IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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 Carey (“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-Guidelines 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 crack cocaine, and

distribution of more than five grams of crack cocaine. Carey argues that the

district court abused its discretion in denying his § 3582(c)(2) motion. He

contends that his sentence was lowered by Amendment 750 to the Sentencing

United States Court of Appeals

Fifth Circuit

F I L E D

November 6, 2012

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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Guidelines and that he is entitled to a modification of his sentence. We conclude

that the district court erred in calculating the sentencing range applicable to

Carey under the amended Guidelines, and its order denying 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-sentence report

(“PSR”), Carey was accountable for at least 1.5 kilograms of crack cocaine and

his base-offense level was thirty-eight. The PSR also included a two-level

enhancement for Carey’s possession of a dangerous weapon and another twolevel enhancement for obstructing justice, resulting in a total-offense level of

forty-two. Carey’s total-offense level, combined with his Category I criminalhistory score, yielded an advisory Guidelines range of 360 months’ to life

imprisonment.

At sentencing, the district court sustained some of Carey’s objections to the

PSR. While paragraph twenty-two of the PSR 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 court concluded that

the basis for this statement was not reliable; therefore, it sustained Carey’s

objection to paragraph twenty-two. The district court also sustained Carey’s

objection to paragraph twenty-three of the PSR, which stated that Carey

supplied approximately fifty to 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 of calculating the correct Guidelines offense level. 

Under the Guidelines at that time, if Carey’s offenses involved at least 1.5

kilograms of crack cocaine, his base-offense level was thirty-eight, and the AUSA

explained how—even after the district court’s rulings—the testimony showed

that Carey’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

two transactions. And so I find that the other calculations by the

probation officer 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 applicable 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 and a codefendant. This court affirmed Carey’s conviction and sentence on direct appeal.

In 2008, Carey moved 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 on the factors in 18 U.S.C. § 3553(a). In

October 2011, Carey filed another motion under § 3582(c)(2), this time relying

on Amendment 750 to the Sentencing Guidelines. The district court again

denied the motion. Although the district court determined that the amended

Guidelines range was lower than 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 that the district court abused its discretion in denying his

§ 3582(c)(2) motion because Amendment 750 retroactively lowered the applicable

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 disparity. We 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.

Section 3582(c)(2) affords a district court discretion to modify a defendant’s

sentence 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 840, 860 (5th Cir. 1998)). 

“We review de novo the district court’s legal determinations regarding the

application of the sentencing guidelines.” United States v. Mueller, 168 F.3d 186,

189 (5th Cir. 1999) (citation omitted).

Section 3582(c)(2) establishes a two-step 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). Ifthe defendant originally received 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 requires that the district court “consider any applicable § 3553(a)

factors 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 3553 instructs the court to “impose a sentence sufficient, but not 1

greater than necessary” and to consider, in determining a sentence: (1) the nature and

circumstances of the offense and the history and characteristics of the defendant; (2)

the need for the sentence imposed to reflect the seriousness of the offense, promote

respect for the law, and punish the offense, to deter criminal conduct, protect the

public, and provide the defendant with training or medical treatment; (3) the kinds of

sentences available; (4) the sentencing range established in the Guidelines; (5) any

pertinent policy statement; (6) the need to avoid unwarranted sentence disparities; and

(7) the need to provide restitution to victims of the offense. 18 U.S.C. § 3553(a).

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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 range 235 to 293 months; (2) if he was held

accountable for at least 2.8 kilograms but less than 8.4 kilograms, his totaloffense level would be forty and his sentence range 292 to 365 months; and (3)

if he was held accountable for more than 8.4 kilograms, his total-offense level

would be forty-two 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 240-month sentence was “less than the minimum of the

amended guideline range.” But, based on the record, we cannot agree with this

The Fair Sentencing Act (“FSA”) changed the drug quantities necessary to 2

trigger mandatory minimum sentences for powder and crack cocaine offenses. FSA,

Pub. L. No. 111-220, § 2(a), 124 Stat. 2372 (Aug. 3, 2010). The Sentencing Commission

amended the drug quantity table in § 2D1.1 to conform with the new statutory

sentences set out in the FSA. See United States Sentencing Comm’n, Guidelines

Manual, Supp. to Appendix C–Vol. III, Amendment 750, at 391–98 (Nov. 1, 2011). 

Amendment 759 made Amendment 750’s changes to the drug quantity table in

§ 2D1.1(c) retroactive. See id. at 416–21 (amending § 1B1.10(c) to make parts A and

C of Amendment 750 retroactively applicable).

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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 he was 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 record

does not show that the district court held Carey accountable 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, results in 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 district court’s only finding in support of denying

Carey’s § 3582 motion—namely, that Carey’s 240-month sentence is less than

the lowest end of 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 at 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).

Carey argues that if we reach this point in our analysis, we should hold

that he is entitled to a modification of his sentence. We disagree. The district

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court’s error 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 circumstances of this case. See Dillon, 130

S.Ct. at 2692; Mueller, 168 F.3d at 189–90.

III.

For the foregoing reasons, 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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