UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-7016
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
OMAR JERMEL DIXON, a/k/a O Dixon, a/k/a Omar Dixon-El,
a/k/a Omar Jermel Dixon-El, a/k/a Omar Germal Dixon, a/k/a
Omar Jermal Dixon, a/k/a Omar Jermal Dixon El,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. James R. Spencer, District
Judge. (3:02-cr-00209-JRS-1)
Submitted: November 20, 2012 Decided: November 29, 2012
Before MOTZ and KEENAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Vacated and remanded by unpublished per curiam opinion.
Omar Jermel Dixon, Appellant Pro Se. Brian R. Hood, OFFICE OF
THE UNITED STATES ATTORNEY, Richmond, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Omar Jermel Dixon appeals from the denial of his 18
U.S.C. § 3582 (2006) motion for reduction of sentence pursuant
to Amendment 750 to the Sentencing Guidelines. The district
court ruled that Dixon’s Guidelines range was not changed by the
Amendment, and thus, he was ineligible for a reduction. On
appeal, Dixon asserts that (1) he was not served with the
Government’s response to his motion and, thus, could not file a
reply and (2) the district court misstated his original
Guidelines range and miscalculated his amended Guidelines range.
The evidence produced by Dixon on appeal is
unchallenged by the Government and supports both his claims.
Specifically, Dixon submitted transcripts, correspondence, and
court filings showing that he was not given notice of the
Government’s filing and that the district court erred by
including a firearm enhancement in the Guidelines calculations
when the court at Dixon’s original sentencing sustained Dixon’s
objection to the firearm enhancement. While the evidence of
miscalculation is presented by Dixon for the first time on
appeal, we have considered it because Dixon was not afforded the
opportunity to respond to either the probation officer’s
calculations or the Government’s arguments.
We review the denial of a § 3582(c)(2) motion for
abuse of discretion. United States v. Munn, 595 F.3d 183, 186
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(4th Cir. 2010). A district court abuses its discretion if it
relies on an erroneous factual or legal premise. DIRECTV,
Inc. v. Rawlins, 523 F.3d 318, 323 (4th Cir. 2008). Although
the district court’s decision to grant or deny a § 3582(c)(2)
motion is discretionary, a mistake of fact is necessarily an
abuse of discretion. Id. at 323.
Based on the undisputed filings on appeal, we conclude
that the denial of Dixon’s § 3582(c)(2) motion on the ground
that he did not qualify for a sentencing reduction likely
constituted a mistake of fact or law. However, we decline to
rule definitively on this issue because the Government conceded
that Dixon was not given an opportunity to be heard regarding
the Government’s response. As such, we vacate the district
court’s judgment and remand for the court to give Dixon an
opportunity to respond and for the court to consider the merits
of Dixon’s claim anew. 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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