### IN THE UNI TED STAT ES COURT OFAPPEALS FOR THE FIF TH CIRCU IT

No. 11-11234

UNITED STATES OF AMERICA, Plaintiff - Appellee,
v. LAWRENCE CAREY, also known as Winkey, Defendant - Appellant.

Appeal from the United States District Court for the Northern District of Texas USDC No. 4:06–CR–73–3

Before STEWART, Chief Judge, GARZA, and ELROD, Circuit Judges. PER CURIAM: * Lawrence Care y (“Carey”), federal prisoner # 35453-177, appeals the district court’s denial of his 18 U.S.C. § 3582(c)(2) motion seeking modification of his 240-month below- G uidelines sentence for conspiracy to possess and distribute more than five grams of cocaine base (“crack cocaine”), aiding and abetting the distribution of more than five grams of c r a c k cocaine, and distribution of more than f iv e gr a m s o f crack cocaine. Carey argues that the district court abused its discretion in denying his § 3582(c)(2) m o t i o n . He contends that his sentence was lowered by Ame n dment 750 to the Sentencing U n i te d S ta te s C o u rt o f A p p ea l s

F i ft h C i rc u i t 

### F I L E D Novembe r 6, 2 012 Lyle W . Cayce Clerk

Pursua nt to 5 T H C IR

. R. 47.5 , the cour t hasd ete rm inedt hat this op inion s houldnot * be publ ish ed and is not pr ece dent excep t unde r the lim ite d cir cum st ance s se t forth in 5 T H C IR

. R. 47.5 .4. Case: 11-11234 Document: 00512045206 Page: 1 Date Filed: 11/06/2012No. 11-11234

Guidelines and that he is entitled to a modification of his sentence. We conclude that the district court erred in calculating the sentencing range appl i c ab l e to Carey under the amended Guidelines, and its order d e nyi n g Carey’s motion based on the erroneous calculation was an abuse of discretion. Accordingly, we VACATE the district court’s order and REMAND this case to the district court for further proceedings. I. Carey was convicted in 2006. According to the pre-s e n t e n ce report (“PSR”), Carey was accountable for at leas t 1.5 kilograms of crack cocaine and his base-offense level was thirty-eight. The PSR al s o i n c l uded a two-level enhancement for Carey’s possession of a d a n gerous weapon and another twolevel enhancement for obstructing justice, resulting in a total- o f f e n s e level of forty-two. Carey’s total-offense level, combined with his Category I criminalhistory score, yielded an advisory Guidelines range of 3 6 0 m o nths’ to life imprisonment. At sentencing, the district court sustained some of C arey’ s obj e ctions to the PSR. While paragraph twenty-two o f t h e P S R stated that Carey and another defendant cooked powder cocaine into crack cocaine, producing approximately 4.37 to 8.75 kilograms over thirty-five weeks, the district c ourt concluded that the basis for this statement was not reliable; therefore, it sus t a i n e d Carey’s objection to par a graph twenty-two. The district court also sustained Carey’s objection to paragraph twenty-three of the PSR, which stated t h at Carey supplied approximately fif ty t o 300 kilograms of crack cocaine to another defendant; again, the court concluded that the basis for this statement was not reliable.

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Following these rulings, the district court discussed with the Assistant United States Attorney (“AUSA”) what quantities of cocaine it should take into account for the purpose o f calculating the correct Guidelines offense level. Under the Guidelines at that time, if Carey’s offenses involved a t l e a s t 1.5 kilograms of crack cocaine, his base-offen s e l evel was thirty-eight, and the AUSA explained how—even after the district court’s rulings—the testimony showed th a t C a r e y’ s offenses involved 1.62 kilograms of crack cocaine. Based on the AUSA’s explanation and the testimony at the sentencing hearing, the district court found that: the quantity involved is at least 1.5 kilograms or more or cocaine base and that, therefore, the base offense level is 38. It’s based on different information from what we had in the presentence report. It’s based on the information that was developed during the course of this proceeding, and, of course, we have his factual resume as to t w o t r a n s a ctions. And so I find that the other calculations by the probation o f

f i cer are correct, which leads to a total offense level of 42. The district court then adopted the PSR as modified by its rulings and statements from the bench. The district court ultimately deviated from the applic able Guidelines range and imposed concurrent sentences of 240 months’ imprisonment. The district court acknowledged that, based on a total-offense level of forty-two, the advisory range was 360 months to life, but it concluded that the lower sentence

was necessary to avoid disparity in sentencing between Carey a n d a codefendant. This court affirmed Carey’s conviction and sentence on direct appeal. In 2008, Carey m o ved for a reduction in his sentence under § 3582(c)(2) based on Amendment 706 to the Sentencing Guidelines. The district court denied the motion because, even though the amended Guidelines range was

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lower than Carey’s original range, Carey’s 240-month sentence was still below the amended Guidelines range based o n t h e f a ctors in 18 U.S.C. § 3553(a). In October 2011, Carey filed another motion under § 35 8 2 (c)(2), this time relying

on Amendment 750 to the Sent e n c i n g G u idelines. The district court again denied the motion. Although the district court determined t h a t the amended Guidelines range was low e r t h an the range applicable when Carey was sentenced, it concluded that Carey’s 240-month sentence was still less than the minimum of the amended Guidelines range. Carey timely filed an appeal of the district court’s order and was granted permission to proceed in forma pauperis in this court. II. Carey argues tha t t h e district court abused its discretion in denying his § 3582(c)(2) motion because Amendment 7 5 0 retro actively low ere d th e ap p lic able Guidelines range below his sentence. Carey also asserts that an unidentified codefendant has been granted a sentence reduction, so his sentence should likewise be reduced to avoid unwarranted sentencing disparit y . W e reject Carey’s sentencing-disparity argument because it is entirely speculative and not supported by the record. But we agree with Carey that the district court abused its discretion in denying his § 3582(c)(2) motion. S ectio n 3 5 8 2 (c)(2) affords a district court discretion to modify a def e n d ant’ s sente nce in certain cases when the Sentencing Commission has subsequently lowered the Guidelines range. United States v. Doublin , 572 F.3d 235, 237 (5th Cir. 2009). We review for abuse of discretion a district court’s decision whether to reduce a sentence under § 3582(c)(2). United States v. Evans , 587 F.3d 667, 672 ( 5th Cir. 2009) (citation omitted). “A district court ‘abuses its discretion if

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it bases its decision on an erroneous view of the law or on a clearly erroneous assessment of the evidence.’” United States v. Smith , 417 F.3d 483, 486–87 (5th Cir. 2005) (quoting United States v. Mann , 161 F.3d 8 4 0 , 8 6 0 ( 5 t h Cir. 1998)). “We review de novo the district court’s legal de t e r m i n a tions regarding the

application of the sentencing guidelines.” United States v. Mueller , 168 F

. 3 d 1 8 6 , 189 (5th Cir. 1999) (citation omitted). Section 3582(c)(2) establishes a two-st e p inquiry. See 18 U.S.C. § 3582(c)(2). Step one requires a district court to consider whether a defendant is eligible for a sentence reduction under § 1B1.10 of the Sentencing Guidelines. Dillon v. United States , 130 S.Ct. 2683, 2691 (2010). Section 1B1.10 instructs

a court to determine the amended Guidelines range applicable to the defendant and then impose a sentence equal to or above the low end of the amended range unless the defendant’s original sentence was below the Guidelines range. Id. at § 1B1.10(b)(1), (2)(A)-(B). If th e def e n dant ori gin ally re c eived a below-Guidelines sentence, a district court may grant a comparable reduction under the amended Guidelines range. Id. at § 1B1.10(b)(2)(B); see Dillon , 130 S.Ct. at 2691–92. Step two r e qu ir es that the district court “consider any applicable § 3553(a) f a c t ors and determine whether, in its discretion, the reduction authorized by

1 [§ 1B1.10] is warranted in whole or in part under the particular circumstances of the case.” Dillon , 130 S.Ct. at 2692 (footnote added).

Section 355 3 instructs the co u rt to “impose a sentence suff icient, but not 1 greater than necess ary” and to consider , in determining a sentence: (1) the nature and circums tances of the offens e and the hi story and characteristics of the def endant; (2) the need for the sentence imposed to reflect the se ri ousness of the offens e, promote resp ect for the la w, and punish the offens e, to deter criminal conduct, pr o t e ct t h e publi c, and provide the defend ant with traini ng or medical treatment; (3) the kinds of sentences ava il abl e; (4) the sentencing range establ ished in the Guideli n e s; (5) any pertinent policy statement; (6) the need to avoi d unwarranted sentence disparities; and (7) the need to provide restitution to victi ms of the offens e. 18U. S.C. § 3 553 (a). 5 Case: 11-11234 Document: 00512045206 Page: 5 Date Filed: 11/06/2012No. 11-11234

When the district court originally sentenced Carey, the base-offense level for possessing at least 1.5 kilograms or more of crack cocaine was thirty-eight. But Amendment 750 changed the drug quantity table in § 2D1.1(c) of the Sentencing Guidelines. Now, the base-offense level for possessing at least 840 2
grams but less than 2.8 kilograms of crack cocaine is thirty-four, while the baseoffense level is thirty-six for possessing between 2.8 and 8.4 kilograms of crack cocaine and thirty-eight if the defendant possessed more than 8.4 kilograms. Id. § 2D1.1(c)(1)–(2). Thus, under the amended Guidelines and taking into account Carey’s two sentence enhancements and criminal-history score, Carey would be subject to the following possible sentence ranges: (1) If he was held accountable for at least 840 grams but less than 2.8 kilograms, his total-offense level would be thirty-eight and his sentencing r a n g e 235 to 293 months; (2) if he was held accountable for at least 2.8 kilograms but less than 8.4 kilograms, his to t aloffense level would be forty and his sentence range 292 to 365 months; and (3) if he was held acc o u n t ab l e for more than 8.4 kilograms, his total-offense level would be f

o rt y - t wo and his sentencing range 360 months to life. See U.S.S.G. Sentencing Table, Ch. 5, Pt. A. The district court denied Carey’s § 3582(c)(2) motion because it concluded that Carey’s original 2 40-month sentence was “less than the minimum of the amended guideline range.” But, based on the record, we cannot agree with this

The Fai r Sentencing Ac t (“ F SA” ) changed the dru g quanti ties necess ary to 2 trigge r m a n da t o ry mini mum sentences for powder a nd crack cocai ne offens es. FSA, Pub. L. No. 111 -220 , § 2(a), 124 Stat. 237 2 (Aug. 3, 201 0). The Sentencing Commission am e n de d the dru g quanti ty tab le in § 2D1 .1 to confor m with the new statutory sentences set out in the FSA. See Uni ted St a t e s Sentencing Comm’n, Guidel ines Man ual, Supp. to App endix C–Vol

. III , Amendment 750 , at 391 –98 (Nov. 1, 201 1). Amendment 759 made Amendment 750 ’s ch a n g e s to the dru g quanti ty tab le in § 2D1 .1(c) retroactiv e. See id. at 4 16– 21 (amending § 1 B1.10 (c) to ma ke parts A and C of Amendment 750 retroactivelyapplicab le). 6 Case: 11-11234 Document: 00512045206 Page: 6 Date Filed: 11/06/2012No. 11-11234

conclusion. At the sentencing hearing, the district court sustained Carey’s objections to statements in the PSR concerning the amounts of crack cocaine for which h e w a s responsible. Then, after considering testimony and the AUSA’s position that the testimony showed Carey was accountable for 1.62 kilograms of crack cocaine, the district court found that the quantity involved was at least 1.5 kilograms. The court explicitly stated that it made this finding “based on different information from what we had in the [PSR].” Therefore, the r e c o r d does not show that the district court hel d C a r e y a ccountable for 2.8 kilograms

or more of crack cocaine, which is the threshold amount for the purposes of our inquiry. Under the amended Guidelines, the base-offense level for possessing at least 850 grams but less than 2.8 kilograms is thirty-four, and that base-offense level combined with Carey’s two sentence enhancements and criminal-history
score, re s u l t s i n a total-offense level of thirty-eight and a sentencing range of 235-293 months, the bottom of which is below his 240-month sentence. We conclude that the distri c t c o u rt ’ s only finding in support of denying Carey’s § 3582 motion—namely, t h at Carey’s 240-month sentence is less than the lowest end o f the amended Guidelines range—is not correct. Because the district court relied on this erroneous finding to deny Carey’s motion, that ruling

was an abuse of discretion. See Smith , 417 F.3d a t 486–87. Furthermore, the district court’s error is not harmless because nothing in the record suggests that the district court would not have reduced the sentence but for the error in the calculation of the amended Guidelines range. See United States v. Andrews , 390 F.3d 840, 846 & n.9 (5th Cir. 2004) (explaining that to show harmless error, the government must show that the defendant’s sentence would have been the same absent the district court’s error). C ar e y a r gues that if we reach this point in our analysis, we should hol d that he is entitled to a modification of his sentence. We disagree. The district

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court’s erro r compels us to vacate its order, but on remand the district court must consider any applicable § 3553(a) factors and whether, in its discretion, a reduction is warranted under the c i r c umstances of this case. See Dillon , 130 S.Ct. at 2692; Mueller , 168 F.3d at 189–90. III. For the foregoing r e a sons, we VACATE the district court’s order and REMAND this case to the district court for further proceedings consistent with this opinion.

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