     Case: 12-50345      Document: 00512899840         Page: 1    Date Filed: 01/13/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                      No. 12-50345                       United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
UNITED STATES OF AMERICA,                                                January 13, 2015
                                                                           Lyle W. Cayce
              Plaintiff - Appellee                                              Clerk

v.

DERRICK DWAYNE BRISCOE,

              Defendant - Appellant




                   Appeal from the United States District Court
                        for the Western District of Texas
                              USDC No. 6:92-CR-26


Before PRADO, ELROD, and GRAVES, Circuit Judges.
PER CURIAM:*
       This is an appeal from the district court’s decision denying a motion for
sentence reduction under 18 U.S.C. § 3582. Derrick Dwayne Briscoe argues
that the district court abused its discretion in denying his sentence-reduction
motion without holding an evidentiary hearing in light of the fact that the basis
for the denial is inconsistent with the facts found at sentencing. We agree and




       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                  No. 12-50345
VACATE the district court’s denial of the motion for sentence reduction and
REMAND for clarification and/or an evidentiary hearing.
                  FACTS AND PROCEDURAL HISTORY
      Briscoe was convicted in 1993 of conspiracy to possess crack cocaine with
intent to distribute. United States v. Mitchell, 31 F.3d 271, 273-74 (5th Cir.
1994). At sentencing, the district court did not fully adopt the Presentence
Investigation Report (PSR), which charged Briscoe with responsibility for the
conspiracy’s 24 kilograms of crack cocaine. Instead, the district court assigned
Briscoe responsibility for a drug quantity of “somewhere between five and 15
kilograms of ‘crack’ cocaine.”
      Most recently, in December 2011, Briscoe filed a pro se motion for a
sentence reduction under 18 U.S.C. § 3582(c)(2) based on Sentencing
Guidelines Amendment 750.          He argued that he had been completely
rehabilitated and no longer posed a threat to society, and he contended that
under Kimbrough v. United States, 552 U.S. 85 (2007), he was entitled to a new
sentencing hearing because nothing in the record supported the sentencing
finding that he was responsible for between five and 15 kilograms of cocaine.
The district court denied the motion sua sponte, holding that Briscoe was not
eligible for relief because the amendment was not applicable to him as he was
held responsible for more than 8.4 kilograms of crack cocaine.            Briscoe
subsequently filed this appeal.
                                  DISCUSSION
      Briscoe asserts that the district court erred in ruling that he was not
eligible for a sentence reduction under 18 U.S.C. § 3582(c)(2) and abused its
discretion in making a new drug-quantity finding without providing him an
opportunity to challenge this finding. Briscoe also asserts that the district
court erred in finding that his offense involved more than 8.4 kilograms of
crack cocaine. The Government maintains that the district court’s denial of
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                                 No. 12-50345
Briscoe’s sentence-reduction motion was procedurally adequate and that the
record adequately supports the district court’s finding that Briscoe’s offense
involved more than 8.4 kilograms of crack cocaine.
      Section 3582(c)(2) permits the discretionary modification of a defendant’s
sentence in cases where the sentencing range has been subsequently lowered
by the Sentencing Commission. United States v. Doublin, 572 F.3d 235, 237
(5th Cir. 2009). In those cases, the district court may reduce the sentence after
considering the applicable factors of 18 U.S.C. § 3553 and the pertinent
guideline policy statements. Id. This court reviews a district court’s order sua
sponte denying relief under § 3582(c)(2) for abuse of discretion. United States
v. Larry, 632 F.3d 933, 936 (5th Cir. 2011). “A court abuses its discretion when
the court makes an error of law or ‘bases its decision on a clearly erroneous
assessment of the evidence.’” Id. (quoting United States v. Lipscomb, 299 F.3d
303, 338-39 (5th Cir. 2002)). The district court’s factual findings are reviewed
for clear error, while legal determinations regarding the application of the
sentencing guidelines are reviewed de novo. United States v. Evans, 587 F.3d
667, 672 (5th Cir. 2009).
      A two-step analysis applies in proceedings under § 3582(c)(2). Dillon v.
United States, 560 U.S. 817, 826-27 (2010).      The district court must first
determine “the amended guideline range that would have been applicable to
the defendant if the relevant amendment had been in effect at the time of the
initial sentencing.” United States v. Hernandez, 645 F.3d 709, 711 (5th Cir.
2011); see Dillon, 560 U.S. at 827. If the defendant is eligible for a sentence
modification, the district court must then consider any applicable factors under
§ 3553 to determine whether a modification is warranted. Hernandez, 645 F.3d
at 711-12; see Dillon, 560 U.S. at 827. Section 3582(c) proceedings are not full
resentencings, and a new sentencing hearing is not required. Dillon, 560 U.S.
at 826-31.
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                                 No. 12-50345
      When Briscoe was sentenced, between five kilograms and 15 kilograms
of crack cocaine base yielded a base offense level of 40. U.S.S.G. § 2D1.1(c)(2)
(1993).   Amendment 750 retroactively lowered the base offense levels for
various crack cocaine quantities in the drug quantity tables in § 2D1.1(c). See
U.S.S.G., app. C, amend. 750, at 391–98 (2011).           Under the retroactive,
amended version of § 2D1.1(c)(2), 8.4 kilograms or more of cocaine base triggers
the (now) highest base offense level, 38, while a quantity between 2.8
kilograms and 8.4 kilograms results in a base offense level of 36.           See §
2D1.1(c)(1) (2011); United States v. Carey, 496 F. App’x 405, 408 n.2 (5th Cir.
2012) (explaining Amendment 750).
      In the instant case, the district court denied § 3582(c)(2) relief based on
its finding that Briscoe was held responsible for more than 8.4 kilograms of
crack cocaine at sentencing. The district court determined that Briscoe’s new
guideline range is identical to his previous guideline range, and accordingly,
he is not eligible for a sentence reduction. Briscoe argues that this is clearly
erroneous. He points to the actual sentence rendered in 1993 when the district
court attributed to Briscoe “somewhere between five and 15 kilograms of ‘crack’
cocaine.” When applied to the amended offense levels, the district court’s
original range of responsibility now spans two offense level ranges. See §
2D1.1(c)(1) (2011). If Briscoe was responsible for a quantity less than 8.4
kilograms, then his sentence would be reduced based on a lower offense level.
See U.S.S.G., Chap. 5, Sentencing Table.
      The Government contends that the district court’s more-than-8.4-
kilograms finding is supported by adequate evidence. We disagree. Further,
on direct appeal, this court considered whether the district court’s five-to-15
kilogram finding was clearly erroneous and did not make new factual findings.
Mitchell, 31 F.3d at 277; see Anderson v. Bessemer City, 470 U.S. 564, 573
(1985). The district court’s original findings remain undisturbed.
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                                No. 12-50345
      Additionally, the Government’s reliance on Hernandez, 645 F.3d at 712,
is misplaced, in that Hernandez is distinguishable from the instant case. In
Hernandez, this court concluded that the district court did not abuse its
discretion in refusing to modify Hernandez’s sentence or refusing to grant an
evidentiary hearing on the matter. Id. The district court had originally stated
that Hernandez was responsible for a quantity of drugs exceeding 1.5
kilograms.   Id. at 710.   Subsequently, in considering the applicability of
Amendment 706, the district court determined it did not apply because
Hernandez was responsible for more than 4.5 kilograms of crack cocaine. Id.
This court affirmed. Id. at 712. Because the sentencing court adopted the
PSR’s determination of a drug quantity of 32.5 kilograms, that finding was
sufficient to support the defendant’s sentence under the amended guidelines.
See id. at 710-12.
      In this case, however, the district court did not adopt the PSR that
assigned Briscoe responsibility for 24 kilograms of crack cocaine. Rather, the
sentencing court adopted a drug-quantity range of somewhere between five
and 15 kilograms, thereby rejecting the PSR’s estimate.       Thus, unlike in
Hernandez, there was no prior-accepted PSR estimate on which the district
court’s resentencing decision could rest. Rather, the district court’s finding,
that Amendment 750 did not apply because Briscoe was held responsible for
more than 8.4 kilograms of crack cocaine at sentencing, is not consistent with
the sentencing record.
      There is evidence in the record to indicate that Briscoe was personally
responsible for an amount of crack cocaine less than 8.4 kilograms.
Additionally, the more-than-8.4-kilograms amount is not derived either from
an implicit or explicit review of the PSR and is contradictory to the range set
by the sentencing court.    Accordingly, we conclude that the district court


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                                       No. 12-50345
abused its discretion. 1 Further, this court has previously concluded that an
evidentiary hearing would be proper under such circumstances. See United
States v. Edwards, No. 97-60326, 1998 WL 546471,*3 (5th Cir. 1998) (“In
deciding a § 3582(c)(2) motion, the general rule applies requiring a factual
dispute before an evidentiary hearing is necessary[.]”); United States v. Jones,
370 F. App’x 477, 478 (5th Cir. 2010) (suggesting that if a prisoner contests the
factual basis for the denial of his motion under § 3582(c)(2) he is entitled to an
evidentiary hearing); and United States v. Turner, 372 F. App’x 455, 456 (5th
Cir. 2010) (noting lack of factual dispute to warrant evidentiary hearing).
Although these opinions are unpublished, they are persuasive. See Ballard v.
Burton, 444 F.3d 391, 401 & n.7 (5th Cir. 2006).
       Accordingly, we vacate the district court’s denial of the motion for
sentence reduction and remand for clarification and/or an evidentiary hearing
to determine whether Briscoe is eligible for the sentence reduction.




       1 As the first issue is dispositive, we do not decide Briscoe’s second issue of whether
the district court clearly erred in finding that his offense involved more than 8.4 kilograms
of crack cocaine.
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