IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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 prisoner # 14519-035, appeals the district

court’s denial of a sentence reduction pursuant to 18 U.S.C. § 3582(c)(2), the Fair

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 conducting a new evaluation of the 18 U.S.C.

§ 3553(a) sentencing factors. He maintains that the district court’s reliance on

United States Court of Appeals

Fifth Circuit

F I L E D

May 15, 2013

Lyle W. Cayce

Clerk

* 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.

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No. 12-30820

its evaluation of the § 3553(a) factors at the time of sentencing constituted

reversible error. 

The Government argues that the district court did not abuse its discretion

by not making a new evaluation of the § 3553(a) factors because Jackson did not

present new arguments to the district court that he did not present at

sentencing. Alternatively, it maintains that any error was harmless because

Jackson did not present evidence or argument that would have changed the

district court’s evaluation of the § 3553(a) factors. 

Jackson asserts that the argument he presented, that failing to reduce his

sentence would result in his receiving a higher sentence because he provided

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 filed the day after the district court’s

final ruling constitutes new information affecting the evaluation of the § 3553(a)

factors. 

We review a district court’s decision “whether to reduce a sentence

pursuant to . . . § 3582(c)(2) for abuse of discretion, . . . its interpretation of the

Guidelines de novo, and its findings of fact for clear error.” United States v.

Henderson, 636 F.3d 713, 717 (5th Cir. 2011) (internal quotation marks and

citation omitted). When a court in applying its discretion fails to consider the

factors as required by law, it . . . abuses its discretion.” United States v. Larry,

632 F.3d 933, 936 (5th Cir. 2011) (internal quotation marks and citation

omitted). 

The district court implicitly ruled that Jackson was eligible for a sentence

reduction under § 3582(c)(2), but it determined that a reduction should not be

granted. In denying Jackson a sentence reduction, it stated that Jackson

“previously received adjustment under a Government motion filed pursuant to

18 U.S.C. § 3553(e) at which time the Court had determined a total sentence

pursuant to 18 U.S.C. § 3553(a) factors. Accordingly, the Court will not reduce

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No. 12-30820

the Defendant’s sentence further.” This language shows that the district 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 arguments that directly related to the

§ 3553(a) factors prior to the ruling of the district court, he did make an

argument that failing to reduce his sentence would negate the credit he received

for providing substantial assistance. Given that Jackson raised a new argument,

that the district court did not conduct a contemporaneous evaluation of the

§ 3553(a) factors, and that the district court did not give any indication as to the

conclusion it would have made if it had made a contemporaneous evaluation of

the § 3553(a) factors, the Government has not met its burden of showing

harmless error by providing “sufficient evidence to 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 district court is vacated and this 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 should review Jackson’s

guidelines sentence range because the record shows that the revised guidelines

sentence range calculations presented to the district court included an

unwarranted three-level base offense level reduction under U.S.S.G.

§ 2D1.1(a)(5) in addition to the two-level base offense level reduction provided

by Amendment 750.

VACATED AND REMANDED.

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