                                                            [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS
                                                                     FILED
                       FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                         ________________________ ELEVENTH CIRCUIT
                                                               July 20, 2009
                               No. 09-11580                  THOMAS K. KAHN
                           Non-Argument Calendar                  CLERK
                         ________________________

                     D. C. Docket No. 95-00605-CR-PAS

UNITED STATES OF AMERICA,


                                                                 Plaintiff-Appellee,

                                    versus

JESUS MOREJON,
a.k.a. J,

                                                            Defendant-Appellant.


                         ________________________

                  Appeal from the United States District Court
                      for the Southern District of Florida
                        _________________________

                                (July 20, 2009)

Before BIRCH, CARNES and HULL, Circuit Judges.

PER CURIAM:

     Jesus Morejon appeals the district court’s judgment denying his motion for a
sentence reduction under 18 U.S.C. § 3582(c)(2) and Amendment 706.

      At Morejon’s § 3582 proceeding, the district court found that he had been

held responsible at his original sentencing for more than 4.5 kilograms of crack

cocaine. Therefore, the court reasoned that Amendment 706 did not reduce

Morejon’s offense level and that it had no authority to reduce Morejon’s sentence

under § 3582. See United States v. Jones, 548 F.3d 1366, 1369 (11th Cir. 2008)

(“[A] base offense level of 38 still applies to defendants responsible for 4.5

kilograms or more”).

      Morejon contends that the district court clearly erred. Morejon points out

that the original sentencing court found him accountable for only 2 kilograms of

crack cocaine. He argues that the law of the case doctrine dictates that in his §

3582 proceedings the court must use that same 2-kilogram amount to determine his

eligibility for a sentence reduction.

      While this appeal was pending, Morejon also filed an Ellsworth motion in

the district court. See United States v. Ellsworth, 814 F.2d 613 (11th Cir. 1987).

The Ellsworth motion asked the district court to reconsider its drug quantity

finding and certify to us that if given the chance, it intended to grant him a

sentence reduction under § 3582.

      The district court denied the Ellsworth motion. The court first conceded that



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it had erred in attributing more than 4.5 kilograms of crack to Morejon, and

admitted that it should have followed the law of the case, which dictated that he

was responsible for 2 kilograms. Accordingly, the district court acknowledged that

Morejon was eligible for a sentence reduction under § 3582. However, it refused

to certify its intent to grant such a reduction because Morejon had behaved badly

while in prison. In sum, the district court admitted that Morejon was eligible for a

reduction but also stated that it would not, in the use of its discretion, grant him

one.

       In light of all of this, we VACATE the district court’s judgment that

Morejon is not eligible for a § 3582 sentence reduction. We REMAND the case to

the district court so that it may exercise its discretion to formally decide whether

Morejon actually merits a reduction. See 18 U.S.C. § 3582(c)(2) (“[T]he court

may reduce the term of imprisonment, after considering the factors set forth in

section 3553(a) to the extent that they are applicable, if such a reduction is

consistent with applicable policy statements . . .”) (emphasis added). Should the

district court deny Morejon a reduction, as it has indicated that it will, this

procedure will allow him to appeal that new judgment to us. We do not mean to

imply that it would be an abuse of discretion for the district court to deny Morejon

a sentence reduction on the grounds stated in its order denying his Ellsworth



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motion.

     VACATED AND REMANDED.




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