UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-7720
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
SHAWN ANDRE ALSTON,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. James C. Dever, III,
Chief District Judge. (5:06-cr-00200-D-1)
Submitted: February 11, 2013 Decided: February 28, 2013
Before NIEMEYER, MOTZ, and KING, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
Shawn Andre Alston, Appellant Pro Se. Edward D. Gray, Jane J.
Jackson, Assistant United States Attorneys, Raleigh, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Shawn Andre Alston appeals the district court’s denial
of a sentence reduction under 18 U.S.C. § 3582(c)(2) (2006),
pursuant to Amendment 750 to the U.S. Sentencing Guidelines
Manual. The district court denied the motion because Alston had
not been convicted of a crack cocaine offense. Alston was
convicted of unlawful possession of a firearm by a convicted
felon; however, at sentencing the district court found that he
possessed the firearm in connection with another offense—drug
trafficking—and applied the cross reference in U.S. Sentencing
Guidelines Manual (“USSG”) § 2K2.1(c)(1)(A) (2006), to USSG
§ 2X1.1 and § 2D1.1. Alston’s offense level was thus determined
by the quantity of drugs he possessed when he was arrested, as
well as currency he possessed that was converted to its crack
equivalent.
A district court may reduce a defendant’s prison term
if his Guidelines range has subsequently been lowered by the
Sentencing Commission and the reduction is consistent with
applicable policy statements issued by the Commission. 18
U.S.C. § 3582(c)(2). We review a district court’s decision
under § 3582(c)(2) for abuse of discretion. United States v.
Stewart, 595 F.3d 197, 200 (4th Cir. 2010). “A district court
abuses its discretion if it fails adequately to take into
account judicially recognized factors constraining its exercise,
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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).
When he was originally sentenced under the 2006
Guidelines, Alston was responsible for 3176 kilograms of
marijuana equivalent, which gave him a base offense level of 34.
Pursuant to Amendment 750, the 157.55 grams of crack that Alston
was held responsible for converts to 562 kilograms, of marijuana
equivalent. Added to the marijuana equivalents for the other
drugs Alston was held responsible for, the revised drug amount
is 593 kilograms of marijuana equivalent, which yields a base
offense level of 28, see USSG § 2D1.1(c)(6), under the amended
Guidelines that were in effect when the district court denied
the § 3582(c)(2) motion. With a two-level increase for
possession of a firearm under § 2D1.1(b)(1), and a three-level
reduction for acceptance of responsibility under § 3E1.1,
Alston’s total revised offense level becomes 27. He is in
criminal history category IV, making his revised Guidelines
range 100-125 months, further narrowed to 100-120 months under
USSG § 5G1.1(c)(1). Therefore, because Alston may now receive a
sentence of less than 120 months, his Guidelines range has been
lowered by Amendment 750.
The district court denied the § 3582(c)(2) motion on
the ground that Alston was not convicted of a crack offense,
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thus impliedly finding that Amendment 750 is not applicable
where crack determined the base offense level via a cross
reference to § 2D1.1. The court’s conclusion was erroneous
because neither § 3582(c)(2) nor § 1B1.10 exclude Guidelines
calculations that result from application of a cross reference.
To determine whether a Guidelines amendment has the effect of
lowering the defendant’s applicable Guidelines range, the
district court should follow the direction in § 1B1.10(b)(1) to
substitute the amendment for the corresponding Guidelines
provision that was applied at the defendant’s sentencing, and
leave all other Guidelines calculations as they were originally.
United States v. Stewart, 595 F.3d 197, 200-01 (4th Cir. 2010);
United States v. Lindsey, 556 F.3d 238, 245 (4th Cir. 2009);
United States v. Hood, 556 F.3d 226, 232 (4th Cir. 2009).
Because substitution of the amended Guidelines lowered
Alston’s Guidelines range, we conclude that the district court
abused its discretion when it denied Alston’s § 3582(c)(2)
motion on the ground that it was not a crack offense affected by
Amendment 750. We therefore vacate the court’s order and remand
for further proceedings. We dispense with oral argument because
the facts and legal contentions are adequately presented in the
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materials before the court and argument would not aid the
decisional process.
VACATED AND REMANDED
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