     Case: 15-50569      Document: 00513695438         Page: 1    Date Filed: 09/28/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                  United States Court of Appeals
                                                                           Fifth Circuit

                                    No. 15-50569                         FILED
                                  Summary Calendar               September 28, 2016
                                                                    Lyle W. Cayce
                                                                         Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

JAMES DEMETRI WILSON,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 6:09-CR-80-2


Before STEWART, Chief Judge, and CLEMENT and SOUTHWICK, Circuit
Judges.
PER CURIAM: *
       In 2009, James Demetri Wilson, federal prisoner # 29718-280, pleaded
guilty to a superseding indictment charging him with conspiracy to distribute
crack cocaine (count one), aiding and abetting the maintaining of drug involved
premises (count two), and aiding and abetting the possession of a firearm
during the commission of a drug trafficking crime (count three). He was


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 15-50569

sentenced to 48 months in prison on counts one and two, to be served
concurrently, and five years in prison on count three, to be served consecutively
to his sentences for counts one and two. In 2011, Wilson moved for a sentence
reduction under 18 U.S.C. § 3582(c)(2) based on Amendment 750. The district
court granted the motion and reduced his sentences for counts one and two
from 48 months to 42 months in prison.
      In 2014, Wilson filed another § 3582(c)(2) motion based on Amendment
782. The district court denied the motion, stating that Wilson was not eligible
for a sentence reduction under Amendment 782. Wilson filed a timely notice
of appeal from the denial of his § 3582(c)(2) motion, and we granted him leave
to proceed on appeal in forma pauperis.
      Wilson now argues that the district court erred when it denied his most
recent § 3582(c)(2) motion for a reduction of sentence. He asserts that the
district court erroneously determined that he was not eligible for a sentence
reduction under Amendment 782 because his sentencing guidelines range was
not lowered by the amendment.
      We review a district court’s decision whether to grant a sentence
reduction pursuant to § 3582(c)(2) for abuse of discretion, its interpretation of
the Guidelines de novo, and its findings of fact for clear error. United States v.
Henderson, 636 F.3d 713, 717 (5th Cir. 2011). An abuse of discretion occurs if
the district court bases its decision upon an error of law or a clearly erroneous
assessment of the evidence. Id.
      In evaluating whether to grant a sentence reduction, the district court
determines whether the defendant is eligible for a sentence modification and
the extent of the reduction authorized. Dillon v. United States, 560 U.S. 817,
826-27 (2010). A reduction is not authorized if an amendment “does not have
the effect of lowering the defendant’s applicable guideline range.” U.S.S.G.



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§ 1B1.10(a)(2)(B); see also § 1B1.10 comment. (n.1(A)). If the court determines
that a sentence reduction is permitted, it must then consider the relevant 18
U.S.C. § 3553(a) sentencing factors to decide whether a reduction is merited in
whole or in part under the particular circumstances of the case. Dillon, 560
U.S. at 826-27.
       The district court determined that Wilson was not eligible for a sentence
reduction under Amendment 782 because his “42-month term of incarceration
[was] less than his amended guideline range of 46 to 57 months.” The record,
however, indicates that under Amendment 782, Wilson’s original base offense
level of 24, or his subsequently amended base offense level of 20, would be
reduced to a base offense level of 18. 1 As his base and total offense levels are
the same, his original sentencing guidelines imprisonment range of 57 to 71
months, or subsequently amended sentencing guidelines range of 37 to 46
months, would be further reduced to 30 to 37 months.                        See U.S.S.G.
§ 2D1.1(c)(7) (2008 ed.); § 2D1.1, cmt. (n.10(D)(i)) (2008 ed.); § 2D1.1(c)(10)
(2011 ed.); § 2D1.1(c)(11) (2015 ed.); U.S.S.G. Ch. 5, Pt. A, Sentencing Table.
       Thus, Wilson’s sentencing guidelines range is lowered by Amendment
782, and the new range is lower than the range considered by the district court
and his current 42-month prison sentence. Accordingly, the district court erred
when it determined that Wilson was not eligible for a sentence reduction under
§ 3582(c)(2). See Henderson, 636 F.3d at 717; United States v. Garcia, 655 F.3d
426, 433 (5th Cir. 2011). Additionally, there is no indication in the record that


       1 Wilson’s offense involved 13.18 grams of powder cocaine and 15.9 grams of crack
cocaine; thus, his base offense level is determined by converting each drug to its marijuana
equivalency. See § 2D1.1, cmt. (n.8(B)) (2015). Under the drug equivalency table as revised
by Amendment 782, the powder cocaine is the equivalent of 2.6 kilograms of marijuana and
the crack cocaine is the equivalent of 56.8 kilograms of marijuana. Wilson is responsible for
59.4 kilograms of marijuana equivalency. See § 2D1.1, cmt. (n.8(D)) (2015 ed.). Under the
retroactive, amended version of § 2D1.1(c)(11), at least 40 kilograms but less than 60
kilograms of marijuana results in a base offense level of 18. § 2D1.1(c)(11) (2015 ed.).


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                                 No. 15-50569

Wilson’s sentence would have been the same but for the error in the calculation
of the guidelines range. See United States v. Andrews, 390 F.3d 840, 846 & n.9
(5th Cir. 2004).
       The order denying the motion to reduce Wilson’s sentence pursuant to
§ 3582(c)(2) is VACATED, and this matter is REMANDED for the court’s
reconsideration of the calculation of the guidelines sentencing range in light of
Amendment 782 and also to determine whether the reduction is warranted in
light of the relevant sentencing factors. See § 3582(c); § 1B1.10, comment.
(n.1(B)(i)-(ii)).
       VACATED and REMANDED.




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