UNPUBLISHED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Vacated and remanded by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.
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
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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).
*
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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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
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