                                     UNPUBLISHED

                        UNITED STATES COURT OF APPEALS
                            FOR THE FOURTH CIRCUIT


                                       No. 18-6235


UNITED STATES OF AMERICA,

                     Plaintiff - Appellee,

              v.

MARK BELLAMY, a/k/a Big Mark,

                     Defendant - Appellant.



Appeal from the United States District Court for the District of South Carolina, at Florence.
R. Bryan Harwell, District Judge. (4:03-cr-00474-RBH-3)


Submitted: June 14, 2018                                           Decided: June 27, 2018


Before NIEMEYER, KING, and AGEE, Circuit Judges.


Vacated and remanded by unpublished per curiam opinion.


Mark Bellamy, Appellant Pro Se.


Unpublished opinions are not binding precedent in this circuit.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

       Mark Bellamy appeals from the district court’s text order denying his motion for a

sentence reduction under 18 U.S.C. § 3582(c)(2) (2012). The district court determined that

Bellamy’s career offender status under the Sentencing Guidelines left him ineligible for a

sentence reduction. Because we conclude that Bellamy was eligible for a sentence

reduction, we vacate the court’s text order and remand for further proceedings.

       Bellamy pled guilty to conspiracy to possess with intent to distribute 50 grams or

more of cocaine base (crack cocaine), and 5 kilograms or more of cocaine. See 21 U.S.C.

§§ 841(b)(1)(A), 846 (2012).      The presentence report indicated that Bellamy was

responsible for 11 kilograms of crack cocaine, resulting in a base offense level of 38. The

PSR further indicated that Bellamy was a career offender under U.S. Sentencing Guidelines

Manual § 4B1.1 (2002). However, his base offense level did not change because it was

higher than the career offender base offense level. Because 3 levels were deducted for

acceptance of responsibility, Bellamy’s total offense level was 35. Based on Bellamy’s

criminal history and his career offender status, he was placed in criminal history category

VI. With a total offense level of 35 and criminal history category of VI, Bellamy’s

Guidelines sentence was 292 to 365 months’ imprisonment. Bellamy was sentenced to life

imprisonment.

       In 2006, Bellamy’s sentence was vacated and remanded to the district court for

resentencing after the Government indicated that there was an error in the 18 U.S.C. § 851

(2012) notice. The district court resentenced Bellamy to 292 months’ imprisonment, the



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low end of the Guidelines sentence, which this court affirmed. United States v. Bellamy,

336 F. App’x 285 (4th Cir. 2009) (No. 06-5094).

       In May 2017, Bellamy filed a motion for a sentence reduction pursuant to 18 U.S.C.

§ 3582(c)(2), claiming that he was entitled to resentencing based on retroactive application

of Amendment 782 to the Guidelines, which reduced the offense levels for crack cocaine

offenses. According to Bellamy, his total offense level should be 33 and his Guidelines

sentence should be 235 to 293 months’ imprisonment. The district court denied the motion,

stating that Bellamy’s career offender status prevented the court from reducing his

sentence.

       A district court may reduce a prison sentence if the defendant’s Guidelines

sentencing range “has subsequently been lowered by the Sentencing Commission” and the

reduction “is consistent with applicable policy statements.” 18 U.S.C. § 3582(c)(2). “In

considering whether and by how much to reduce a sentence under § 3582(c)(2), a district

court follows a two-step inquiry.” United States v. Muldrow, 844 F.3d 434, 438 (4th Cir.

2016) (citing Dillon v. United States, 560 U.S. 817, 826 (2010)). The court first follows

the Sentencing Commission’s instructions in USSG § 1B1.10 (2016) to determine whether

the prisoner is eligible for a sentence reduction and the extent of the reduction authorized.

Id.   A reduction is not authorized under § 3582(c)(2) if “[a]n amendment listed in

subsection (d) does not have the effect of lowering the defendant’s applicable guideline

range.” USSG § 1B1.10(a)(2)(B). “To determine whether a particular amendment has that

effect, the sentencing court must ‘substitute only the amendments’ rendered retroactive by

the Commission and ‘leave all other guideline application decisions unaffected.’” United

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States v. Williams, 808 F.3d 253, 257 (4th Cir. 2015) (quoting USSG 1B1.10(b)(1)). The

district court must “determine the amended guideline range that would have been

applicable to the defendant if the amendment(s) to the guidelines listed in subsection (d)

had been in effect at the time the defendant was sentenced.” USSG § 1B1.10(b)(1). “At

step two, a district court considers relevant sentencing factors to determine whether, in its

discretion, a reduction ‘is warranted in whole or in part under the particular circumstances

of the case.’” Muldrow, 844 F.3d at 438 (quoting Dillon, 560 U.S. at 827). We review a

court’s decision for abuse of discretion and its ruling on the scope of its legal authority de

novo. Id. at 437.

       Although Bellamy was determined to be a career offender, his Guidelines range was

determined with reference to the quantity of drugs attributed to him under USSG § 2D1.1

because the offense level relating to the career offender designation was lower. See USSG

§ 4B1.1(b) (“[I]f the offense level for a career offender . . . is greater than the offense level

otherwise applicable, the offense level [generated by the career offender designation] shall

apply.”). Bellamy’s offense level determined by reference to the drug quantity was 38; the

career offender guideline was 37. Thus, Bellamy’s sentence was, in fact, based on a

guideline range that was subsequently lowered by Amendment 782. Accordingly, the

district court’s finding that Bellamy was ineligible for a sentence reduction is erroneous.

       Applying the amended drug quantity table in § 2D1.1 results in a base offense level

of 36, based on 11 kilograms of crack cocaine. Bellamy’s career offender guideline

requires a base offense level of 37. Because the offense level under the career offender

guideline is higher than the level determined by reference to the drug quantity, Bellamy’s

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base offense level can be no lower than 37. After a 3-level reduction for acceptance of

responsibility, Bellamy’s total offense level would be 34 and, at criminal history category

VI, his Guidelines sentencing range would be 262 to 327 months. Because application of

Amendment 782 to Bellamy’s Guidelines sentence results in a sentencing range that is

lower than the range applicable before the amendment, Bellamy is eligible for a sentence

reduction under § 3582(c). Because the district court mistakenly concluded that it was not

so authorized, we vacate the district court’s order and remand for the district court to

determine whether the reduction should be applied in Bellamy’s case. * We dispense with

oral argument because the facts and legal contentions are adequately presented in the

materials before the court and argument would not aid the decisional process.



                                                             VACATED AND REMANDED




       *
        We determine in this opinion that a reduction is authorized; we express no opinion
as to whether a reduction in Bellamy’s sentence is warranted. See United States v. Stewart,
595 F.3d 197, 200 (4th Cir. 2010) (providing that determination of whether to grant
reduction of sentence authorized under § 3582(c) is within discretion of the district court).
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