ON REHEARING
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-7417
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
LARRY DONNELL WILLIAMS, a/k/a “L”,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Statesville. Richard L.
Voorhees, District Judge. (5:04-cr-00045-RLV-DCK-1)
Submitted: February 12, 2013 Decided: February 22, 2013
Before KING and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Vacated and remanded by unpublished per curiam opinion.
Thomas Norman Cochran, Assistant Federal Public Defender,
Asheville, North Carolina, for Appellant. Amy Elizabeth Ray,
Assistant United States Attorney, Asheville, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Larry Donnell Williams appeals the district court’s
orders denying his motion for reduction of sentence under 18
U.S.C. § 3582(c)(2) (2006) and his motion for reconsideration. 1
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 federal Sentencing Guidelines as
retroactively applicable. 18 U.S.C. § 3582(c)(2); see also U.S.
Sentencing Guidelines Manual § 1B1.10(c), p.s. (2012).
Guidelines Amendment 750 lowered the offense levels
for drug crimes involving particular quantities of crack and was
made retroactively applicable by Amendment 759. See USSG
§ 1B1.10(c); USSG App. C Amends. 750, 759. The decision to
grant such a modification is subject to the discretion of the
court. See USSG § 1B1.10 cmt. background; cf. United States v.
Munn, 595 F.3d 183, 186 (4th Cir. 2010) (applying abuse of
discretion standard to review of order granting or denying a
§ 3582(c)(2) motion). “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
1
By separate order, we granted rehearing in this case.
2
premise.” DIRECTV, Inc. v. Rawlins, 523 F.3d 318, 323 (4th Cir.
2008) (internal quotation marks omitted).
Here, the district court denied Williams’ motion based
on the erroneous conclusion that, because Williams’ original
sentence was a variance, it was “outside the advisory
[G]uideline system,” and therefore he was not eligible for a
sentence reduction under Amendment 750. However, the fact that
the sentence a defendant ultimately receives is a variance does
not disqualify an otherwise eligible defendant from
consideration for a sentence reduction under § 3582(c)(2). See
USSG § 1B1.10 cmt. n.1(A) (explaining that eligibility for
sentence reduction under § 3582(c)(2) “is triggered only by [a
retroactive Guidelines amendment] that lowers the applicable
[G]uideline range (i.e., the [G]uideline range that corresponds
to the offense level and criminal history category determined
pursuant to § 1B1.1(a), which is determined before consideration
of any departure provision in the Guidelines manual or any
variance).”).
Accordingly, we vacate the district court’s order
denying Williams’ § 3582(c)(2) motion and remand for further
proceedings consistent with this opinion. 2 We dispense with oral
2
To the extent that Williams appeals the district court’s
denial of his motion for reconsideration, the court was without
(Continued)
3
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
authority to entertain such a motion. United States v. Goodwyn,
596 F.3d 233, 235-36 (4th Cir. 2010).
4