                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 12-7720


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

SHAWN ANDRE ALSTON,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.   James C. Dever, III,
Chief District Judge. (5:06-cr-00200-D-1)


Submitted:   February 11, 2013            Decided:   February 28, 2013


Before NIEMEYER, MOTZ, and KING, Circuit Judges.


Vacated and remanded by unpublished per curiam opinion.


Shawn Andre Alston, Appellant Pro Se. Edward D. Gray, Jane J.
Jackson, Assistant United States Attorneys, Raleigh, North
Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

             Shawn Andre Alston appeals the district court’s denial

of a sentence reduction under 18 U.S.C. § 3582(c)(2) (2006),

pursuant     to    Amendment     750    to     the     U.S.   Sentencing       Guidelines

Manual.      The district court denied the motion because Alston had

not   been    convicted     of   a     crack      cocaine     offense.        Alston    was

convicted of unlawful possession of a firearm by a convicted

felon; however, at sentencing the district court found that he

possessed the firearm in connection with another offense—drug

trafficking—and applied the cross reference in U.S. Sentencing

Guidelines        Manual   (“USSG”)      § 2K2.1(c)(1)(A)            (2006),    to     USSG

§ 2X1.1 and § 2D1.1.           Alston’s offense level was thus determined

by the quantity of drugs he possessed when he was arrested, as

well as currency he possessed that was converted to its crack

equivalent.

             A district court may reduce a defendant’s prison term

if his Guidelines range has subsequently been lowered by the

Sentencing        Commission     and    the       reduction     is    consistent       with

applicable        policy   statements        issued     by    the    Commission.         18

U.S.C.    § 3582(c)(2).          We    review      a   district      court’s    decision

under § 3582(c)(2) for abuse of discretion.                          United States v.

Stewart, 595 F.3d 197, 200 (4th Cir. 2010).                          “A district court

abuses    its     discretion     if     it    fails     adequately       to    take    into

account judicially recognized factors constraining its exercise,

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or    if   it    bases       its    exercise       of    discretion      on    an    erroneous

factual or legal premise.”                   DIRECTV, Inc. v. Rawlins, 523 F.3d

318, 323 (4th Cir. 2008) (internal quotation marks omitted).

                When    he     was       originally       sentenced      under       the    2006

Guidelines,        Alston          was    responsible          for    3176     kilograms        of

marijuana equivalent, which gave him a base offense level of 34.

Pursuant to Amendment 750, the 157.55 grams of crack that Alston

was held responsible for converts to 562 kilograms, of marijuana

equivalent.         Added to the marijuana equivalents for the other

drugs Alston was held responsible for, the revised drug amount

is 593 kilograms of marijuana equivalent, which yields a base

offense level of 28, see USSG § 2D1.1(c)(6), under the amended

Guidelines that were in effect when the district court denied

the    § 3582(c)(2)           motion.         With       a     two-level       increase         for

possession of a firearm under § 2D1.1(b)(1), and a three-level

reduction        for     acceptance         of        responsibility         under     § 3E1.1,

Alston’s        total    revised         offense      level    becomes   27.         He    is    in

criminal        history      category       IV,       making    his   revised        Guidelines

range 100-125 months, further narrowed to 100-120 months under

USSG § 5G1.1(c)(1).                Therefore, because Alston may now receive a

sentence of less than 120 months, his Guidelines range has been

lowered by Amendment 750.

                The district court denied the § 3582(c)(2) motion on

the ground that Alston was not convicted of a crack offense,

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thus    impliedly      finding   that    Amendment         750    is   not     applicable

where    crack     determined    the     base       offense      level   via     a    cross

reference    to    § 2D1.1.       The    court’s        conclusion       was    erroneous

because    neither      § 3582(c)(2)      nor      § 1B1.10      exclude       Guidelines

calculations that result from application of a cross reference.

To determine whether a Guidelines amendment has the effect of

lowering     the       defendant’s      applicable         Guidelines        range,    the

district court should follow the direction in § 1B1.10(b)(1) to

substitute       the     amendment      for       the   corresponding          Guidelines

provision that was applied at the defendant’s sentencing, and

leave all other Guidelines calculations as they were originally.

United States v. Stewart, 595 F.3d 197, 200-01 (4th Cir. 2010);

United States v. Lindsey, 556 F.3d 238, 245 (4th Cir. 2009);

United States v. Hood, 556 F.3d 226, 232 (4th Cir. 2009).

            Because substitution of the amended Guidelines lowered

Alston’s Guidelines range, we conclude that the district court

abused    its     discretion     when    it       denied    Alston’s      § 3582(c)(2)

motion on the ground that it was not a crack offense affected by

Amendment 750.         We therefore vacate the court’s order and remand

for further proceedings.          We dispense with oral argument because

the facts and legal contentions are adequately presented in the




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materials   before   the   court   and   argument   would   not   aid   the

decisional process.



                                                    VACATED AND REMANDED




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