UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-7000
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JOHN PAUL SMITH,
Defendant - Appellant.
Appeal from the United States District Court for the Northern District of West Virginia, at
Martinsburg. Gina M. Groh, Chief District Judge. (3:02-cr-00064-GMG-7)
Submitted: April 10, 2017 Decided: April 21, 2017
Before GREGORY, Chief Judge, and KING and AGEE, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
John Paul Smith, Appellant Pro Se. Paul Thomas Camilletti, Assistant United States
Attorney, Martinsburg, West Virginia; Michael D. Stein, Assistant United States Attorney,
Wheeling, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
We previously affirmed the district court’s order denying John Paul Smith’s motion
for a sentence reduction pursuant to 18 U.S.C. § 3582(c)(2) (2012) based on Amendment
782. Smith has now filed a motion asking us to recall our mandate, and the Government
has filed a response in opposition. Although we have inherent power to recall our
mandates, we may only exercise such power in extraordinary circumstances to avoid
injustice. See Calderon v. Thompson, 523 U.S. 538, 549-50 (1998); Alphin v. Henson, 552
F.2d 1033, 1035 (4th Cir. 1977). In light of the Government’s response to Smith’s motion
to recall the mandate, we grant the motion, vacate the district court’s order denying Smith’s
§ 3582(c)(2) motion, and remand for reconsideration.
Smith was originally sentenced under the 2002 Sentencing Guidelines on his heroin
distribution conviction to the statutory maximum 240 months after the district court found
him responsible for 639.3631 grams of heroin, 583.0393 grams of oxycodone, 85.55 grams
of cocaine base, and 115.2 grams of cocaine hydrochloride. In 2015, the district court
denied Smith’s § 3582(c)(2) motion based on Amendment 782 after concluding it did not
reduce his Guidelines range. The record does not contain any information from the
probation officer or the Government concerning the motion.
On appeal, Smith argued that the district court was required to utilize the original
marijuana equivalency found at sentencing in deciding his § 3582(c)(2) motion, without
applying new Drug Equivalency Tables for oxycodone and cocaine base that resulted from
Amendments 657 and 750. The Government was permitted to file a responding informal
brief but did not do so. We rejected Smith’s argument and affirmed. Under the policy
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statement in effect when his motion was decided, the district court was required to apply
the amendments then listed in U.S. Sentencing Guidelines Manual § 1B1.10(d) (2014)
when determining his amended Guidelines range under USSG § 1B1.10(b)(1). Those
amendments included not only Amendment 782 but also Amendments 657 and 750. We
concluded the district court was correct that Smith’s Guidelines range had not been
lowered, and he was not eligible for a reduction under § 3582(c)(2).
Smith timely filed a petition for rehearing, which we denied. Our mandate issued
on December 15, 2015. On December 14, 2016, we received Smith’s motion to recall the
mandate that he signed on December 5, 2016. In the motion, he argued that the district
court and this Court erred in applying Amendment 657 because the original quantity of
oxycodone found at sentencing was not based on the actual amount of oxycodone as
required by the amendment. He argued that the error could only be corrected by a recall
of our mandate, and his motion should be granted to prevent further injustice.
We ordered the Government to file a response to Smith’s motion to recall the
mandate. In its response, the Government does not explicitly address the issue of actual
oxycodone raised in Smith’s motion but rather asserts that following the Supreme Court’s
decision in Peugh v. United States, 133 S. Ct. 2072 (2013), “consideration of Amendment
657 as applied to Appellant would increase his sentence and constitute an ex post facto
violation.” The Government suggests Smith’s applicable amended Guidelines range based
only on Amendments 782 and 750 and without considering Amendment 657 would be
lower. However, the Government argues Smith’s motion to recall the mandate is untimely;
and this Court should not address the motion because he was originally sentenced at the
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top of his Guidelines range, and “the resulting five month sentence reduction is not an
extraordinary circumstance supporting recall of the mandate.”
In fact, Smith raised the same issue under Peugh in his timely filed rehearing
petition. We find the Government’s apparent concession that Peugh would apply in
Smith’s case to reduce his sentence, as well as its failure to address the issue of actual
oxycodone raised in Smith’s motion, to be a sufficiently extraordinary circumstance to
warrant a recall of our mandate. A recall is also necessary to avoid injustice. If Smith or
the Government is correct, Smith could be eligible for a sentence reduction of 52 months.
Accordingly, we grant Smith’s motion to recall the mandate, vacate the district
court’s order denying his § 3582(c)(2) motion, and remand for reconsideration of the
motion after an opportunity for input from the parties and probation officer. We dispense
with oral argument because the facts and legal contentions are adequately presented in the
materials before this court and argument would not aid the decisional process.
VACATED AND REMANDED
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