DLD-239 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________

No. 19-1390 ___________

UNITED STATES OF AMERICA

v.

CARLOS CEGLEDI, Appellant ____________________________________

On Appeal from the United States District Court for the Middle District of Pennsylvania (D.C. Criminal Action No. 1-08-cr-00218-001) District Judge: Honorable Sylvia H. Rambo ____________________________________

Submitted for Possible Summary Action Pursuant to Third Circuit L.A.R. 27.4 and I.O.P. 10.6 July 18, 2019 Before: JORDAN, GREENAWAY, Jr., and NYGAARD, Circuit Judges

(Opinion filed: September 5, 2019)

__________

OPINION * __________ PER CURIAM

Carlos Cegledi appeals from the denial of his motion for a reduction in sentence

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. under

(c)(2). We will affirm.

I.

In 2009, Cegledi was convicted of federal drug offenses. His Sentencing

Guidelines range was 292 to 365 months of imprisonment, but the District Court

sentenced him only to 234 months. We affirmed. See United States v. Cegledi,

(3d Cir. 2011).

Cegledi later filed the § 3582(c)(2) motion for a reduction in sentence at issue

here. He relied on Amendment 782, which lowered the base offense level for certain

drug crimes. Application of Amendment 782 would have lowered Cegledi’s Guidelines

range to 235 to 293 months. The District Court appointed counsel pursuant to its

standing order regarding Amendment 782, but the District Court later permitted counsel

to withdraw. The District Court then denied Cegledi’s motion. Cegledi appeals. 1

II.

The District Court concluded that Cegledi is not eligible for a reduction in

sentence on the basis of Amendment 782. We agree. Amendment 782 applies

retroactively, and it lowers Cegledi’s Guidelines range. Under the applicable Guidelines

1 The District Court’s order granted Cegledi a certificate of appealability (“COA”). The grant of a COA appears to have been inadvertent because a COA is not required to appeal the denial of a motion under § 3583(c)(2). See

(c)(1)(B) (requiring a COA to appeal “the final order in a proceeding under § 2255”). In any event, we have jurisdiction under

. In light of the District Court’s grant of a COA, our Clerk notified Cegledi that the Court would consider appointment of counsel for this appeal. We conclude that appointment of counsel is not warranted for the reasons explained below.

2 policy statement, however, and except in circumstances not presented here, “the court

shall not reduce the defendant’s term of imprisonment under

(c)(2) and

this policy statement to a term that is less than the minimum of the amended guideline

range[.]” U.S.S.G. § 1B1.10(b)(2)(A). Thus, this provision “prohibits a reduction below

the low end of a prisoner’s new range, even if the prisoner originally received a below-

Guidelines sentence.” United States v. Berberena,

(3d Cir. 2012).

In this case, Amendment 782 lowers Cegledi’s Guidelines range to 235 to 293

months. The District Court, however, sentenced Cegledi to 234 months, which is less

than the minimum of Cegledi’s amended Guidelines range. Consequently, Cegledi is not

eligible for a reduction in his sentence under § 3582(c)(2).

We briefly address two other issues. First, Cegledi argued in response to his

counsel’s motion to withdraw below that the District Court granted a two-level variance

and that, with the same variance, his new sentencing range under Amendment 782 would

be 188 to 235 months. Cegledi did not provide any details about this alleged variance,

and we see no indication that the District Court granted one. See Cegledi,

(discussing the basis for Cegledi’s sentence and rejecting his argument that the

District Court should have granted him a variance). In any event, the fact remains that

Cegledi received a sentence that is lower than his sentencing range under Amendment

782.

Second, policy statement § 1B1.10(b)(2)(A) was amended as part of

Amendment 759 in 2011 after Cegledi committed his offenses. See Berberena,

. Before that amendment, District Courts had the discretion to reduce a sentence

3 under § 3582(c)(2) in Cegledi’s situation (though doing so “generally would not be

appropriate”). Id. at 518 & n.4. Now they no longer do. See id. at 518-19.

Cegledi has not argued that application of the 2011 version of the policy statement

constitutes an ex post facto violation, and it does not. Amendment 782 on which Cegledi

relies also was enacted after his offenses, so applying the 2011 version of §

1B1.10(b)(2)(A) does not deprive him of any sentencing relief for which he was eligible

at that time. See United States v. Thompson,

(3d Cir. 2016); see

also United States v. Alvaran-Velez,

(D.C. Cir. 2019) (citing

Thompson and joining “the unanimity of circuits” in holding that application of the 2011

version of § 1B1.10(b)(2)(A) is not an ex post facto violation). Amendment 782 also was

enacted after the 2011 amendment of § 1B1.10(b)(2)(A), so the 2011 version of §

1B1.10(b)(2)(A) “merely operates to deny [Cegledi] the benefit of a sentence reduction to

which [he has] never been entitled.” Thompson,

n.10.

III.

For these reasons, we decline to appoint counsel for Cegledi in this appeal, and we

will affirm the judgment of the District Court.

4