                             UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                             No. 12-7553


UNITED STATES OF AMERICA,

                 Plaintiff – Appellee,

          v.

DEJUAN WALKER,

                 Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte.   Frank D. Whitney,
District Judge. (3:05-cr-00097-FDW-2)


Submitted:   December 21, 2012             Decided:   December 31, 2012


Before KEENAN, WYNN, and THACKER, Circuit Judges.


Vacated and remanded by unpublished per curiam opinion.


Dejuan Walker, Appellant Pro Se. Jennifer Lynn Dillon, Amy
Elizabeth Ray, Assistant United States Attorneys, Craig Darren
Randall, C. Nicks Williams, OFFICE OF THE UNITED STATES
ATTORNEY, Charlotte, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

               Dejuan     Walker         appeals            the       district         court’s        order

denying    his     18     U.S.C.         §        3582(c)(2)           (2006)          motion    seeking

reduction of his sentence pursuant to Amendment 750.                                          This court

reviews    the    denial        of       a    §    3582(c)(2)               motion      for     abuse      of

discretion.       United States v. Munn, 595 F.3d 183, 186 (4th Cir.

2010).     “A district court abuses its discretion if it fails

adequately to take into account judicially recognized factors

constraining       its    exercise,               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).

               Pursuant    to        §       3582(c)(2),              the    district         court     may

modify the term of imprisonment “of a defendant who has been

sentenced to a term of imprisonment based on a sentencing range

that     has     subsequently                been          lowered          by     the        Sentencing

Commission,”       if     the        Guidelines                 amendment         is     retroactively

applicable, as is Amendment 750.                                18 U.S.C. § 3582(c)(2); U.S.

Sentencing       Guidelines          Manual            § 1B1.10(c)            (2012).            As     the

district       court    correctly            observed,            Walker         was    subject       to   a

statutorily-mandated minimum term of imprisonment, even though

the Government’s USSG § 5K1.1 motion for a downward departure

resulted in an ultimate sentence below the mandatory minimum.

See 18 U.S.C. § 3553(e) (2006).                            However, it is unclear whether

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the statutory minimum should have been twenty years, as noted in

the court’s order.        Walker’s plea agreement included a provision

that if he complied with the requirements of the plea agreement,

the Government would withdraw the § 851 Notice, reducing the

statutory minimum to ten years.                  The only discussion of the

potential withdrawal of the notice that is in the record on

appeal was in the original Presentence Report (PSR), where it

was noted that the Guidelines range would not change if the

§ 851 information was removed.                 It appears from the district

court’s      decisions     at     resentencing          in     2010     and     on    the

§ 3582(c)(2) motion, which both specify that Walker was subject

to a twenty-year mandatory minimum, that the probation office

and the district court concluded that the § 851 Notice was still

applicable.       While    the    district      court    has    the   discretion       to

refuse to further reduce Walker’s sentence, the court’s decision

may not be based on an error in law.                     See DIRECTV, Inc., 523

F.3d at 323.      Under the terms of the plea agreement, it appears

that   the    § 851   Notice       should     have      been    withdrawn       by    the

Government if Walker complied with the terms of the agreement.

Nothing   currently       in    the   record     indicates       that    he    did    not

comply.   However, the record on appeal is not complete.

             We   therefore      vacate   the    district       court’s       order   and

remand to the district court to determine whether, under the

terms of the plea agreement, the § 851 Notice should have been

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withdrawn      by    the    Government.         And,    if   it    should     have       been

removed, then the district court may consider the § 3582(c)(2)

motion    in    light      of   the   changes    wrought     by    Dorsey     v.    United

States,     132      S.     Ct.   2321,    2335        (2012)      (holding        FSA    is

retroactively applicable to defendant who committed his offenses

prior to August 3, 2010, but was sentenced after that date) and

the FSA.         We do not express an opinion on whether Walker’s

sentence should ultimately be reduced.

               We dispense with oral argument because the facts and

legal    contentions        are   adequately      presented        in   the   materials

before    this      court   and   argument      would    not      aid   the   decisional

process.

                                                                VACATED AND REMANDED




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