                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 12-7016


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

OMAR JERMEL DIXON, a/k/a O Dixon, a/k/a Omar Dixon-El,
a/k/a Omar Jermel Dixon-El, a/k/a Omar Germal Dixon, a/k/a
Omar Jermal Dixon, a/k/a Omar Jermal Dixon El,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. James R. Spencer, District
Judge. (3:02-cr-00209-JRS-1)


Submitted:   November 20, 2012            Decided:   November 29, 2012


Before MOTZ and KEENAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Vacated and remanded by unpublished per curiam opinion.


Omar Jermel Dixon, Appellant Pro Se.    Brian R. Hood, OFFICE OF
THE UNITED STATES ATTORNEY, Richmond, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

            Omar Jermel Dixon appeals from the denial of his 18

U.S.C. § 3582 (2006) motion for reduction of sentence pursuant

to Amendment 750 to the Sentencing Guidelines.                                    The district

court ruled that Dixon’s Guidelines range was not changed by the

Amendment, and thus, he was ineligible for a reduction.                                          On

appeal,    Dixon       asserts       that   (1)     he       was    not    served       with    the

Government’s response to his motion and, thus, could not file a

reply     and    (2)     the     district          court       misstated          his    original

Guidelines range and miscalculated his amended Guidelines range.

            The        evidence        produced          by        Dixon     on      appeal      is

unchallenged by the Government and supports both his claims.

Specifically, Dixon submitted transcripts, correspondence, and

court   filings        showing       that   he     was       not    given     notice      of    the

Government’s       filing      and     that        the       district        court      erred    by

including a firearm enhancement in the Guidelines calculations

when the court at Dixon’s original sentencing sustained Dixon’s

objection to the firearm enhancement.                              While the evidence of

miscalculation         is   presented       by     Dixon       for     the    first      time    on

appeal, we have considered it because Dixon was not afforded the

opportunity       to    respond        to   either            the     probation         officer’s

calculations or the Government’s arguments.

            We    review       the    denial       of    a    §     3582(c)(2)       motion     for

abuse of discretion.             United States v. Munn, 595 F.3d 183, 186

                                               2
(4th Cir. 2010).           A district court abuses its discretion if it

relies    on    an   erroneous       factual         or    legal    premise.      DIRECTV,

Inc. v. Rawlins, 523 F.3d 318, 323 (4th Cir. 2008).                               Although

the district court’s decision to grant or deny a § 3582(c)(2)

motion is discretionary, a mistake of fact is necessarily an

abuse of discretion.             Id. at 323.

               Based on the undisputed filings on appeal, we conclude

that the denial of Dixon’s § 3582(c)(2) motion on the ground

that    he    did    not    qualify    for       a    sentencing      reduction     likely

constituted a mistake of fact or law.                         However, we decline to

rule definitively on this issue because the Government conceded

that Dixon was not given an opportunity to be heard regarding

the    Government’s        response.       As    such,       we    vacate   the   district

court’s      judgment      and    remand   for       the    court    to   give    Dixon   an

opportunity to respond and for the court to consider the merits

of Dixon’s claim anew.              We dispense with oral argument because

the facts and legal contentions are adequately presented in the

materials      before      this    court   and        argument      would   not   aid     the

decisional process.

                                                                   VACATED AND REMANDED




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