BLD-077 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________

No. 19-2882 ___________

UNITED STATES OF AMERICA

v.

JOSEPH A. DUNSTON, Appellant ____________________________________

On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. Criminal Action No. 2-08-cr-00289-001) District Judge: Honorable Paul S. Diamond ____________________________________

Submitted for Possible Summary Action Pursuant to Third Circuit L.A.R. 27.4 and I.O.P. 10.6 December 30, 2019

Before: AMBRO, GREENAWAY, JR. and BIBAS, Circuit Judges

(Opinion filed: January 30, 2020) _________

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. Pro se appellant Joseph Dunston seeks review of the District Court’s order denying his

motion for reduction of sentence pursuant to

(c)(2). We have

jurisdiction pursuant to

, 1 and our review is plenary. See United States

v. Weatherspoon,

(3d Cir. 2012). Because the appeal fails to present a

substantial question, we will summarily affirm the District Court’s judgment. See 3d Cir.

LAR 27.4 & I.O.P. 10.6.

Dunston, a federal prisoner, pleaded guilty in 2009 in the United States District

Court for the Eastern District of Pennsylvania to conspiracy to commit armed bank

robbery, armed bank robbery, and carrying a firearm during and in relation to a crime of

violence. He was sentenced to 199 months’ imprisonment, including concurrent 115-

month terms on the conspiracy and armed robbery counts. On direct appeal, we vacated

the sentence on the conspiracy charge as exceeding the maximum under

.

See United States v. Dunston,

(3d Cir. 2011). On remand,

Dunston was sentenced again to 199 months’ imprisonment. On appeal, we granted the

Government’s motion to enforce the appellate waiver provision in the plea agreement and

summarily affirmed the District Court’s judgment. See C.A. No. 12-1492, order entered

1 It is not clear whether Dunston timely filed his notice of appeal. See Fed. R. App. P. 4(b); United States v. Grana,

(3d Cir. 1989). However, the time limit is not jurisdictional, the delay was short, and the Government has not objected. See Gov’t of the V.I. v. Martinez,

(3d Cir. 2010). 2 June 11, 2012. In May 2019, Dunston filed a motion to reduce his sentence pursuant to

(c)(2) based on U.S.S.G. Amendment 599. The District Court denied

the motion, and this appeal ensued.

The District Court properly concluded that Dunston was ineligible for a sentence

reduction. Section 3582(c)(2) authorizes a district court to modify or reduce a

defendant’s sentence if the sentence range has subsequently been lowered by the

Sentencing Commission pursuant to

(o). See Dillon v. United States,

(2018) (noting that § 3582 “applies only to a limited class of prisoners –

namely, those whose sentence was based on a sentencing range subsequently lowered by

the Commission”). As the District Court observed, however, Amendment 599 was in

effect for nearly 12 years when Dunston was resentenced in 2012; it became effective on

November 1, 2000, and clarified when a defendant’s sentence may be enhanced for

conduct other than the “underlying offense” when he has also been convicted of violating

(c). See U.S.S.G. Manual, Appx. C, Amendment 599 (modifying

§ 2K2.4 cmt. n.2). The District Court noted that it applied the amendment and did not

enhance his sentence for the underlying bank robbery offense based on his § 924(c)

conviction. In any event, to the extent that Dunston argued that the District Court erred

in applying the amendments at his resentencing, he cannot circumvent his appellate

waiver by seeking review of his sentence through a § 3582 motion.

3 Based on the foregoing, we will affirm the District Court’s order. 2

2 We note that this Court’s August 27, 2019 order in C.A. No. 19-2558, granting Dunston’s application pursuant to

, does not moot this appeal. Accordingly, we take no action on Appellant’s letters filed on November 4 and November 22, 2019.

4