UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 10-6532

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

STEVEN D. CARR,

Defendant - Appellant.

Appeal from the United States District Court for the Western 

District of North Carolina, at Statesville. Richard L. 

Voorhees, District Judge. (5:98-cr-00246-RLV-2)

Submitted: August 23, 2010 Decided: September 20, 2010

Before NIEMEYER and SHEDD, Circuit Judges, and HAMILTON, Senior 

Circuit Judge

Vacated and remanded by unpublished per curiam opinion.

Steven D. Carr, Appellant Pro Se. Douglas Scott Broyles, 

Assistant United States Attorney, Charlotte, North Carolina, Amy 

Elizabeth Ray, Assistant United States Attorney, Asheville, 

North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:

Steven D. Carr appeals the district court’s order 

denying his 18 U.S.C. § 3582(c) (2006) motion for a sentence 

reduction. For the reasons set forth below, we vacate the 

district court’s order and remand for further proceedings.

In 1999, Carr was convicted, following a jury trial, 

of conspiracy to possess with intent to distribute cocaine base 

(Count 1), two counts of possession with intent to distribute 

cocaine base and aiding and abetting (Counts 4 and 5), and 

possession with intent to distribute cocaine base (Count 6). In 

the presentence report (“PSR”), the probation officer grouped 

the four counts pursuant to U.S. Sentencing Guidelines Manual

(“USSG”) § 3D1.2(d) (1998). Finding that Carr was responsible 

for more than 1.5 kilograms of cocaine base, the probation 

officer assigned a total offense level of thirty-eight pursuant 

to USSG § 2D1.1 (1998). Carr was designated a career offender 

pursuant to USSG § 4B1.1, and assigned a criminal history 

category of VI. The probation officer therefore calculated a 

sentencing range of 360 months to life. The district court

sentenced Carr to a total of 360 months of imprisonment on each 

of the four drug counts, to run concurrently to each other and 

consecutively to his state sentences.

Because the amount of cocaine base attributable to 

Carr had not been alleged in the indictment or submitted to the 
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jury, this court concluded on appeal that Carr’s sentence 

violated the rule set forth in Apprendi v. New Jersey, 530 U.S. 

466 (2000). We therefore affirmed Carr’s conviction, vacated 

his sentence, and remanded for resentencing in light of Apprendi

and the panel decision in United States v. Angle, 230 F.3d 113 

(4th Cir. 2000), vacated, 254 F.3d 514 (4th Cir. 2001) (en 

banc). United States v. Carr, No. 00-4001, 2000 WL 1616978 (4th 

Cir. Oct. 30, 2000) (unpublished).

On remand, Carr objected to the determination of the 

drug quantity attributable to him as relevant conduct. The 

district court found by a preponderance of the evidence that 

Carr was responsible for more than 1.5 kilograms of cocaine base 

and resentenced him to the minimum of the guideline range, or

360 months. Specifically, the district court sentenced Carr to 

240 months on Count 1; sixty months on each of Counts 4 and 5 to 

run concurrently to each other and consecutively to the sentence 

imposed in Count 1; and sixty months on Count 6 to run 

consecutively to the sentence imposed in Count 1. See USSG 

§ 5G1.2(d); Angle, 254 F.3d at 518 (“In the case of multiple 

counts of conviction, the sentencing guidelines instruct that if 

the total punishment mandated by the guidelines exceeds the 

statutory maximum of the most serious offense of conviction, the 

district court must impose consecutive terms of imprisonment to 

the extent necessary to achieve the total punishment.”). We 
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then affirmed Carr’s sentence. United States v. Carr, 34 F. 

App’x 921 (4th Cir. 2002) (No. 01-4740).

Carr now seeks a reduction of sentence pursuant to 18 

U.S.C. § 3582(c) (2006), contending that he is entitled to a

reduction under Amendment 706 of the Guidelines, which lowered 

the offense levels for drug offenses involving crack cocaine. 

On August 17, 2009, the probation officer prepared a supplement 

to the PSR, in which she concluded that Carr was eligible for a 

sentence reduction. The probation officer found that, under 

Amendment 706, Carr faced a revised guideline range of 324 to 

405 months, based on a revised offense level of thirty-six and a 

criminal history category of VI. She further recommended that 

Carr’s sentence be reduced to 324 months on each count, to run 

concurrently.

On February 19, 2010, presumably in light of the fact 

that the August 17, 2009 supplement had not taken the Apprendi

remand into account, the probation officer prepared a revised 

supplement to the PSR. In this version, she maintained that 

both Carr’s initial and revised guideline ranges were capped at 

240 months pursuant to USSG § 5G1.1 and the twenty-year 

statutory maximum set forth in 21 U.S.C. § 841(b)(1)(C) (2006). 

The probation officer concluded that no reduction was warranted 

as Carr’s guideline range had not been lowered by Amendment 706.
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That same day, the district court entered an order 

denying Carr’s motion for sentence reduction. The judge 

calculated the relevant guideline ranges as follows:

Previous Offense Level: 38

Criminal History Category: VI

Previous Guideline Range: 240 to 240 months

Amended Offense Level: 37

Criminal History Category: VI

Amended Guideline Range: 240 to 240 months

The court concluded that no reduction was warranted “as the 

amended sentence in this case was limited to a statutory maximum 

of 20 years (240 months) by Apprendi v. New Jersey, which then 

became the applicable guideline range, per USSG § 5G1.1(a). The 

revised guideline range is similarly limited and the guideline 

range remains unchanged.” 

Under § 3582(c)(2), the district court may modify the 

term of imprisonment “of a defendant who has been sentenced 

. . . based on a sentencing range that has subsequently been 

lowered,” if the amendment is listed in the Guidelines as 

retroactively applicable. 18 U.S.C. § 3582(c)(2); see also USSG 

§ 1B1.10, p.s. (2009). Amendment 706 applies retroactively. 

See USSG § 1B1.10(c), p.s. We review the district court’s 

denial of a motion under § 3582(c)(2) for abuse of discretion. 

See United States v. Munn, 595 F.3d 183, 186 (4th Cir. 2010). A 

court abuses its discretion if it fails or refuses to exercise 

discretion, or if it relies on erroneous legal or factual 
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premises. James v. Jacobson, 6 F.3d 233, 239 (4th Cir. 1993); 

see Randall v. Prince George’s County, 302 F.3d 188, 211 (4th 

Cir. 2002) (stating that “[a] court . . . abuses its discretion 

if it makes a mistake of law”).

We conclude that the district court abused its 

discretion in denying Carr’s motion for sentence reduction. The 

district court, relying on the revised supplement to the PSR, 

applied USSG § 5G1.1(a) and concluded that Carr’s initial 

guideline range was 240 to 240 months. The court apparently 

overlooked the fact that this case involved multiple counts of 

conviction. Section 5G1.1(a) applies to “Sentencing on a Single 

Count of Conviction,” and states that “[w]here the statutorily 

authorized maximum sentence is less than the minimum of the 

applicable guideline range, the statutorily authorized maximum 

sentence shall be the guideline sentence.” Because Carr was 

sentenced on multiple counts of conviction, his initial 

guideline range was instead governed by USSG § 5G1.2. Based on 

an offense level of thirty-eight and a criminal history category 

of VI, before the application of Amendment 706, Carr faced a 

guideline range of 360 months to life. Because the statutory 

maximum on each individual drug count was 240 months, however, 

the district court properly applied the “stacking rule” set 

forth in USSG § 5G1.2(d) and imposed consecutive sentences in 

order to obtain a prison term within the prescribed guideline 
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range. See United States v. Stokes, 261 F.3d 496, 500-01 (4th 

Cir. 2001); Angle, 254 F.3d at 518-19. Rather than being 

constrained to a statutory maximum sentence of 240 months, the 

district court, pursuant to the stacking analysis set forth in 

§ 5G1.2, imposed a guideline sentence of 360 months.

Applying Amendment 706, a defendant responsible for at 

least 1.5 kilograms (but less than 4.5 kilograms) of cocaine 

base faces a base offense level of thirty-six. See USSG 

§§ 1B1.10(b)(1), p.s., 2D1.1(c)(2) (2009). The district court 

erroneously concluded, however, again based on the revised 

supplement to the PSR, that Carr faced a base offense level of 

thirty-seven under the career offender provision set forth in 

USSG § 4B1.1(b) (“[I]f the offense level for a career offender 

from the table in this subsection is greater than the offense 

level otherwise applicable, the offense level from the table in 

this subsection shall apply.”). In the revised supplement, the 

probation officer apparently assumed that Carr faced a statutory 

maximum term of life, which would have mandated an offense level 

of thirty-seven pursuant to USSG § 4B1.1(b)(A). Carr, however, 

faced a statutory maximum term of twenty years, which yields an 

offense level of thirty-two pursuant to USSG § 4B1.1(b)(C). 

Pursuant to § 4B1.1(b), the higher offense level set forth in 

§ 2D1.1(c)(2) (2009) applies.
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With an amended offense level of thirty-six and a 

criminal history category of VI, the amended guideline range is 

324 to 405 months of imprisonment. Because Carr’s sentencing 

range was clearly lowered by Amendment 706, we conclude that he 

is eligible for a sentence reduction pursuant to § 3582(c)(2). 

We therefore vacate the district court’s order and remand for 

further proceedings, expressing no opinion as to whether the 

district court should exercise its discretion to grant the 

motion. 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