United States v. Tommy Lee Carter, Jr.

Case: 11-15621 Date Filed: 08/13/2012 Page: 1 of 4

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
_________________________

No. 11-15621
Non-Argument Calender
__________________________

D.C. Docket No. 2:06-cr-14031-KMM-1

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

TOMMY LEE CARTER, JR.,

Defendant - Appellant.

__________________________

Appeal from the United States District Court
for the Southern District of Florida
___________________________

(August 13, 2012)

Before CARNES, FAY, and EDMONDSON, Circuit Judges.

PER CURIAM:
Case: 11-15621 Date Filed: 08/13/2012 Page: 2 of 4

In 2007, Tommy Carter, Jr. pleaded guilty to one count of possession with

intent to distribute crack cocaine in violation of 21 U.S.C. § 841(a)(1). The

presentence investigation report recommended a guidelines range of 84–105

months imprisonment. Carter did not object to the PSR, and the district court

sentenced him to 105 months in prison.

In October 2011, Carter filed a motion to reduce his sentence under 18

U.S.C. § 3582(c)(2), asserting that Amendment 750 to the sentencing guidelines

had reduced his guidelines range to 37–46 months imprisonment. The government

opposed the motion, arguing that the district court should deny it because of

Carter’s extensive criminal history and because he had three disciplinary referrals

while in prison—one for fighting, one for assault, and one for possessing a

dangerous weapon.

Carter had until November 17, 2011, to reply to the government’s response,

but the district court denied his motion for a reduced sentence on November 14,

2011, before Carter filed a reply. The court’s order stated that it had “considered

[Carter’s] motion, and [took] into account the policy statement set forth at USSG §

1B1.10 and the sentencing factors set forth in 18 U.S.C. § 3553(a), to the extent

that they are applicable.” The court did not provide any further explanation for its

decision.

2
Case: 11-15621 Date Filed: 08/13/2012 Page: 3 of 4

Carter appeals the denial of his § 3582(c)(2) motion, contending that the

district court improperly denied the motion before he had an opportunity to

respond to the government’s assertion that he had received three disciplinary

referrals while in prison. We review only for abuse of discretion a district court’s

denial of a § 3582(c)(2) motion. United States v. Moreno, 421 F.3d 1217, 1219

(11th Cir. 2005). “The district court abuses its discretion if it fails to apply the

proper legal standard or to follow proper procedures in making its determination.”

United States v. Jules, 595 F.3d 1239, 1241–42 (11th Cir. 2010) (alteration and

quotation marks omitted).

In Jules, we held “that each party [in a § 3582(c)(2) proceeding] must be

given notice of and an opportunity to contest new information relied on by the

district court in [the] proceeding.” 595 F.3d at 1245. We explained that “new

information” is information that was not available at the original sentencing. See

id. Carter’s three disciplinary referrals are “new information” because they were

not available—they did not exist—at his original sentencing. The district court

did not give Carter an opportunity to respond to that new information because it

denied his motion before he had replied to the government’s response and before

his time for doing so had expired. The question, then, is whether the district court

relied on those referrals in denying Carter’s motion. See Jules, 595 F.3d at 1245.

3
Case: 11-15621 Date Filed: 08/13/2012 Page: 4 of 4

We cannot answer that question because the district court’s order does not

provide us with enough information to do so. The court’s order states only that it

considered Carter’s motion, U.S.S.G. § 1B1.10, and the 18 U.S.C. § 3553(a)

factors; it does not mention the disciplinary referrals. Even so, the § 3553(a)

factors include “the history and characteristics of the defendant” and the need “to

protect the public from further crimes of the defendant.” 18 U.S.C. § 3553(a)(1),

(a)(2)(C). So, in considering the § 3553(a) factors, the district court may have

considered Carter’s disciplinary referrals, which are evidence of his “history and

characteristics” and are relevant to the court’s consideration of the need “to protect

the public from further crimes.” Because we cannot tell from the record whether

the district court relied on the disciplinary referrals, we must vacate its order and

remand for further proceedings consistent with the requirements of the Jules

decision.

VACATED AND REMANDED.1

1
Carter’s request to expedite his appeal is DENIED.