UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-6041
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
GILBERT KING, a/k/a Jimmy,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Robert E. Payne, Senior
District Judge. (3:97-cr-00352-REP-3)
Submitted: April 15, 2010 Decided: June 16, 2010
Before NIEMEYER, MOTZ, and SHEDD, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
Amy Leigh Austin, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Richmond, Virginia, for Appellant. Stephen Wiley Miller,
Assistant United States Attorney, Richmond, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Gilbert King appeals from the denial of his 18 U.S.C.
§ 3582 (2006) motion for reduction of sentence. At his original
sentencing, King was found responsible for in excess of 1.5
kilograms of crack cocaine. In response to King’s § 3582
motion, the Government filed a response, arguing that King was
ineligible for relief because the presentence report (“PSR”)
established that King was responsible for more than 4.5
kilograms of cocaine base. As such, the Guidelines range would
be unchanged. 1 Without conducting a hearing, the district court
denied the motion, stating that, after consideration of King’s
Motion for Reduction of Sentence [], the response
thereto, the record, the presentence report, the
Cocaine Base Amendment Application Worksheet prepared
by the Probation Office and all other applicable
requirements of law, it is hereby ORDERED that the
defendant’s 18 U.S.C. § 3582 Motion for Reduction of
Sentence [] is denied because the defendant’s original
sentence, as reduced previously, 2 is appropriate and,
in any event, the defendant is not eligible for
sentence reduction on account of the quantity of drugs
involved in his conviction.
1
The 1997 edition of the Guidelines Manual, used to
calculate King’s sentencing range, assigned level 38 to offenses
involving 1.5 kilograms or more of cocaine base. U.S.
Sentencing Guidelines Manual § 2D1.1(c)(1) (1997). In contrast,
the 2009 edition assigns level 38 to offenses involving 4.5
kilograms or more of cocaine base, and level 36 to offenses
involving more than 1.5 kilograms but less than 4.5 kilograms of
cocaine base. USSG § 2D1.1(c)(1), (2) (2009).
2
King’s sentence was previously reduced under Fed. R. Crim.
P. 35(b), based upon his cooperation with the Government.
2
King timely appealed.
On appeal, King asserts that the sentencing court only
found him responsible for “in excess of 1.5 kilograms” of crack
cocaine and that to hold him responsible for a larger amount is
unfair, given that he had no reason or opportunity to contest
such an amount. We find that the record in this case is too
sparse to support a finding that the sentencing court concluded
that King was responsible for more than 4.5 kilograms of crack
cocaine. First, the PSR describes a conspiracy responsible for
a large amount of crack cocaine; however the PSR makes no
specific findings as to whether King was responsible for the
entire amount discussed. In fact, the PSR notes that “King’s
role was not as well defined as that of [the other
conspirators].” Second, the PSR describes amounts of powder
cocaine but does not specifically calculate the corresponding
amount of crack cocaine. Finally, because King did not appeal
his conviction, his sentencing hearing was not transcribed.
Thus, it is not known whether King objected or what specific
findings the sentencing court made. Accordingly, we conclude
that a denial of the motion to reduce sentence based upon the
drug amount was an abuse of discretion, absent further
proceedings or an expanded record. See United States v. Moore,
582 F.3d 641, 644-45 (6th Cir. 2009) (finding abuse of
discretion in § 3582 proceeding where district court did not
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consider objection to drug amount and PSR did not mandate
conclusion that defendant was responsible for over 4.5 kilograms
of crack cocaine).
The district court additionally found that King’s
“original sentence, as reduced previously” remained
“appropriate.” While the district court may indeed be correct,
the court’s conclusory reasoning does not permit appellate
review. It is unclear whether the court was under the mistaken
impression that King’s prior Rule 35 reduction barred or legally
weighed against a further reduction. See United States v.
Stewart, 595 F.3d 197, 202 (4th Cir. 2010) (holding that
district court may further reduce a sentence under § 3582, even
if the sentence is already below the amended Guidelines range as
a result of a Fed. R. Crim. P. 35 reduction). It is further
unknown whether the district court’s erroneous decision on the
drug amount issue impacted its determination that King’s prior
sentence remained appropriate. Any determination as to what the
court’s alternate ruling was based upon would be mere
conjecture.
Accordingly, we vacate the district court’s order and
remand for further proceedings consistent with this opinion. We
express no opinion as to the appropriateness or permissibility
of a § 3582 sentence reduction. We deny King’s motion for
appointment of counsel. We dispense with oral argument because
4
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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