### I N THE UNI TED STATES COURT OF APPEALS FOR THE FI F TH CI RCUI T

No. 12-30820 Summary Calendar

UNITED STATES OF AMERICA, Plaintiff-Appellee

v. DWIGHT D. JACKSON, also known as D-Boy, also known as Big Head, Defendant-Appellant

Appeal from the United States District Court for the Western District of Louisiana USDC No. 5:09-CR-279-6

Before STEWART, Chief Judge, and OWEN and GRAVES, Circuit Judges. PER CURIAM: * Dwight D. Jackson, federal p riso n e r # 14519-035, appeals the district court’s denial o f a sentence reduction pursuant to 18 U.S.C. § 3 582(c)(2), the F air Sentencing Act, and Amendment 750 to the Sentencing Guidelines. Jackson argues that the district court abused its discretion by denying him a § 3582(c)(2) sentence reduction without c onducting a new evaluation of t he 18 U.S.C. § 3553(a) sentencing factors. He maintains t hat the district court’s reliance on U n i t e d S t a te s C o u rt o f A p p e al s

F i f t h C i rc u i t 

### F I L E D May15, 2013 Ly l e W . Cay ce Clerk

* Purs uant to 5 T H C I R

. R

. 47. 5, the court has d eterm ined that this op inion should not be p ublis hed and is not p reced ent excep t und er the lim ited circum s tances s et forth in 5 T H C I R

. R. 47. 5. 4. Case: 12-30820 Document: 00512242664 Page: 1 Date Filed: 05/15/2013No. 12-30820

its evaluation o f the § 3553(a) factors at the time of sentencing constituted reversible error. The Government argues that the district court did n ot abuse its discretion by n ot m aking a new evaluation of the § 3553(a) factors because Jackson did not present new arguments to the district court t h a t h e did not present at

s e n t e ncing. Alternatively, it maintains that any error was harmless because Jackson did not pr e s e n t evidence or a rgument that would have changed the district court’s evaluation of the § 3553(a) factors. Jackson asserts that the argument he p resented, t hat failing to reduce his sentence would r e s u lt in h i s receiving a higher sentence because he p rovided substantial assistance, was an argument falling under § 3553(a)(6), which provides that unwarranted sentence disparities should be avoided. He contends that the mitigation information that he fil e d the day after the district court’s final ruling constitutes new information affecting the evaluation of the § 3553(a) factors. We review a district c ourt’s decision “whet h e r t o reduce a s entence pursuant to

. . . § 3582(c)(2) for abuse of discretion,

. . . i t s interpretation of the Guidelines de novo , and its f indings of fact for cl e a r e rror.” United States v. Henderson , 636 F.3d 713, 717 (5th C i r . 2011) (internal quo t a t i o n marks and citation omitted). When a court in applying its discretion f a i l s to consider the factors a s required b y law, it

. . . abuses its discretion.” United S tates v. Larry , 632 F.3d 933, 936 (5th C ir. 2011) (internal q u o t a tion marks and citation omitted). The district court implicitly ruled that Jackson was eligible for a s entence reduction under § 3582(c)(2), but it d etermined t h at a reduction should not be granted. In deny i ng Jackson a sentence reduction, it stated that Jackson “previously received adjustment under a G overnment motion filed pursuant to 18 U.S.C. § 355 3 ( e ) at which time the Court had determined a total s entence pursuant to 18 U.S.C. § 3553(a) f actors. Accordingly, the Court will not reduce
2 Case: 12-30820 Document: 00512242664 Page: 2 Date Filed: 05/15/2013No. 12-30820

the Defendant’s s entence f urther.” This l anguage shows that the di strict court abused its discretion by failing to conduct the required contemporaneous review of the § 3553(a) factors. See Henderson , 636 F.3d at 718-19. While Jackson did not present any a rguments that directly related to the § 3 553(a) factors prior to the ruling of t h e district c ourt, h e d i d make an argument that failing to reduce his sentence would negate t he credit he received for p rovi di n g s ub s t a nti al assistance. Given t hat Jackson raised a new a rgument, that the district court did not conduct a c o n t e m poraneous evaluation of the § 3553(a) factors, and that the district c o urt did not give any indication as to the conclusion it w ould have made if it had made a contemporaneous e valuation of the § 3553(a) factors, the Government has no t m e t i t s burden of showing harmless error by p roviding “sufficient evidence t o convince the appellate court that the district court would have imposed the same sentence, absent the error.” United States v . Ibarra-Luna , 628 F.3d 712, 718 (5th Cir. 2010) (internal quotation marks and citation omitted). Accordingly, the ruling of the di strict court is v a c a t e d a nd t his case is remanded to the district court for a reevaluation of Jackson’s request for relief under § 3582( c ) ( 2 ). On remand, the district court s hould review Jackson’s guidelines sentence range because the record s hows that the revised guidelines sentence ran g e c a l c ulations presented to the district court included an unwarrant e d three-level base o ffense level reduction under U.S.S.G. § 2D1.1(a)(5) in addition t o t h e t w o-level base offense level reduction p rovided by Amendment 750. VACATED AND REMANDED.

3 Case: 12-30820 Document: 00512242664 Page: 3 Date Filed: 05/15/2013