UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 12-7553

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

v.

DEJUAN WALKER,

Defendant - Appellant.

Appeal from the United States District Court for the Western 

District of North Carolina, at Charlotte. Frank D. Whitney, 

District Judge. (3:05-cr-00097-FDW-2)

Submitted: December 21, 2012 Decided: December 31, 2012

Before KEENAN, WYNN, and THACKER, Circuit Judges.

Vacated and remanded by unpublished per curiam opinion.

Dejuan Walker, Appellant Pro Se. Jennifer Lynn Dillon, Amy 

Elizabeth Ray, Assistant United States Attorneys, Craig Darren 

Randall, C. Nicks Williams, OFFICE OF THE UNITED STATES 

ATTORNEY, Charlotte, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Dejuan Walker appeals the district court’s order 

denying his 18 U.S.C. § 3582(c)(2) (2006) motion seeking 

reduction of his sentence pursuant to Amendment 750. This court 

reviews the denial of a § 3582(c)(2) motion for abuse of 

discretion. United States v. Munn, 595 F.3d 183, 186 (4th Cir. 

2010). “A district court abuses its discretion if it fails 

adequately to take into account judicially recognized factors 

constraining its exercise, or if it bases its exercise of 

discretion on an erroneous factual or legal premise.” DIRECTV, 

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

quotation marks omitted). 

Pursuant to § 3582(c)(2), the district court may 

modify the term of imprisonment “of a defendant who has been 

sentenced to a term of imprisonment based on a sentencing range 

that has subsequently been lowered by the Sentencing 

Commission,” if the Guidelines amendment is retroactively 

applicable, as is Amendment 750. 18 U.S.C. § 3582(c)(2); U.S. 

Sentencing Guidelines Manual § 1B1.10(c) (2012). As the 

district court correctly observed, Walker was subject to a 

statutorily-mandated minimum term of imprisonment, even though 

the Government’s USSG § 5K1.1 motion for a downward departure 

resulted in an ultimate sentence below the mandatory minimum. 

See 18 U.S.C. § 3553(e) (2006). However, it is unclear whether 
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the statutory minimum should have been twenty years, as noted in 

the court’s order. Walker’s plea agreement included a provision 

that if he complied with the requirements of the plea agreement, 

the Government would withdraw the § 851 Notice, reducing the 

statutory minimum to ten years. The only discussion of the 

potential withdrawal of the notice that is in the record on 

appeal was in the original Presentence Report (PSR), where it 

was noted that the Guidelines range would not change if the 

§ 851 information was removed. It appears from the district 

court’s decisions at resentencing in 2010 and on the 

§ 3582(c)(2) motion, which both specify that Walker was subject 

to a twenty-year mandatory minimum, that the probation office 

and the district court concluded that the § 851 Notice was still 

applicable. While the district court has the discretion to 

refuse to further reduce Walker’s sentence, the court’s decision 

may not be based on an error in law. See DIRECTV, Inc., 523 

F.3d at 323. Under the terms of the plea agreement, it appears 

that the § 851 Notice should have been withdrawn by the 

Government if Walker complied with the terms of the agreement. 

Nothing currently in the record indicates that he did not 

comply. However, the record on appeal is not complete. 

We therefore vacate the district court’s order and 

remand to the district court to determine whether, under the 

terms of the plea agreement, the § 851 Notice should have been 
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withdrawn by the Government. And, if it should have been 

removed, then the district court may consider the § 3582(c)(2) 

motion in light of the changes wrought by Dorsey v. United 

States, 132 S. Ct. 2321, 2335 (2012) (holding FSA is 

retroactively applicable to defendant who committed his offenses 

prior to August 3, 2010, but was sentenced after that date) and 

the FSA. We do not express an opinion on whether Walker’s 

sentence should ultimately be reduced.

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