### IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 16

- 30619 Summary Calendar

UNITED STATES OF AMERICA , Plaintiff

- Appellee

v.

MICHAEL DILLON, also known as Bubba Dillon, also known as Michael Dillion , Defendant

- Appellant

Appeal from the United States District Court for the Eastern District of Louisiana USDC No. 2:03

- CR

- 252

- 1

Before BARKSDALE, HAYNES, and HIGGINSON, Circuit Judges. PER CURIAM: * In 2005, Michael Dillon was sentenced to 300

- months ’ imprisonment following his guilty

- plea conviction for two cocaine

- related drug offenses. In 2014, he moved, pursuant to 18 U.S.C. § 3582(c)(2) , for a sentence reductio n bas ed on Amendment 782 to Sentencing Guideline § 2D1.1

. In denying the motion, t he district court ruled : “ H aving carefully considered all of the

* Pursuant to 5th Cir. R. 47.5 , the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 4 7.5.4. United States Court of Appeals Fifth Circuit 

### FILED February 21, 2017 Lyle W. Cayce Clerk Case: 16-30619 Document: 00513883206 Page: 1 Date Filed: 02/21/2017No. 16

- 30619

2 info rmation submitted, including the defendant’s [ p resentence i nvestigation

r eport ], the sentence imp osed was fair and reasonable

. ” Dillon contends the court abused its discretion in considering the evidence. The denial of a § 3582(c)(2) motion for a sentence reduction is reviewed for abuse of discretion. United States v. Henderson , 636 F.3d 713, 717 (5th Ci r. 2011). “A district court abuses its discretion if it bases its decision on an error of law or a clearly erroneous assessment of the evidence.” Id. (quoting United States v. Smith , 417 F.3d 483, 486

– 87 (5th Cir. 2005)). In short, Dillon was entitled t o adequate consideration of his motion. See United States v. Evans , 587 F.3d 667, 672

– 73 (5th Cir. 2009). W e will generally assume a court has complied with the two

- step inquiry applicable to § 3582(c)(2) motions by (1) determining defendant’s eligibilit y for a reduction , and (2) conside r ing the § 3553(a) factors. S ee Henderson , 636 F.3d at 717

– 18 ; United States v. Larry , 632 F.3d 933, 936

– 37 (5th Cir. 2011)

. T he record , however, u ndermines that assumption : the “Amendment 782 Eligibility Informa tion Sheet” prepared by the United States Probation Office , and presumably considered by the district court , pertains to an unrelated defendant , coincidentally with the same last name as appellant

. Accordingly, we are unable to rule out the possibility that th e court inadvertently consider ed clearly erroneous facts of no relation to Michael Dillon , or fail ed to consider whether a sentence reduction was “warranted in whole or in part under the particular circumstances” of his case. Henderson , 636 F.3d at 717. Neither side has noted this error. And, a lthough Dillon fail ed to brief this issue , “ [i] n exceptional circumstances, especially criminal cases, we can, in our discretion, take sua sponte notice of errors not presented in either the district court or the appellant’s initial brief” if “fairness and the public interest” Case: 16-30619 Document: 00513883206 Page: 2 Date Filed: 02/21/2017No. 16

- 30619

3 so dictate. United States v. Broussard , 669 F.3d 537, 552 & n.10 (5th Cir. 2012). “We exercise this discretion with the greatest prudence, recognizing that it is only the extraordinary cas e which will excuse an appellant’s failure to make an argument in his initial brief.” Id. at 552

– 53. T his is such an instance

. While we, of course, express no opinion regarding the merits of Dillon’s motion, f airness and the public interest d ictate we v acate the court’s order and remand for reevaluation on the basis of a clarified and complete record. S ee Broussard , 669 F.3d at 552

– 53 ; Henderson , 636 F.3d at 719

. VACATED and REMANDED. Case: 16-30619 Document: 00513883206 Page: 3 Date Filed: 02/21/2017