UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 12-7016

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

v.

OMAR JERMEL DIXON, a/k/a O Dixon, a/k/a Omar Dixon-El, 

a/k/a Omar Jermel Dixon-El, a/k/a Omar Germal Dixon, a/k/a 

Omar Jermal Dixon, a/k/a Omar Jermal Dixon El,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern 

District of Virginia, at Richmond. James R. Spencer, District 

Judge. (3:02-cr-00209-JRS-1)

Submitted: November 20, 2012 Decided: November 29, 2012

Before MOTZ and KEENAN, Circuit Judges, and HAMILTON, Senior 

Circuit Judge.

Vacated and remanded by unpublished per curiam opinion.

Omar Jermel Dixon, Appellant Pro Se. Brian R. Hood, OFFICE OF 

THE UNITED STATES ATTORNEY, Richmond, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
2

PER CURIAM:

Omar Jermel Dixon appeals from the denial of his 18 

U.S.C. § 3582 (2006) motion for reduction of sentence pursuant 

to Amendment 750 to the Sentencing Guidelines. The district 

court ruled that Dixon’s Guidelines range was not changed by the 

Amendment, and thus, he was ineligible for a reduction. On 

appeal, Dixon asserts that (1) he was not served with the 

Government’s response to his motion and, thus, could not file a 

reply and (2) the district court misstated his original 

Guidelines range and miscalculated his amended Guidelines range. 

The evidence produced by Dixon on appeal is 

unchallenged by the Government and supports both his claims. 

Specifically, Dixon submitted transcripts, correspondence, and 

court filings showing that he was not given notice of the 

Government’s filing and that the district court erred by 

including a firearm enhancement in the Guidelines calculations 

when the court at Dixon’s original sentencing sustained Dixon’s 

objection to the firearm enhancement. While the evidence of 

miscalculation is presented by Dixon for the first time on 

appeal, we have considered it because Dixon was not afforded the 

opportunity to respond to either the probation officer’s 

calculations or the Government’s arguments. 

We review the denial of a § 3582(c)(2) motion for 

abuse of discretion. United States v. Munn, 595 F.3d 183, 186 
3

(4th Cir. 2010). A district court abuses its discretion if it 

relies on an erroneous factual or legal premise. DIRECTV, 

Inc. v. Rawlins, 523 F.3d 318, 323 (4th Cir. 2008). Although 

the district court’s decision to grant or deny a § 3582(c)(2) 

motion is discretionary, a mistake of fact is necessarily an 

abuse of discretion. Id. at 323. 

Based on the undisputed filings on appeal, we conclude 

that the denial of Dixon’s § 3582(c)(2) motion on the ground 

that he did not qualify for a sentencing reduction likely 

constituted a mistake of fact or law. However, we decline to 

rule definitively on this issue because the Government conceded 

that Dixon was not given an opportunity to be heard regarding 

the Government’s response. As such, we vacate the district 

court’s judgment and remand for the court to give Dixon an 

opportunity to respond and for the court to consider the merits 

of Dixon’s claim anew. We dispense with oral argument because 

the facts and legal contentions are adequately presented in the 

materials before this court and argument would not aid the

decisional process.

VACATED AND REMANDED