                            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                            UNPUBLISHED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Vacated and remanded by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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).



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