     Case: 08-51083 Document: 00511385702 Page: 1 Date Filed: 02/17/2011




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

                                                 FILED
                                                                          February 17, 2011
                                     No. 08-51083
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

KALUB DOYLE, JR.,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                         for the Western District of Texas
                            USDC No. 6:95-CR-104-ALL


Before HIGGINBOTHAM, SMITH, and HAYNES, Circuit Judges.
PER CURIAM:*
       Kalub Doyle, Jr., federal prisoner # 56795-079, appeals the district court’s
ruling on his 18 U.S.C. § 3582(c)(2) motion seeking modification of his 400-month
sentence for possession with the intent to distribute 50 grams or more of crack
cocaine. The Government declined to respond to Doyle’s brief. The district court
granted Doyle’s § 3582(c)(2) motion, reduced his offense level by two levels
pursuant to Amendment 706, and modified his sentence to 360 months of
imprisonment.

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
    Case: 08-51083 Document: 00511385702 Page: 2 Date Filed: 02/17/2011

                                  No. 08-51083

      Doyle argues that the district court misapplied the guidelines range. He
contends that his amended guidelines range should have been 292-365 months.
Doyle also argues that he is entitled to resentencing in accordance with United
States v. Booker, 543 U.S. 220 (2005), and its progeny.
      A district court’s decision whether to reduce a sentence under § 3582(c)(2)
is reviewed for abuse of discretion. United States v. Evans, 587 F.3d 667, 672
(5th Cir. 2009), cert. denied, 130 S. Ct. 3462 (2010). “A district court ‘abuses its
discretion if it bases its decision on an erroneous view of the law or on a clearly
erroneous assessment of the evidence.’” United States v. Smith, 417 F.3d 483,
486-87 (5th Cir. 2005).       We review de novo the district court’s “legal
determinations regarding the application of the sentencing guidelines.” United
States v. Mueller, 168 F.3d 186, 189 (5th Cir. 1999).
      The district court reduced Doyle’s offense level to 36, which, when
combined with Doyle’s Category V criminal history score, resulted in a
guidelines range of 292-365 months. See U.S.S.G. Ch. 5 Pt. A. However, the
district court erroneously determined that Doyle’s amended guidelines range
was 324-405 months. Therefore, the court abused its discretion in the
modification of Doyle’s sentence. See Smith, 417 F.3d at 486-87.
      In imposing the 360-month sentence, the district court indicated that it
intended to impose a sentence in the middle of the guidelines range. Though the
sentence imposed falls within the correctly calculated guidelines range, it is not
in the middle of that range, so we cannot conclude that the error of law was
harmless. See United States v. Andrews, 390 F.3d 840, 846 (5th Cir. 2004)(“In
sentencing cases, the burden is on the government to show that absent the error,
the sentence would have been the same.”). The judgment is vacated and
remanded for further proceedings. See Mueller, 168 F.3d at 189-90.
      Doyle’s contention that he is entitled to a full resentencing is without
merit. Section 3582(c)(2) proceedings are not full resentencings. Dillon v.
United States, 130 S. Ct. 2683, 2690-94 (2010). Moreover, the principles of

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                                   No. 08-51083

Booker and its progeny do not apply to § 3582(c)(2) proceedings, and a sentencing
court lacks discretion to reduce the sentence any further than the reduction
allowed under § 1B1.10. Id.; United States v. Doublin, 572 F.3d 235, 238 (5th
Cir.), cert. denied, 130 S. Ct. 517 (2009).
      VACATED AND REMANDED.




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