BLD-076 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________

No. 19-1921 ___________

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 grant the Government’s motion to 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. At the resentencing hearing,

the District Court applied United States Sentencing Guidelines (U.S.S.G.) Amendment

1 Even assuming that Dunston did not file his notice of appeal within 14 days of the District Court’s order as required by Fed. R. App. P. 4(b), as he claims he did by submitting an earlier version of his notice of appeal to prison authorities for mailing, Rule 4(b) is not jurisdictional. See Gov’t of the V.I. v. Martinez,

(3d Cir. 2010). We decline to dismiss the appeal sua sponte (assuming that we have the authority to do so) because the delay was short and the Government has not objected. See

at 329 n.6. 2 742, which became effective on Nov. 1, 2010, and eliminated “recency points” – points

added to a criminal history score where the offense of conviction was committed within

two years of release from imprisonment on a prior conviction. See U.S.S.G. Manual

Supp. to App. C., Amend. 742 (2010). The District Court determined that Amendment

742 reduced Dunston’s total criminal history points from 17 to 16, but that it did not

affect his criminal history category, and, therefore, his advisory guidelines range

remained the same. 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 June 11, 2012.

In March 2019, Dunston filed a motion to reduce his sentence pursuant to

(c)(2) based on U.S.S.G. Amendments 709 and 742. 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”). Like Amendment 742, Amendment 709 was in effect at the time

Dunston was resentenced in 2012; it became effective on November 1, 2007 and restated

the rules for determining when multiple crimes are counted as one for criminal history 3 purposes. Moreover, the District Court noted that it applied both amended guidelines at

resentencing and determined that neither afforded him relief. We note that, to the extent

that Dunston argues 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.

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

2 The Government’s motion to be excused from filing a brief is granted. 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