     Case: 12-30820       Document: 00512242664         Page: 1     Date Filed: 05/15/2013




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

                                                                            FILED
                                                                           May 15, 2013
                                     No. 12-30820
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

DWIGHT D. JACKSON, also known as D-Boy, also known as Big Head,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 5:09-CR-279-6


Before STEWART, Chief Judge, and OWEN and GRAVES, Circuit Judges.
PER CURIAM:*
       Dwight D. Jackson, federal prisoner # 14519-035, appeals the district
court’s denial of a sentence reduction pursuant to 18 U.S.C. § 3582(c)(2), the Fair
Sentencing Act, and Amendment 750 to the Sentencing Guidelines. Jackson
argues that the district court abused its discretion by denying him a § 3582(c)(2)
sentence reduction without conducting a new evaluation of the 18 U.S.C.
§ 3553(a) sentencing factors. He maintains that the district court’s reliance on



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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                                    No. 12-30820

its evaluation of the § 3553(a) factors at the time of sentencing constituted
reversible error.
      The Government argues that the district court did not abuse its discretion
by not making a new evaluation of the § 3553(a) factors because Jackson did not
present new arguments to the district court that he did not present at
sentencing. Alternatively, it maintains that any error was harmless because
Jackson did not present evidence or argument that would have changed the
district court’s evaluation of the § 3553(a) factors.
      Jackson asserts that the argument he presented, that failing to reduce his
sentence would result in his receiving a higher sentence because he provided
substantial assistance, was an argument falling under § 3553(a)(6), which
provides that unwarranted sentence disparities should be avoided. He contends
that the mitigation information that he filed the day after the district court’s
final ruling constitutes new information affecting the evaluation of the § 3553(a)
factors.
      We review a district court’s decision “whether to reduce a sentence
pursuant to . . . § 3582(c)(2) for abuse of discretion, . . . its interpretation of the
Guidelines de novo, and its findings of fact for clear error.” United States v.
Henderson, 636 F.3d 713, 717 (5th Cir. 2011) (internal quotation marks and
citation omitted). When a court in applying its discretion fails to consider the
factors as required by law, it . . . abuses its discretion.” United States v. Larry,
632 F.3d 933, 936 (5th Cir. 2011) (internal quotation marks and citation
omitted).
      The district court implicitly ruled that Jackson was eligible for a sentence
reduction under § 3582(c)(2), but it determined that a reduction should not be
granted. In denying Jackson a sentence reduction, it stated that Jackson
“previously received adjustment under a Government motion filed pursuant to
18 U.S.C. § 3553(e) at which time the Court had determined a total sentence
pursuant to 18 U.S.C. § 3553(a) factors. Accordingly, the Court will not reduce

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                                  No. 12-30820

the Defendant’s sentence further.” This language shows that the district court
abused its discretion by failing to conduct the required contemporaneous review
of the § 3553(a) factors. See Henderson, 636 F.3d at 718-19.
      While Jackson did not present any arguments that directly related to the
§ 3553(a) factors prior to the ruling of the district court, he did make an
argument that failing to reduce his sentence would negate the credit he received
for providing substantial assistance. Given that Jackson raised a new argument,
that the district court did not conduct a contemporaneous evaluation of the
§ 3553(a) factors, and that the district court did not give any indication as to the
conclusion it would have made if it had made a contemporaneous evaluation of
the § 3553(a) factors, the Government has not met its burden of showing
harmless error by providing “sufficient evidence to convince the appellate court
that the district court would have imposed the same sentence, absent the error.”
United States v. Ibarra-Luna, 628 F.3d 712, 718 (5th Cir. 2010) (internal
quotation marks and citation omitted).
      Accordingly, the ruling of the district court is vacated and this case is
remanded to the district court for a reevaluation of Jackson’s request for relief
under § 3582(c)(2). On remand, the district court should review Jackson’s
guidelines sentence range because the record shows that the revised guidelines
sentence range calculations presented to the district court included an
unwarranted three-level base offense level reduction under U.S.S.G.
§ 2D1.1(a)(5) in addition to the two-level base offense level reduction provided
by Amendment 750.
      VACATED AND REMANDED.




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