UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-6532
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
STEVEN D. CARR,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Statesville. Richard L.
Voorhees, District Judge. (5:98-cr-00246-RLV-2)
Submitted: August 23, 2010 Decided: September 20, 2010
Before NIEMEYER and SHEDD, Circuit Judges, and HAMILTON, Senior
Circuit Judge
Vacated and remanded by unpublished per curiam opinion.
Steven D. Carr, Appellant Pro Se. Douglas Scott Broyles,
Assistant United States Attorney, Charlotte, North Carolina, Amy
Elizabeth Ray, Assistant United States Attorney, Asheville,
North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Steven D. Carr appeals the district court’s order
denying his 18 U.S.C. § 3582(c) (2006) motion for a sentence
reduction. For the reasons set forth below, we vacate the
district court’s order and remand for further proceedings.
In 1999, Carr was convicted, following a jury trial,
of conspiracy to possess with intent to distribute cocaine base
(Count 1), two counts of possession with intent to distribute
cocaine base and aiding and abetting (Counts 4 and 5), and
possession with intent to distribute cocaine base (Count 6). In
the presentence report (“PSR”), the probation officer grouped
the four counts pursuant to U.S. Sentencing Guidelines Manual
(“USSG”) § 3D1.2(d) (1998). Finding that Carr was responsible
for more than 1.5 kilograms of cocaine base, the probation
officer assigned a total offense level of thirty-eight pursuant
to USSG § 2D1.1 (1998). Carr was designated a career offender
pursuant to USSG § 4B1.1, and assigned a criminal history
category of VI. The probation officer therefore calculated a
sentencing range of 360 months to life. The district court
sentenced Carr to a total of 360 months of imprisonment on each
of the four drug counts, to run concurrently to each other and
consecutively to his state sentences.
Because the amount of cocaine base attributable to
Carr had not been alleged in the indictment or submitted to the
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jury, this court concluded on appeal that Carr’s sentence
violated the rule set forth in Apprendi v. New Jersey, 530 U.S.
466 (2000). We therefore affirmed Carr’s conviction, vacated
his sentence, and remanded for resentencing in light of Apprendi
and the panel decision in United States v. Angle, 230 F.3d 113
(4th Cir. 2000), vacated, 254 F.3d 514 (4th Cir. 2001) (en
banc). United States v. Carr, No. 00-4001, 2000 WL 1616978 (4th
Cir. Oct. 30, 2000) (unpublished).
On remand, Carr objected to the determination of the
drug quantity attributable to him as relevant conduct. The
district court found by a preponderance of the evidence that
Carr was responsible for more than 1.5 kilograms of cocaine base
and resentenced him to the minimum of the guideline range, or
360 months. Specifically, the district court sentenced Carr to
240 months on Count 1; sixty months on each of Counts 4 and 5 to
run concurrently to each other and consecutively to the sentence
imposed in Count 1; and sixty months on Count 6 to run
consecutively to the sentence imposed in Count 1. See USSG
§ 5G1.2(d); Angle, 254 F.3d at 518 (“In the case of multiple
counts of conviction, the sentencing guidelines instruct that if
the total punishment mandated by the guidelines exceeds the
statutory maximum of the most serious offense of conviction, the
district court must impose consecutive terms of imprisonment to
the extent necessary to achieve the total punishment.”). We
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then affirmed Carr’s sentence. United States v. Carr, 34 F.
App’x 921 (4th Cir. 2002) (No. 01-4740).
Carr now seeks a reduction of sentence pursuant to 18
U.S.C. § 3582(c) (2006), contending that he is entitled to a
reduction under Amendment 706 of the Guidelines, which lowered
the offense levels for drug offenses involving crack cocaine.
On August 17, 2009, the probation officer prepared a supplement
to the PSR, in which she concluded that Carr was eligible for a
sentence reduction. The probation officer found that, under
Amendment 706, Carr faced a revised guideline range of 324 to
405 months, based on a revised offense level of thirty-six and a
criminal history category of VI. She further recommended that
Carr’s sentence be reduced to 324 months on each count, to run
concurrently.
On February 19, 2010, presumably in light of the fact
that the August 17, 2009 supplement had not taken the Apprendi
remand into account, the probation officer prepared a revised
supplement to the PSR. In this version, she maintained that
both Carr’s initial and revised guideline ranges were capped at
240 months pursuant to USSG § 5G1.1 and the twenty-year
statutory maximum set forth in 21 U.S.C. § 841(b)(1)(C) (2006).
The probation officer concluded that no reduction was warranted
as Carr’s guideline range had not been lowered by Amendment 706.
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That same day, the district court entered an order
denying Carr’s motion for sentence reduction. The judge
calculated the relevant guideline ranges as follows:
Previous Offense Level: 38
Criminal History Category: VI
Previous Guideline Range: 240 to 240 months
Amended Offense Level: 37
Criminal History Category: VI
Amended Guideline Range: 240 to 240 months
The court concluded that no reduction was warranted “as the
amended sentence in this case was limited to a statutory maximum
of 20 years (240 months) by Apprendi v. New Jersey, which then
became the applicable guideline range, per USSG § 5G1.1(a). The
revised guideline range is similarly limited and the guideline
range remains unchanged.”
Under § 3582(c)(2), the district court may modify the
term of imprisonment “of a defendant who has been sentenced
. . . based on a sentencing range that has subsequently been
lowered,” if the amendment is listed in the Guidelines as
retroactively applicable. 18 U.S.C. § 3582(c)(2); see also USSG
§ 1B1.10, p.s. (2009). Amendment 706 applies retroactively.
See USSG § 1B1.10(c), p.s. We review the district court’s
denial of a motion under § 3582(c)(2) for abuse of discretion.
See United States v. Munn, 595 F.3d 183, 186 (4th Cir. 2010). A
court abuses its discretion if it fails or refuses to exercise
discretion, or if it relies on erroneous legal or factual
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premises. James v. Jacobson, 6 F.3d 233, 239 (4th Cir. 1993);
see Randall v. Prince George’s County, 302 F.3d 188, 211 (4th
Cir. 2002) (stating that “[a] court . . . abuses its discretion
if it makes a mistake of law”).
We conclude that the district court abused its
discretion in denying Carr’s motion for sentence reduction. The
district court, relying on the revised supplement to the PSR,
applied USSG § 5G1.1(a) and concluded that Carr’s initial
guideline range was 240 to 240 months. The court apparently
overlooked the fact that this case involved multiple counts of
conviction. Section 5G1.1(a) applies to “Sentencing on a Single
Count of Conviction,” and states that “[w]here the statutorily
authorized maximum sentence is less than the minimum of the
applicable guideline range, the statutorily authorized maximum
sentence shall be the guideline sentence.” Because Carr was
sentenced on multiple counts of conviction, his initial
guideline range was instead governed by USSG § 5G1.2. Based on
an offense level of thirty-eight and a criminal history category
of VI, before the application of Amendment 706, Carr faced a
guideline range of 360 months to life. Because the statutory
maximum on each individual drug count was 240 months, however,
the district court properly applied the “stacking rule” set
forth in USSG § 5G1.2(d) and imposed consecutive sentences in
order to obtain a prison term within the prescribed guideline
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range. See United States v. Stokes, 261 F.3d 496, 500-01 (4th
Cir. 2001); Angle, 254 F.3d at 518-19. Rather than being
constrained to a statutory maximum sentence of 240 months, the
district court, pursuant to the stacking analysis set forth in
§ 5G1.2, imposed a guideline sentence of 360 months.
Applying Amendment 706, a defendant responsible for at
least 1.5 kilograms (but less than 4.5 kilograms) of cocaine
base faces a base offense level of thirty-six. See USSG
§§ 1B1.10(b)(1), p.s., 2D1.1(c)(2) (2009). The district court
erroneously concluded, however, again based on the revised
supplement to the PSR, that Carr faced a base offense level of
thirty-seven under the career offender provision set forth in
USSG § 4B1.1(b) (“[I]f the offense level for a career offender
from the table in this subsection is greater than the offense
level otherwise applicable, the offense level from the table in
this subsection shall apply.”). In the revised supplement, the
probation officer apparently assumed that Carr faced a statutory
maximum term of life, which would have mandated an offense level
of thirty-seven pursuant to USSG § 4B1.1(b)(A). Carr, however,
faced a statutory maximum term of twenty years, which yields an
offense level of thirty-two pursuant to USSG § 4B1.1(b)(C).
Pursuant to § 4B1.1(b), the higher offense level set forth in
§ 2D1.1(c)(2) (2009) applies.
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With an amended offense level of thirty-six and a
criminal history category of VI, the amended guideline range is
324 to 405 months of imprisonment. Because Carr’s sentencing
range was clearly lowered by Amendment 706, we conclude that he
is eligible for a sentence reduction pursuant to § 3582(c)(2).
We therefore vacate the district court’s order and remand for
further proceedings, expressing no opinion as to whether the
district court should exercise its discretion to grant the
motion. 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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