UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-6672
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
GREGORY FLETCHER,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Bryson City. Lacy H. Thornburg,
District Judge. (2:04-cr-00093-LHT-DLH-4)
Submitted: June 30, 2010 Decided: July 19, 2010
Before NIEMEYER, DUNCAN, and DAVIS, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
Gregory Fletcher, Appellant Pro Se. Amy Elizabeth Ray, Assistant
United States Attorney, Jill Westmoreland Rose, OFFICE OF THE
UNITED STATES ATTORNEY, Asheville, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Gregory Fletcher appeals the district court’s order
denying his 18 U.S.C. § 3582(c) (2006) motion for a sentence
reduction. We vacate the district court’s order and remand.
At Fletcher’s original sentencing for possession with
intent to distribute fifty grams or more of cocaine base, his
advisory guidelines range was 121 to 151 months of imprisonment,
and Fletcher was subject to a statutory mandatory minimum term
of 120 months of imprisonment. See 21 U.S.C.A. § 841(b)(1)(A)
(2006 & West Supp. 2009). The Government, however, moved for a
downward departure below the statutory mandatory minimum based
on substantial assistance pursuant to 18 U.S.C. § 3553(e) (2006)
and U.S. Sentencing Guidelines Manual (“USSG”) § 5K1.1 (2009).
Based on the Government’s motion, the district court sentenced
Fletcher to 100 months of imprisonment.
Fletcher thereafter filed a motion pursuant to 18
U.S.C. § 3582(c)(2), seeking a sentence reduction based on
Amendment 706 to the guidelines, which lowered the offense
levels for drug offenses involving cocaine base. See USSG
§ 2D1.1(c); USSG App. C Amends. 706, 711, 715. The district
court correctly concluded that Fletcher’s amended guidelines
range was 120 to 125 months of imprisonment. The court also
concluded, however, that it did not have the authority to
further reduce Fletcher’s sentence because of the statutory
2
mandatory minimum of 120 months of imprisonment. In an appeal
decided after the district court denied Fletcher’s motion, we
concluded in a case with similar facts that a defendant
originally sentenced below the statutory mandatory minimum on
account of substantial assistance was not precluded from
receiving discretionary relief pursuant to Amendment 706. See
United States v. Fennell, 592 F.3d 506 (4th Cir. 2010).
Accordingly, in light of Fennell, we 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
3