UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 19

- 7306

UNITED STATES OF AMERICA,

Plaintiff

- Appellee,

v.
MARIO REGINALD ROGERS,

Defendant

- Appellant.

Appeal from the United States District Court for the Middle District of North Carolina, at Greensboro. William L. Osteen, Jr., District Judge. (1:06

- cr

- 00120

- WO

- 1)

Submitted: July 2 7
, 2020 Decided: August 6, 2020

Before KING and AGEE, Circuit Judges, and SHEDD, Senior Circuit Judge.

Vacated and remanded by unpublished per curiam opinion.

Mario Reginald Rogers, Appellant Pro Se. Angela Hewlett Miller, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Greensboro, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.2 PER CURIAM:
Mario Reginald Rogers appeals the district court’s order granting his motion for
resentencing under § 404 of the First Step Act (“FSA”) of 2018, Pub. L. No. 115

- 391,

§ 404, 132 Stat. 5194 , 5222. We review the court’s ruling on a sentence reduction motion
for abuse of discretion and the scope of the court’s l egal authority de novo. See United

States v. Chambers , 956 F.3d 667, 671 (4th Cir. 2020); United States v. Mann , 709 F.3d
301, 304 (4th Cir. 2013). We conclude that the court procedurally erred in relying on an
incorrect statutory sentence and Sentencing G uidelines range. Accordingly, we vacate the
court’s order and remand for further proceedings.
In 2006, Rogers pleaded guilty pursuant to a written plea agreement to conspiracy
to distribute 50 grams or more of crack cocaine, in violation of 21 U.S.C.

§§ 84 1(b)(1)(A), 846 (Count 1), and being a felon in possession of a firearm, in

violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2) (Count 5). Rogers agreed that he was
responsible for at least 50 grams but less than 150 grams of crack cocaine and that he
faced a statutory minimum sentence of 20 years in prison and a maximum of life in
prison due to a prior felony drug conviction. Pursuant to 21 U.S.C. § 851(a)(1), the

Government notified Rogers that it intended to rely on a 1998 North Carolina conviction

f

or possession with intent to sell cocaine in order to increase Rogers’s statutory penalties.
Rogers received a sentence of 8 to 10 months in prison for that conviction. Because
Rogers was deemed a Sentencing Guidelines career offender, based on five prior felony
drug convictions, and his maximum statutory sentence was life, his adjusted offense level3 was 37. See U.S

. Sentencing Guidelines Manual § 4B1.1(b) (2005). Three levels were

deducted for acceptance of responsibility for a total offense level of 34. Because Rogers
was placed in criminal history category VI, his Guidelines range was 262 to 327 months
in prison and 10 years of supervised release. Rogers was sentenced to 262 months in
prison

. In March 2019, Rogers moved for a sentence reduction purs uant to the FSA. He
asserted that his mandatory minimum statutory sentence was reduced to 5 years in prison
and that his adjusted Guidelines range was 188 to 235 months in prison , based on a total
offense level of 31 and criminal history category VI. The P robation Office submitted a
memorandum indicating that Rogers’s revised statutory sentence was 10 years to life in
prison and 8 years of supervised release, but Rogers’s Guidelines range was unchanged.
The district court granted Rogers’s motion and imposed a reduced sentence of 228

months in prison and 8 years of supervised release. The court took note of Rogers’s
positive postconviction conduct in imposing a below

- Guidelines sentence, but noted that a
sentence of 188 months did not fully reflect the seriousness of Rogers’s convictions or

criminal history.

In Chambers
, this Court held that the district court must “recalculate the Guidelines
range” and incorporate the rule announced in United States v. Simmons , 649 F.3d 237 (4th

Cir. 2011) (en banc). See Chambers , 956 F.3d at 672

- 73 (“It would pervert Congress’s

intent to maintain a career

- offender designation that is as wrong today as it was in

2005.”). Under Simmons
, the 1998 North Carolina conviction that was utilized to4 enhance Rogers’s statutory sentence no longer qualifies as a proper predicate offense

because Rogers’s sentence was less than one year. See Simmons , 649 F.3d at 243
(concluding that defendant’s prior conviction may be a felo ny offense only if defendant
was eligible for sentence in excess of one year). Without the prior conviction, Rogers’s
statutory sentence is 5 to 40 years in prison . With a 40

- year maximum statutory sentence,
Rogers’s career offender offense level is 34 ins tead of 37. USSG § 4B1.1(b)(2). After
deducting 3 levels for acceptance of responsibility, Rogers’s total offense level is 31 and
his Guidelines range is 188 to 235 months in prison

. See USSG Ch. 5, Part A (Sentencing

Table).

Before imposing a new sentence in response to a motion under the FSA, the district
court is obliged to start with a properly calculated Guidelines range. See Chambers , 956

F.3d at 672

- 75 (instructing the district court to recalculate the Guidelines range). The
court may then consider the appropriate sentencing factors under 18 U.S.C. § 3553(a) and
Rogers’s post

- sentencing conduct

. Accordingly, we vacate the district co urt’s order and remand for further

proceedings. ∗ We grant Rogers’s motion for leave to file an amended brief. We dispense

with oral argument because the facts and legal contentions are adequately presented in the
materials before this court and argument wo uld not aid the decisional process.

VACATED AND REMANDED

∗ The district court did not have the benefit of this Court’s opinion in Chambers when it resentenced Rogers. We express no opinion with respect to the sentence Rogers should receive after the court considers the revised Guidelines range.