[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
APR 29, 2010
No. 09-11559 JOHN LEY
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 98-00085-CR-BAE-4
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOHNNY MACK MOBLEY,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Georgia
_________________________
(April 29, 2010)
Before EDMONDSON, BIRCH and ANDERSON, Circuit Judges.
PER CURIAM:
Johnny Mack Mobley, proceeding pro se, appeals the denial of his motion
for a sentence reduction pursuant to 18 U.S.C. § 3582(c)(2). Mobley’s motion was
based on Amendment 706 to the Sentencing Guidelines, which reduced base
offense levels applicable to crack cocaine. On appeal, Mobley argues that the
district court: (1) erred by denying his § 3582(c)(2) motion based on his post-
sentencing conduct; (2) violated United States v. Booker, 543 U.S. 220, 125 S. Ct.
738, 160 L. Ed. 2d 621 (2005), by considering such conduct, (3) violated his
constitutional double jeopardy rights; and (4) erred by considering his prison
disciplinary reports without allowing him an opportunity to respond.
We review a district court’s decision not to reduce a defendant’s sentence
pursuant to § 3582(c)(2) for abuse of discretion. United States v. Moreno, 421
F.3d 1217, 1219 (11th Cir. 2005). An abuse of discretion occurs if a district court
“fails to apply the proper legal standard or to follow proper procedures in making
[its] determination.” Birmingham Steel Corp. v. TVA, 353 F.3d 1331, 1335 (11th
Cir. 2003).
In United States v. Jules, - - F.3d - -, 2010 WL 348044, at *5 (11th Cir. Feb.
2, 2010), we held that “each party must be given notice of and an opportunity to
contest new information relied on by the district court in a § 3582(c)(2)
proceeding.” In that case, the district court relied on a memorandum from the
Probation Office containing information on Jules’s prison conduct in denying his §
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3582(c)(2) motion. Id. at *1. In this case, the district court relied on Mobley’s
prison conduct record in denying Mobley’s § 3582(c)(2) motion; however, the
record does not demonstrate that Mobley was given notice or an opportunity to
contest the information contained within that record. Thus, the district court
abused its discretion by not affording Mobley this opportunity. On remand,
Mobley must be given an opportunity to contest the information contained in his
prison conduct record. The district court is not required to grant Mobley a hearing
to contest this information; allowing him to contest it in writing is sufficient. Id. at
*5.
We reject Mobley’s additional allegations of error.
AFFIRMED, in part; VACATED, in part; AND REMANDED .
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