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 reduction 

based on Amendment 782 to Sentencing Guideline § 2D1.1. In denying the 

motion, the district court ruled: “Having 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. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

February 21, 2017

Lyle W. Cayce

Clerk

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No. 16-30619

2

information submitted, including the defendant’s [presentence investigation 

report], the sentence imposed 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 Cir. 

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 to adequate consideration of his motion. See United States v. Evans, 

587 F.3d 667, 672–73 (5th Cir. 2009). We will generally assume a court has 

complied with the two-step inquiry applicable to § 3582(c)(2) motions by (1)

determining defendant’s eligibility for a reduction, and (2) considering the 

§ 3553(a) factors. See Henderson, 636 F.3d at 717–18; United States v. Larry, 

632 F.3d 933, 936–37 (5th Cir. 2011).

The record, however, undermines that assumption: the “Amendment 

782 Eligibility Information 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 the court

inadvertently considered clearly erroneous facts of no relation to Michael 

Dillon, or failed 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, although Dillon failed 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” 

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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 case which will excuse an appellant’s failure 

to make an argument in his initial brief.” Id. at 552–53. This is such an

instance. While we, of course, express no opinion regarding the merits of 

Dillon’s motion, fairness and the public interest dictate we vacate the court’s 

order and remand for reevaluation on the basis of a clarified and complete 

record. See 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