US v. Shawn Alston, No. 12-7720 (4th Cir. 2013)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-7720 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. SHAWN ANDRE ALSTON, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. James C. Dever, III, Chief District Judge. (5:06-cr-00200-D-1) Submitted: February 11, 2013 Decided: February 28, 2013 Before NIEMEYER, MOTZ, and KING, Circuit Judges. Vacated and remanded by unpublished per curiam opinion. Shawn Andre Alston, Appellant Pro Se. Edward D. Gray, Jane J. Jackson, Assistant United States Attorneys, Raleigh, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Shawn Andre Alston appeals the district court s denial of a sentence reduction under 18 U.S.C. § 3582(c)(2) (2006), pursuant to Manual. The district court denied the motion because Alston had not been Amendment convicted of 750 a to the crack U.S. cocaine Sentencing offense. Guidelines Alston was convicted of unlawful possession of a firearm by a convicted felon; however, at sentencing the district court found that he possessed the firearm in connection with another offense drug trafficking and applied the cross reference in U.S. Sentencing Guidelines Manual ( USSG ) § 2X1.1 and § 2D1.1. § 2K2.1(c)(1)(A) (2006), to USSG Alston s offense level was thus determined by the quantity of drugs he possessed when he was arrested, as well as currency he possessed that was converted to its crack equivalent. A district court may reduce a defendant s prison term if his Guidelines range has subsequently been lowered by the Sentencing Commission applicable policy U.S.C. and the statements § 3582(c)(2). We reduction issued review a by is the district consistent with Commission. 18 court s decision under § 3582(c)(2) for abuse of discretion. United States v. Stewart, 595 F.3d 197, 200 (4th Cir. 2010). A district court abuses its discretion if it fails adequately to take into account judicially recognized factors constraining its exercise, 2 or if it bases its exercise factual or legal premise. of discretion on an erroneous DIRECTV, Inc. v. Rawlins, 523 F.3d 318, 323 (4th Cir. 2008) (internal quotation marks omitted). When Guidelines, he was Alston originally was sentenced responsible for under 3176 the 2006 kilograms of marijuana equivalent, which gave him a base offense level of 34. Pursuant to Amendment 750, the 157.55 grams of crack that Alston was held responsible for converts to 562 kilograms, of marijuana equivalent. Added to the marijuana equivalents for the other drugs Alston was held responsible for, the revised drug amount is 593 kilograms of marijuana equivalent, which yields a base offense level of 28, see USSG § 2D1.1(c)(6), under the amended Guidelines that were in effect when the district court denied the § 3582(c)(2) motion. With a two-level increase for possession of a firearm under § 2D1.1(b)(1), and a three-level reduction for acceptance Alston s total revised criminal history of responsibility offense category IV, under level 27. making becomes his revised § 3E1.1, He is in Guidelines range 100-125 months, further narrowed to 100-120 months under USSG § 5G1.1(c)(1). Therefore, because Alston may now receive a sentence of less than 120 months, his Guidelines range has been lowered by Amendment 750. The district court denied the § 3582(c)(2) motion on the ground that Alston was not convicted of a crack offense, 3 thus impliedly where reference because that Amendment determined the base § 2D1.1. crack The court s to finding neither § 3582(c)(2) nor 750 offense is not level conclusion § 1B1.10 applicable via was exclude a cross erroneous Guidelines calculations that result from application of a cross reference. To determine whether a Guidelines amendment has the effect of lowering the defendant s applicable Guidelines range, the district court should follow the direction in § 1B1.10(b)(1) to substitute the amendment for the corresponding Guidelines provision that was applied at the defendant s sentencing, and leave all other Guidelines calculations as they were originally. United States v. Stewart, 595 F.3d 197, 200-01 (4th Cir. 2010); United States v. Lindsey, 556 F.3d 238, 245 (4th Cir. 2009); United States v. Hood, 556 F.3d 226, 232 (4th Cir. 2009). Because substitution of the amended Guidelines lowered Alston s Guidelines range, we conclude that the district court abused its discretion when it denied Alston s § 3582(c)(2) motion on the ground that it was not a crack offense affected by Amendment 750. We therefore vacate the court s order and remand for further proceedings. We dispense with oral argument because the facts and legal contentions are adequately presented in the 4 materials before the court and argument would not aid the decisional process. VACATED AND REMANDED 5