                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 08-7542


UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

             v.

THERESA CREPEAU, a/k/a T Crepeau,

                  Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Newport News.   Raymond A. Jackson,
District Judge. (4:94-cr-00002-JEB-4)


Submitted:    January 14, 2009              Decided:   February 13, 2009


Before TRAXLER, GREGORY, and SHEDD, Circuit Judges.


Affirmed in part; vacated in part and remanded by unpublished
per curiam opinion.


Theresa Crepeau, Appellant Pro Se.   Kevin Michael Comstock,
Assistant United States Attorney, Norfolk, Virginia, Stephen
Wiley Miller, Assistant United States Attorney, Richmond,
Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

              Theresa Crepeau appeals a district court order denying

her motion for a sentence reduction under 18 U.S.C. § 3582(c)

(2006).       We affirm in part and vacate in part and remand with

instructions that the district court consider Crepeau’s motion

as it pertains to Amendment 505 of the Sentencing Guidelines.

              In July 1994, Crepeau was convicted of conspiracy to

distribute      controlled         substances,            distribution     and     possession

with intent to distribute cocaine and cocaine base, making a

premises      available       for     storing        and    distributing        cocaine   and

cocaine base, three counts of money laundering and one count of

using a firearm in relation to a drug trafficking crime.                                   She

was found responsible for 11.021.4 kilograms of crack cocaine

and 144 kilograms of cocaine powder and was assigned a base

offense level of 40 and placed in Criminal History Category II.

The   range     of    imprisonment        for       the    drug   and     money    laundering

convictions was 324 to 405 months’ imprisonment.                                  Crepeau was

sentenced to 360 months’ imprisonment for those convictions and

a consecutive sentence of 60 months for the firearm conviction.

              In March 2008, Crepeau filed a motion for appointment

of    counsel        in    order    to     file       a     motion      under      18   U.S.C.

§ 3582(c)(2) (2006), to take advantage of Amendment 706 to the

Sentencing Guidelines and other relief deemed appropriate.                                The

district      court       construed      Crepeau’s         motion    as    a   motion   under

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§ 3582(c)(2) and instructed the Government to file a response

indicating whether it opposed the motion, and if so, to file a

second    response       citing    the    reasons         for       opposing    the       motion.

Crepeau    was    given       thirty     days      after      the     Government         filed    a

response    to    file    a    reply.       The      Government         filed       a    response

stating    that    under      Amendments           706   and    711,    Crepeau          was    not

entitled    to    relief      because     the       combined        weight     of       the   crack

cocaine and the powder cocaine equaled 102,643.4 kilograms of

marijuana    for     a    base     offense         level       of    thirty-eight.              The

Government noted that because Crepeau was responsible for more

than 4.5 kilograms of crack cocaine, she was not entitled to

relief under Amendments 706 and 711 because the offense level

was not lowered for crack quantities greater than 4.5 kilograms.

The district court agreed with the Government and found that

because Crepeau was responsible for more than 4.5 kilograms of

crack cocaine, she was not entitled to relief under Amendments

706 and 711.

            Crepeau       filed    a     motion          to    reconsider       because         she

argued that according to the district court’s order directing

the Government to respond, she was entitled to file a reply

within    thirty    days      of   the    Government’s              response.           She    also

argued    that     United      States     v.       Booker,      543    U.S.     220       (2005),

applied to her case and the district court should consider anew

the 18 U.S.C. § 3553 (2006) sentencing factors.                                The district

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court    granted          Crepeau’s      motion,        vacated       the   prior     order       and

directed Crepeau to file a reply.                        Crepeau replied, stating that

she was originally sentenced in 1994 to an offense level of

forty.        Crepeau noted the Government erred claiming there was no

change    to        her    offense       level.          Crepeau       further      noted        that

Amendment 505 capped drug quantity offense levels at thirty-

eight    and     it       was   issued       after      she    was    sentenced.           Crepeau

claimed she never received retroactive application of Amendment

505,     which        became       effective            November       1,    1994,         and     is

retroactive.          See U.S. Sentencing Guidelines Manual § 1B1.10(c)

(2008).         Crepeau         noted    that      if    she    was    sentenced      at     level

thirty-eight with a Criminal History Category of II, her range

of imprisonment under the Guidelines would be 262 to 327 months.

Crepeau also argued that Booker made the Guidelines advisory and

she could be sentenced below the range of imprisonment.

               The district court entered a superseding order denying

Crepeau’s motion, finding that because she was responsible for

more than 4.5 kilograms of crack cocaine, she was ineligible for

a sentence reduction.              The court did not address the application

of Amendment 505.

               We     review      the    district        court’s       denial    of    a    motion

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

States v. Goines, 357 F.3d 469, 478 (4th Cir. 2004).                                       A court

abuses    its        discretion         if    it     fails     or     refuses    to       exercise

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discretion,         or    if    it    relies   on     erroneous      legal    or    factual

premises.       James v. Jacobson, 6 F.3d 233, 239 (4th Cir. 1993).

               Insofar as the district court denied Crepeau’s request

for a sentence reduction under Amendments 706 and 711, we find

no abuse of discretion and affirm that part of the district

court       order.        Crepeau’s       claim     that     the    court    should      have

considered a sentence below the Guidelines is without merit.

“[A] district judge is not authorized to reduce a defendant’s

sentence below the amended guideline range.”                          United States v.

Dunphy, __ F.3d __, 2009 WL 19139, *8 (4th Cir. 2009).

               However, we find Crepeau adequately put forth a claim

that she was entitled to a sentence reduction under Amendment

505,    a    claim       not   addressed      by    either   the    Government      or     the

district court.                See Haines v. Kerner, 404 U.S. 519, 520-21

(1972)       (pro        se     pleadings       are     entitled       to     a    liberal

construction); see also Castro v. United States, 540 U.S. 375,

381 (2003) (noting that courts often ignore pro se labels on

pleadings      in    order       to   avoid    an     unnecessary     dismissal       or    an

inappropriately               stringent    application         of     formal       labeling

requirements).

               Because the district court did not consider Crepeau’s

request under § 3582(c) for a sentence reduction as a result of

Amendment 505, we vacate in part the district court’s order and

remand for further proceedings.                     We take no position as to how

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the court should exercise its discretion if it finds Amendment

505 lowered Crepeau’s Guidelines sentencing range.

          Accordingly, we affirm in part and vacate in part and

remand for further proceedings consistent with this opinion.   We

deny Crepeau’s motions to place the case in abeyance pending

Dunphy and for appointment of counsel.     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.

                                                 AFFIRMED IN PART;
                                      VACATED IN PART AND REMANDED




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