     Case: 12-10217       Document: 00512171738         Page: 1     Date Filed: 03/12/2013




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

                                                                            FILED
                                                                          March 12, 2013
                                     No. 12-10217
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

CEDRIC LAMONTE GRAY, also known as C-Nile,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 7:06-CR-7-1


Before KING, CLEMENT and HIGGINSON, Circuit Judges.
PER CURIAM:*
       Cedric Lamonte Gray, federal prisoner # 28009-077, was sentenced to 188
months in prison after he pleaded guilty to distribution of cocaine base. He
appeals the district court’s judgment that granted his motion filed pursuant to
18 U.S.C. § 3582(c)(2). Gray contends that the district court erred by failing to
afford him the opportunity to review and challenge a probation officer’s report
that the district court relied upon in making its decision to reduce Gray’s



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 12-10217    Document: 00512171738     Page: 2   Date Filed: 03/12/2013

                                 No. 12-10217

sentence to 150 months of imprisonment, a sentence above the new guidelines
range.
      ?A defendant must have notice of the contents of [a Presentence Report]
addendum and notice that the court is considering it such that he will have the
opportunity to respond to or contest it.” United States v. Mueller, 168 F.3d 186,
189 (5th Cir. 1999). The district court erred when it failed to provide Gray with
an opportunity to review and respond to the probation officer’s report. See
Mueller, 168 F.3d at 189. The record on appeal does not include the report.
Accordingly, we conclude that on this record, we cannot determine whether any
error was harmless. Thus, we vacate the judgment of the district court and
remand to permit the district court to provide Gray with an opportunity to
review and comment on the report. We express no opinion on the disposition of
Gray’s motion on remand.
      VACATED AND REMANDED.




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