, which made Amendment 750 retroactive. See United
States v. Ware, 694 F.3d 527, 531 (3d Cir. 2012). We will not consider arguments raised
for the first time on appeal. See Harris v. City of Philadelphia, 35 F.3d 840, 845 (3d Cir.
1994) (issues raised for the first time on appeal will not be considered). But in any event,
Rhines is not entitled to relief based on Amendment 750 and 759 because, as explained
below, his conviction resulted in a statutorily mandated life sentence.
                                                3
guidelines. Instead, it is clear from the sentencing transcript and our decision on direct

appeal that Rhines’ life sentence was mandated by statute. See 21 U.S.C. §§ 841(a)(1),

(b)(1)(A), and 851(a)(1). Therefore, the District Court lacked authority to reduce Rhines’

sentence under § 3582(c)(2). See United States v. Ortiz-Vega, 744 F.3d 869, 873 (3d Cir.

2014) (“[I]f a defendant is subjected to a mandatory minimum, he or she would not be

given a sentence ‘based on a sentencing range that has subsequently been lowered.’”).

       For the foregoing reasons, we grant the Government’s motion for summary

affirmance and will affirm the District Court order denying Rhines’ motion to reduce his

sentence.




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