UNPUBLISHED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Vacated and remanded by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.
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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 Amendment 750 to the U.S. Sentencing Guidelines 

Manual. The district court denied the motion because Alston had 

not been convicted of a crack cocaine offense. 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”) § 2K2.1(c)(1)(A) (2006), to USSG 

§ 2X1.1 and § 2D1.1. 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 and the reduction is consistent with 

applicable policy statements issued by the Commission. 18 

U.S.C. § 3582(c)(2). We review a district 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, 
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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). 

When he was originally sentenced under the 2006 

Guidelines, Alston was responsible for 3176 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 of responsibility under § 3E1.1, 

Alston’s total revised offense level becomes 27. He is in 

criminal history category IV, making his revised 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, 
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thus impliedly finding that Amendment 750 is not applicable 

where crack determined the base offense level via a cross 

reference to § 2D1.1. The court’s conclusion was erroneous 

because neither § 3582(c)(2) nor § 1B1.10 exclude 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
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materials before the court and argument would not aid the 

decisional process.

VACATED AND REMANDED