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

                                  ___________________
                                                                                 Fifth Circuit

                                                                               FILED
                                                                         August 30, 2018
                                     No. 16-50408
                                  Summary Calendar                        Lyle W. Cayce
                                  ___________________                          Clerk


SEALED APPELLEE,

              Plaintiff - Appellee

v.

SEALED APPELLANT,

              Defendant - Appellant

                               _______________________

                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 1:13-CR-302-1
                             _______________________

ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES
Before BENAVIDES, DENNIS, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
       Appellant appealed the district court’s denial of his motion for a sentence
reduction under 18 U.S.C. § 3582(c)(2) based on Amendment 782 to the United
States Sentencing Guidelines, which lowered the base offense levels in the
drug quantity table of U.S.S.G. § 2D1.1(c).            Relying on our precedent, this


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
                                 No. 16-50408

Court affirmed the district court’s judgment.        Sealed Appellee v Sealed
Appellant, 695 F. App’x 72 (5th Cir. 2017).       The Supreme Court granted
Appellant’s petition for writ of certiorari and vacated our judgment and
remanded the case to us for further consideration in light of Hughes v. United
States, 138 S. Ct. 1765 (2018). Sealed Appellant v. Sealed Appellee, __ S. Ct.
__, 2018 WL 2767656 (Mem.) (June 4, 2018). Upon remand, in an abundance
of caution, we requested supplemental briefing from the parties with respect
to the applicability of the Supreme Court’s decisions in Hughes, 138 S. Ct.
1765, and Koons v. United States, 138 S. Ct. 1783 (2018). Both parties have
responded. The government concedes, and we agree, that under Hughes, the
district court had to consider the Guidelines range.        Thus, because the
Appellant’s Guidelines range was part of the framework the district court
relied upon in imposing sentence, the sentence was “based on” the Guidelines
range. The government also concedes, and we agree, that any exception that
might exist under Koons is inapplicable. Finally, the government concedes,
and we agree, that the record does not clearly demonstrate that the district
court would have imposed the same sentence regardless of the Guidelines
range.
      For the above reasons, we GRANT the Appellee’s unopposed motion to
VACATE the district court’s order denying the motion for reduction of
sentence. Further, we GRANT the Appellee’s unopposed motion to REMAND
the case to the district court for reconsideration in light of Hughes, 138 S. Ct.
1765. VACATED and REMANDED.




                                       2
