                                                            [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT            FILED
                         ________________________ U.S. COURT OF APPEALS
                                                            ELEVENTH CIRCUIT
                               No. 08-14930                    APRIL 15, 2009
                           Non-Argument Calendar             THOMAS K. KAHN
                                                                  CLERK
                         ________________________

                  D. C. Docket No. 97-00158-CR-LSC-RRA

UNITED STATES OF AMERICA,


                                                                 Plaintiff-Appellee,

                                    versus

CARL RAY BURRESS,
a.k.a. Carl Burris,

                                                           Defendant-Appellant.


                         ________________________

                  Appeal from the United States District Court
                     for the Northern District of Alabama
                        _________________________

                              (April 15, 2009)

Before BIRCH, DUBINA and HULL, Circuit Judges.

PER CURIAM:

     Appellant Carl Ray Burress, a federal prisoner proceeding pro se, appeals
the district court’s denial of his motion for a reduced sentence pursuant to 18

U.S.C. § 3582(c)(2) and Amendment 706 to the Sentencing Guidelines. On

appeal, Burress, pro se, argues that the district court erred in denying his motion

for a sentence reduction because it erroneously found that over 4.5 kilograms of

crack cocaine were attributed to him at sentencing, when, in fact, he only was held

responsible for 1.5 kilograms. The government concedes this error and asserts that

the case should be remanded.

      “In a proceeding to modify a sentence under 18 U.S.C. § 3582(c)(2), [this

Court] review[s] de novo the district court’s legal conclusions regarding the scope

of its authority under the Sentencing Guidelines.” United States v. White, 305 F.3d

1264, 1267 (11th Cir. 2002). A district court may modify a term of imprisonment

“in the case of a defendant who [was] sentenced to a term of imprisonment based

on a sentencing range that has subsequently been lowered by the Sentencing

Commission.” 18 U.S.C. § 3582(c)(2).

      The parties agree, and the record demonstrates, that the district court erred in

finding Burress ineligible for a sentence reduction because it erroneously

determined that he was held responsible for over 4.5 kilograms of crack cocaine,

although the original sentencing transcript demonstrates that he was held

responsible only for at least 1.5 kilograms of crack cocaine. Based on that amount



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of crack cocaine, Amendment 706 lowered his offense level from 38 to 36 and,

correspondingly, lowered his guideline range, rendering him eligible for

§ 3582(c)(2) relief. Thus, we vacate the district court’s denial order and remand

this case for the district court to exercise its discretion in determining whether to

grant Burress a sentence reduction.

      VACATED AND REMANDED.




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