UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-7553
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
DEJUAN WALKER,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Frank D. Whitney,
District Judge. (3:05-cr-00097-FDW-2)
Submitted: December 21, 2012 Decided: December 31, 2012
Before KEENAN, WYNN, and THACKER, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
Dejuan Walker, Appellant Pro Se. Jennifer Lynn Dillon, Amy
Elizabeth Ray, Assistant United States Attorneys, Craig Darren
Randall, C. Nicks Williams, OFFICE OF THE UNITED STATES
ATTORNEY, Charlotte, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Dejuan Walker appeals the district court’s order
denying his 18 U.S.C. § 3582(c)(2) (2006) motion seeking
reduction of his sentence pursuant to Amendment 750. This court
reviews the denial of a § 3582(c)(2) motion for abuse of
discretion. United States v. Munn, 595 F.3d 183, 186 (4th Cir.
2010). “A district court abuses its discretion if it fails
adequately to take into account judicially recognized factors
constraining its exercise, or if it bases its exercise of
discretion on an erroneous factual or legal premise.” DIRECTV,
Inc. v. Rawlins, 523 F.3d 318, 323 (4th Cir. 2008) (internal
quotation marks omitted).
Pursuant to § 3582(c)(2), the district court may
modify the term of imprisonment “of a defendant who has been
sentenced to a term of imprisonment based on a sentencing range
that has subsequently been lowered by the Sentencing
Commission,” if the Guidelines amendment is retroactively
applicable, as is Amendment 750. 18 U.S.C. § 3582(c)(2); U.S.
Sentencing Guidelines Manual § 1B1.10(c) (2012). As the
district court correctly observed, Walker was subject to a
statutorily-mandated minimum term of imprisonment, even though
the Government’s USSG § 5K1.1 motion for a downward departure
resulted in an ultimate sentence below the mandatory minimum.
See 18 U.S.C. § 3553(e) (2006). However, it is unclear whether
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the statutory minimum should have been twenty years, as noted in
the court’s order. Walker’s plea agreement included a provision
that if he complied with the requirements of the plea agreement,
the Government would withdraw the § 851 Notice, reducing the
statutory minimum to ten years. The only discussion of the
potential withdrawal of the notice that is in the record on
appeal was in the original Presentence Report (PSR), where it
was noted that the Guidelines range would not change if the
§ 851 information was removed. It appears from the district
court’s decisions at resentencing in 2010 and on the
§ 3582(c)(2) motion, which both specify that Walker was subject
to a twenty-year mandatory minimum, that the probation office
and the district court concluded that the § 851 Notice was still
applicable. While the district court has the discretion to
refuse to further reduce Walker’s sentence, the court’s decision
may not be based on an error in law. See DIRECTV, Inc., 523
F.3d at 323. Under the terms of the plea agreement, it appears
that the § 851 Notice should have been withdrawn by the
Government if Walker complied with the terms of the agreement.
Nothing currently in the record indicates that he did not
comply. However, the record on appeal is not complete.
We therefore vacate the district court’s order and
remand to the district court to determine whether, under the
terms of the plea agreement, the § 851 Notice should have been
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withdrawn by the Government. And, if it should have been
removed, then the district court may consider the § 3582(c)(2)
motion in light of the changes wrought by Dorsey v. United
States, 132 S. Ct. 2321, 2335 (2012) (holding FSA is
retroactively applicable to defendant who committed his offenses
prior to August 3, 2010, but was sentenced after that date) and
the FSA. We do not express an opinion on whether Walker’s
sentence should ultimately be reduced.
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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