US v. Courtney Ross, No. 08-7723 (4th Cir. 2009)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-7723 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. COURTNEY ROSS, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of Virginia, at Richmond. Henry E. Hudson, District Judge. (3:02-cr-00347-HEH-1) Submitted: March 26, 2009 Decided: Before NIEMEYER and SHEDD, Circuit Judges, and Circuit Judge. April 22, 2009 HAMILTON, Senior Vacated and remanded by unpublished per curiam opinion. Courtney Ross, Appellant Pro Se. Michael Calvin Moore, Michael Cornell Wallace, Assistant United States Attorneys, Richmond, Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Courtney Ross appeals from the district court s order denying his motion for reduction U.S.C. § 3582(c) (2006). inadvertently, entered of sentence pursuant to 18 Because the district court, we assume its order prior to the date on which Ross s reply to the Government s response was due, we vacate the district court s order and remand for further proceedings. On July 1, 2008, the district court directed the Government and the Probation Office to respond to Ross s motion by providing information about: (1) Ross s currently-projected date of release; (2) any educational or vocational training that he has received in prison; (3) any treatment for substance abuse or physical or mental health that he has received in prison; (4) his conduct after sentencing, including his compliance with the rules of the institution in which he has been incarcerated; and (5) any relevant public safety considerations. The district court directed Ross to reply to the Government s response within thirty days of the date it was filed in the event that the Government opposed his motion. The eligible for Government s a response sentence acknowledged reduction under that U.S. Ross is Sentencing Guidelines Manual ( USSG ) § 2D1.1 (2007) (Amendment 706); USSG § 1B1.10(c) (Mar. 3, 2008). However, the Government opposed Ross s of motion on the basis 2 his criminal record, which includes numerous instances of violent conduct, regardless of any mitigating evidence that might be presented regarding his behavior and progress while incarcerated. its response district on court August denied 1, 2008. Ross s On The Government filed August motion, 13, finding 2008, that the while Amendment 706 made him eligible for a sentence reduction, the court in its discretion would not grant him that relief because his long and violent criminal history, including attempted robbery, abduction, malicious wounding, and use of a firearm in the commission of a felony, presents a threat to public safety. The court s order did not indicate that it was knowingly ruling on Ross s motion prior to the date on which his reply to the Government s response was due. Although we express no opinion regarding the district court s evaluation of the merits of Ross s motion, the court should provide Ross the opportunity accorded him to file a reply that was set out in its July 1, 2008 order directing a response and a reply. and remand We accordingly vacate the district court s order for further proceedings. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. VACATED AND REMANDED 3
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