                               UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                               No. 08-7723


UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

             v.

COURTNEY ROSS,

                  Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond.  Henry E. Hudson, District
Judge. (3:02-cr-00347-HEH-1)


Submitted:    March 26, 2009                 Decided:    April 22, 2009


Before NIEMEYER and SHEDD, Circuit Judges, and          HAMILTON, Senior
Circuit Judge.


Vacated and remanded by unpublished per curiam opinion.


Courtney Ross, Appellant Pro Se. Michael Calvin Moore, Michael
Cornell Wallace, Assistant United States Attorneys, Richmond,
Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

            Courtney Ross appeals from the district court’s order

denying    his    motion    for    reduction       of   sentence     pursuant       to   18

U.S.C. § 3582(c) (2006).            Because the district court, we assume

inadvertently,      entered       its    order   prior    to   the     date    on   which

Ross’s reply to the Government’s response was due, we vacate the

district court’s order and remand for further proceedings.

            On    July     1,    2008,    the    district      court    directed         the

Government and the Probation Office to respond to Ross’s motion

by providing information about: (1) Ross’s currently-projected

date of release; (2) any educational or vocational training that

he has received in prison; (3) any treatment for substance abuse

or physical or mental health that he has received in prison;

(4) his conduct after sentencing, including his compliance with

the rules of the institution in which he has been incarcerated;

and (5) any relevant public safety considerations.                        The district

court directed Ross to reply to the Government’s response within

thirty days of the date it was filed in the event that the

Government opposed his motion.

            The    Government’s         response    acknowledged       that     Ross     is

eligible    for     a    sentence        reduction       under     U.S.       Sentencing

Guidelines Manual (“USSG”) § 2D1.1 (2007) (Amendment 706); USSG

§ 1B1.10(c) (Mar. 3, 2008).                 However, the Government opposed

Ross’s    motion    on     the    basis     of   his     criminal      record,      which

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“includes numerous instances of violent conduct,” regardless of

any mitigating evidence that might be presented regarding his

behavior and progress while incarcerated.                     The Government filed

its   response       on    August    1,   2008.     On   August     13,    2008,    the

district     court        denied     Ross’s    motion,        finding     that    while

Amendment 706 made him eligible for a sentence reduction, the

court in its discretion would not grant him that relief because

his   long     and    violent       criminal   history,       including     attempted

robbery, abduction, malicious wounding, and use of a firearm in

the commission of a felony, presents a threat to public safety.

The court’s order did not indicate that it was knowingly ruling

on Ross’s motion prior to the date on which his reply to the

Government’s response was due.

             Although we express no opinion regarding the district

court’s evaluation of the merits of Ross’s motion, the court

should provide Ross the opportunity accorded him to file a reply

that was set out in its July 1, 2008 order directing a response

and a reply.         We accordingly vacate the district court’s order

and   remand    for       further    proceedings.        We    dispense    with    oral

argument because the facts and legal contentions are adequately

presented in the materials before the court and argument would

not aid the decisional process.

                                                              VACATED AND REMANDED



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