UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-7723
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
COURTNEY ROSS,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Henry E. Hudson, District
Judge. (3:02-cr-00347-HEH-1)
Submitted: March 26, 2009 Decided: April 22, 2009
Before NIEMEYER and SHEDD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Vacated and remanded by unpublished per curiam opinion.
Courtney Ross, Appellant Pro Se. Michael Calvin Moore, Michael
Cornell Wallace, Assistant United States Attorneys, Richmond,
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Courtney Ross appeals from the district court’s order
denying his motion for reduction of sentence pursuant to 18
U.S.C. § 3582(c) (2006). Because the district court, we assume
inadvertently, entered its order prior to the date on which
Ross’s reply to the Government’s response was due, we vacate the
district court’s order and remand for further proceedings.
On July 1, 2008, the district court directed the
Government and the Probation Office to respond to Ross’s motion
by providing information about: (1) Ross’s currently-projected
date of release; (2) any educational or vocational training that
he has received in prison; (3) any treatment for substance abuse
or physical or mental health that he has received in prison;
(4) his conduct after sentencing, including his compliance with
the rules of the institution in which he has been incarcerated;
and (5) any relevant public safety considerations. The district
court directed Ross to reply to the Government’s response within
thirty days of the date it was filed in the event that the
Government opposed his motion.
The Government’s response acknowledged that Ross is
eligible for a sentence reduction under U.S. Sentencing
Guidelines Manual (“USSG”) § 2D1.1 (2007) (Amendment 706); USSG
§ 1B1.10(c) (Mar. 3, 2008). However, the Government opposed
Ross’s motion on the basis of his criminal record, which
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“includes numerous instances of violent conduct,” regardless of
any mitigating evidence that might be presented regarding his
behavior and progress while incarcerated. The Government filed
its response on August 1, 2008. On August 13, 2008, the
district court denied Ross’s motion, finding that while
Amendment 706 made him eligible for a sentence reduction, the
court in its discretion would not grant him that relief because
his long and violent criminal history, including attempted
robbery, abduction, malicious wounding, and use of a firearm in
the commission of a felony, presents a threat to public safety.
The court’s order did not indicate that it was knowingly ruling
on Ross’s motion prior to the date on which his reply to the
Government’s response was due.
Although we express no opinion regarding the district
court’s evaluation of the merits of Ross’s motion, the court
should provide Ross the opportunity accorded him to file a reply
that was set out in its July 1, 2008 order directing a response
and a reply. We accordingly vacate the district court’s order
and remand for further proceedings. We 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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