                             UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                             No. 09-6672


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

GREGORY FLETCHER,

                Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Bryson City. Lacy H. Thornburg,
District Judge. (2:04-cr-00093-LHT-DLH-4)


Submitted:   June 30, 2010                  Decided:   July 19, 2010


Before NIEMEYER, DUNCAN, and DAVIS, Circuit Judges.


Vacated and remanded by unpublished per curiam opinion.


Gregory Fletcher, Appellant Pro Se. Amy Elizabeth Ray, Assistant
United States Attorney, Jill Westmoreland Rose, OFFICE OF THE
UNITED STATES ATTORNEY, Asheville, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Gregory        Fletcher    appeals      the   district       court’s       order

denying his 18 U.S.C. § 3582(c) (2006) motion for a sentence

reduction.       We vacate the district court’s order and remand.

            At Fletcher’s original sentencing for possession with

intent to distribute fifty grams or more of cocaine base, his

advisory guidelines range was 121 to 151 months of imprisonment,

and Fletcher was subject to a statutory mandatory minimum term

of 120 months of imprisonment.                  See 21 U.S.C.A. § 841(b)(1)(A)

(2006 & West Supp. 2009).              The Government, however, moved for a

downward departure below the statutory mandatory minimum based

on substantial assistance pursuant to 18 U.S.C. § 3553(e) (2006)

and U.S. Sentencing Guidelines Manual (“USSG”) § 5K1.1 (2009).

Based on the Government’s motion, the district court sentenced

Fletcher to 100 months of imprisonment.

            Fletcher        thereafter      filed    a    motion       pursuant    to     18

U.S.C.    § 3582(c)(2),           seeking   a     sentence   reduction         based     on

Amendment       706   to    the    guidelines,      which    lowered       the    offense

levels    for    drug      offenses    involving     cocaine       base.         See    USSG

§ 2D1.1(c); USSG App. C Amends. 706, 711, 715.                            The district

court    correctly      concluded      that     Fletcher’s       amended      guidelines

range was 120 to 125 months of imprisonment.                           The court also

concluded,       however,     that    it    did    not    have    the    authority       to

further    reduce       Fletcher’s     sentence      because      of    the    statutory

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mandatory minimum of 120 months of imprisonment.                        In an appeal

decided after the district court denied Fletcher’s motion, we

concluded    in    a    case    with    similar    facts       that      a     defendant

originally sentenced below the statutory mandatory minimum on

account     of    substantial        assistance    was     not     precluded          from

receiving discretionary relief pursuant to Amendment 706.                              See

United States v. Fennell, 592 F.3d 506 (4th Cir. 2010).

            Accordingly,        in    light   of   Fennell,        we        vacate     the

district court’s order and remand for further proceedings.                               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.



                                                           VACATED AND REMANDED




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