UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 08-6811

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

KENNETH EARL LOGAN, JR.,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern

District of Virginia, at Norfolk. Rebecca Beach Smith, District

Judge. (2:99-cr-00141-RBS-2)

Submitted: September 23, 2008 Decided: October 8, 2008

Before MICHAEL and GREGORY, Circuit Judges, and HAMILTON, Senior

Circuit Judge.

Vacated and remanded by unpublished per curiam opinion.

Kenneth Earl Logan, Jr., Appellant Pro Se. Laura Marie Everhart,

Assistant United States Attorney, Norfolk, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:

Kenneth Earl Logan, Jr., appeals from the district

court’s order granting his 18 U.S.C. § 3582(c)(2) (2000) motion for

reduction of sentence based on recent amendments to the sentencing

guidelines. Because it appears from the record that the district

court erroneously calculated Logan’s new advisory Guidelines range

under the amendments, we vacate and remand for further

consideration. 

Logan was convicted of: conspiracy to possess with intent

to distribute fifty grams or more of cocaine base and five

kilograms or more of powder cocaine (Count Ten); possession with

intent to distribute 168.71 grams of cocaine powder (Count

Thirteen); and possession with intent to distribute 292.6 grams of

crack cocaine (Count Fourteen). As originally calculated, Logan’s

base offense level was 36. He received a reduction of two levels

based on his minor role in the offense and an increase of two

levels for obstruction of justice. His total offense level was 36,

his criminal history category was IV, and his Guidelines range was

262-327 months in prison. He was sentenced to 262 months on Counts

Ten and Fourteen and 240 months on Count Thirteen. The sentences

ran concurrently. 

Logan filed the subject § 3582(c)(2) motion, contending

that he was entitled to a reduction in his sentence under

Amendments 706 and 711 of the Guidelines, which lowered the base
*

In concluding that Logan was subject to a “restricted

guideline range,” the court apparently was referring to USSG

§ 5G1.1(c)(2) (sentence may be imposed at any point within

Guidelines range provided it “is not less than any statutorily

required minimum sentence”). In this regard, the court observed

that Logan’s “restricted guideline range is 240-262 months because

of a statutory mandatory minimum of 240 months on count 13.

Accordingly, the court finds that a reduction of defendant’s

original imprisonment term to a term of two hundred forty (240)

months is appropriate and reasonable.”

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offense levels for most offenses involving crack cocaine. See U.S.

Sentencing Guidelines Manual § 2D1.1(c) (2007 & Supp. 2008); USSG

App. C, Amend. 706, 711. The district court granted the motion and

reduced Logan’s sentence to 240 months. In arriving at this

sentence, the court first identified Logan’s new base offense level

as 34. With the same adjustments for his role in the offense and

obstruction of justice, his total offense level became 34, and his

advisory Guidelines range as initially calculated became 210-262

months. The court apparently believed that Logan was subject to a

statutory minimum term of twenty years because of his conviction on

Count Thirteen and concluded that his new Guidelines range was 240-

262 months in prison.*

On the record before us, it appears that the district

court erroneously determined that Logan was statutorily subject to

a minimum term of 240 months on Count Thirteen. Possession with

intent to distribute 168.71 grams of powder cocaine subjected Logan

to no mandatory minimum sentence, but instead to a maximum penalty

of twenty years in prison, see 21 U.S.C. § 841(b)(1)(C) (2000).
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His advisory Guidelines range under the relevant amendments would

be 210-262 months. 

Because the district court erroneously calculated Logan’s

advisory Guidelines range under the relevant amendments, we vacate

the sentence and remand for further consideration in light of this

opinion. We deny the motion for appointment of counsel and

dispense with oral argument because the facts and legal contentions

are adequately presented in the materials before the court and

argument would not aid the decisional process.

VACATED AND REMANDED