                    Case: 12-10107         Date Filed: 07/17/2012   Page: 1 of 5

                                                                       [DO NOT PUBLISH]



                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT
                                    ________________________

                                            No. 12-10107
                                        Non-Argument Calendar
                                      ________________________

                           D.C. Docket No. 2:02-cr-00191-LSC-RRA-1



UNITED STATES OF AMERICA,

llllllllllllllllllllllllllllllllllllllll                                   Plaintiff-Appellee,

                                                versus

LARON DIMITRIC PLAYER,

llllllllllllllllllllllllllllllllllllllll                                Defendant-Appellant.

                                     ________________________

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

                                            (July 17, 2012)

Before TJOFLAT, MARCUS and BLACK, Circuit Judges.

PER CURIAM:
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      On January 23, 2003, Laron Dimitric Player, having pled guilty to all three

counts of an indictment, was sentenced to concurrent prison terms of 92 months on

Counts 1 and 2—which charged him with conspiracy, in violation of 21 U.S.C. §

846 to possess with intent to distribute crack cocaine and maijuana, in violation of

21 U.S.C. § 841(a), and the substantive § 841(a) offense—and to a consecutive

prison term of 60 months for possession of a firearm during and in relation to a

drug trafficking offense, in violation of 18 U.S.C. § 924(c)(1)(A). In November

2011, Player moved the District Court to reduce his sentences on Counts 1 and 2

pursuant to 18 U.S.C. § 3582(c)(2) and Amendment 750 to the Sentencing

Guidelines. Amendment 750, made retroactively applicable effective November

1, 2011, by Amendment 759, made permanent the temporary emergency

Amendment 748, which revised the crack cocaine quantity tables listed in

U.S.S.G. § 2D1.1(c), pursuant to the Fair Sentencing Act of 2010. See U.S.S.G.

App. C, Amend. 750, Reason for Amend. and U.S.S.G. App. C, Amend. 759. As a

result of these amendments, § 2D1.1(c) now assigns a base offense level of 20 in

cases involving at least 11.2 grams but less than 16.8 grams of crack cocaine.

U.S.S.G. § 2D1.1(c)(10) (2011). This represented a decrease of six levels from the

offense levels the District Court used in calculating the sentence range for Player

sentences on Counts 1 and 2.

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       The District Court denied Player’s motion in December 2011. The court

concluded that the concurrent sentences on Counts 1 and 2 had already expired;

thus, he was serving the consecutive Count 3 sentence. The court also concluded

that he was not eligible for a sentence reduction because U.S.S.G. § 1B1.10, cmt. 3

provided that the term of imprisonment could not be reduced below the time

served.1 Given these conclusions, the court did not determine whether, in the

exercise of its discretion, it should grant Player § 3582(c)(2) relief.

       Player, appealing pro se, now appeals, arguing that the District Court

improperly concluded that his crack cocaine sentences had already expired and

that resentencing him within the new Guidelines sentence range would not have

resulted in a sentence lower than the time he had already served. The Government

concedes that the district court erred by denying Player’s motion on the basis that

he had already finished serving his crack cocaine sentences, and that its judgment

denying Player’s motion should be vacated and the case remanded for

consideration of the merits of Player’s § 3582(c)(2) motion.

       Section 924 of Title 18 in the U.S. Code provides that a person convicted of

using, carrying, or possessing a firearm in furtherance of a crime of violence or a


       1
          The court nonetheless did find that after applying Amendment 750 and the three-level
reduction of Player’s offense level for acceptance of responsibility, Player’s new offense level
would be 17 and his Guidelines sentence range would be 60 to 63 months’ imprisonment.

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drug trafficking crime must be sentenced to a mandatory minimum of five years,

or 60 months, of imprisonment. 18 U.S.C. § 924(c)(1)(A)(i). That statute also

states that “no term of imprisonment imposed on a person under this subsection

[§ 924(c)] shall run concurrently with any other term of imprisonment

imposed . . . including any term of imprisonment imposed for the . . . drug

trafficking crime during which the firearm was . . . possessed.”

18U.S.C. § 924(c)(1)(D)(ii). The statute does not specify in what order the

various sentences should run, but the legislative history to the addition of

§ 924(c)(1)(D) provides that “the Committee intends that the mandatory sentence

under the revised subsection 924(c) be served prior to the start of the sentence for

the underlying or any other offense.” S.Rep. No. 225, at 313-14 (1984), reprinted

in 1984 U.S.C.C.A.N. 3182, 3492 (emphasis added). Moreover, in Jackson v.

United States, 976 F.2d 679 (11th Cir. 1992), we held, in a habeas context, that a

mandatory consecutive sentence for possession of a firearm during a drug

trafficking crime under § 924(c) must be served before any other sentence for the

underlying offense. Id. at 682. The defendant in Jackson was convicted of armed

robbery and using a firearm pursuant to § 924(c), and because the armed robbery

sentence was parolable, the order in which the sentences were served could affect

the total amount of time ultimately served. See id. We noted that, although the

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statute did not specify which sentence should run first, the legislative history

discussed above indicated that the § 924(c) sentence should be served before any

other sentence. Id. (citing S.Rep. No. 225, at 313 (1984)).

      The District Court abused its discretion by denying Player’s § 3582(c)(2)

motion on the basis that he had already completed his sentences on Counts 1 and

2, because Jackson’s reasoning remains valid in this circuit. Under Jackson,

Player has served his Count 2 sentence. Therefore, when he filed his § 3582(c)(2)

motion in November 2011, he had served approximately three years of the

concurrent sentences on Counts 1 and 2. Given this circumstance, we must vacate

the District Court’s judgment and remand the case so that the District Court may

determine whether a discretionary reduction of the sentences on Counts 1 and 2

pursuant to § 3582(c)(2) would be appropriate.

      VACATED and REMANDED.




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