                               UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                               No. 10-6532


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

STEVEN D. CARR,

                Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Statesville.      Richard L.
Voorhees, District Judge. (5:98-cr-00246-RLV-2)


Submitted:   August 23, 2010            Decided:   September   20, 2010


Before NIEMEYER and SHEDD, Circuit Judges, and HAMILTON, Senior
Circuit Judge


Vacated and remanded by unpublished per curiam opinion.


Steven D. Carr, Appellant Pro Se.        Douglas Scott Broyles,
Assistant United States Attorney, Charlotte, North Carolina, Amy
Elizabeth Ray, Assistant United States Attorney, Asheville,
North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

             Steven      D.     Carr    appeals      the     district       court’s    order

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

reduction.        For    the     reasons      set    forth    below,     we       vacate   the

district court’s order and remand for further proceedings.

             In 1999, Carr was convicted, following a jury trial,

of conspiracy to possess with intent to distribute cocaine base

(Count 1), two counts of possession with intent to distribute

cocaine    base    and    aiding       and    abetting       (Counts    4     and    5),   and

possession with intent to distribute cocaine base (Count 6).                                In

the presentence report (“PSR”), the probation officer grouped

the four counts pursuant to U.S. Sentencing Guidelines Manual

(“USSG”) § 3D1.2(d) (1998).                  Finding that Carr was responsible

for   more   than     1.5       kilograms     of    cocaine     base,       the     probation

officer assigned a total offense level of thirty-eight pursuant

to USSG § 2D1.1 (1998).                Carr was designated a career offender

pursuant     to   USSG      §    4B1.1,      and    assigned     a    criminal        history

category of VI. The probation officer therefore calculated a

sentencing range of 360 months to life.                          The district court

sentenced Carr to a total of 360 months of imprisonment on each

of the four drug counts, to run concurrently to each other and

consecutively to his state sentences.

             Because     the      amount     of     cocaine    base     attributable        to

Carr had not been alleged in the indictment or submitted to the

                                              2
jury,    this    court   concluded    on       appeal      that   Carr’s       sentence

violated the rule set forth in Apprendi v. New Jersey, 530 U.S.

466 (2000).        We therefore affirmed Carr’s conviction, vacated

his sentence, and remanded for resentencing in light of Apprendi

and the panel decision in United States v. Angle, 230 F.3d 113

(4th    Cir.    2000),   vacated,   254       F.3d   514   (4th    Cir.     2001)    (en

banc).    United States v. Carr, No. 00-4001, 2000 WL 1616978 (4th

Cir. Oct. 30, 2000) (unpublished).

               On remand, Carr objected to the determination of the

drug quantity attributable to him as relevant conduct.                               The

district court found by a preponderance of the evidence that

Carr was responsible for more than 1.5 kilograms of cocaine base

and resentenced him to the minimum of the guideline range, or

360 months.       Specifically, the district court sentenced Carr to

240 months on Count 1; sixty months on each of Counts 4 and 5 to

run concurrently to each other and consecutively to the sentence

imposed    in    Count   1;   and    sixty      months      on    Count    6    to   run

consecutively to the sentence imposed in Count 1.                              See USSG

§ 5G1.2(d); Angle, 254 F.3d at 518 (“In the case of multiple

counts of conviction, the sentencing guidelines instruct that if

the    total    punishment    mandated    by     the    guidelines        exceeds    the

statutory maximum of the most serious offense of conviction, the

district court must impose consecutive terms of imprisonment to

the extent necessary to achieve the total punishment.”).                             We

                                          3
then affirmed Carr’s sentence.              United States v. Carr, 34 F.

App’x 921 (4th Cir. 2002) (No. 01-4740).

          Carr now seeks a reduction of sentence pursuant to 18

U.S.C. § 3582(c) (2006), contending that he is entitled to a

reduction under Amendment 706 of the Guidelines, which lowered

the offense levels for drug offenses involving crack cocaine.

On August 17, 2009, the probation officer prepared a supplement

to the PSR, in which she concluded that Carr was eligible for a

sentence reduction.        The probation officer found that, under

Amendment 706, Carr faced a revised guideline range of 324 to

405 months, based on a revised offense level of thirty-six and a

criminal history category of VI.             She further recommended that

Carr’s sentence be reduced to 324 months on each count, to run

concurrently.

          On February 19, 2010, presumably in light of the fact

that the August 17, 2009 supplement had not taken the Apprendi

remand into account, the probation officer prepared a revised

supplement to the PSR.          In this version, she maintained that

both Carr’s initial and revised guideline ranges were capped at

240   months    pursuant   to    USSG       § 5G1.1   and   the   twenty-year

statutory maximum set forth in 21 U.S.C. § 841(b)(1)(C) (2006).

The probation officer concluded that no reduction was warranted

as Carr’s guideline range had not been lowered by Amendment 706.



                                        4
             That same day, the district court entered an order

denying      Carr’s   motion      for   sentence        reduction.      The    judge

calculated the relevant guideline ranges as follows:

             Previous Offense Level: 38
             Criminal History Category: VI
             Previous Guideline Range: 240 to 240 months

             Amended Offense Level: 37
             Criminal History Category: VI
             Amended Guideline Range: 240 to 240 months

The court concluded that no reduction was warranted “as the

amended sentence in this case was limited to a statutory maximum

of 20 years (240 months) by Apprendi v. New Jersey, which then

became the applicable guideline range, per USSG § 5G1.1(a).                       The

revised guideline range is similarly limited and the guideline

range remains unchanged.”

             Under § 3582(c)(2), the district court may modify the

term of imprisonment “of a defendant who has been sentenced

. . . based on a sentencing range that has subsequently been

lowered,”     if   the     amendment    is     listed    in   the    Guidelines   as

retroactively applicable.           18 U.S.C. § 3582(c)(2); see also USSG

§ 1B1.10, p.s. (2009).             Amendment 706 applies retroactively.

See   USSG    § 1B1.10(c),       p.s.     We    review    the    district     court’s

denial of a motion under § 3582(c)(2) for abuse of discretion.

See United States v. Munn, 595 F.3d 183, 186 (4th Cir. 2010).                       A

court abuses its discretion if it fails or refuses to exercise

discretion,     or    if    it   relies   on    erroneous       legal   or    factual

                                          5
premises.     James v. Jacobson, 6 F.3d 233, 239 (4th Cir. 1993);

see Randall v. Prince George’s County, 302 F.3d 188, 211 (4th

Cir. 2002) (stating that “[a] court . . . abuses its discretion

if it makes a mistake of law”).

            We      conclude    that     the    district     court     abused   its

discretion in denying Carr’s motion for sentence reduction.                     The

district court, relying on the revised supplement to the PSR,

applied     USSG     § 5G1.1(a)    and     concluded      that    Carr’s    initial

guideline range was 240 to 240 months.                    The court apparently

overlooked the fact that this case involved multiple counts of

conviction.        Section 5G1.1(a) applies to “Sentencing on a Single

Count of Conviction,” and states that “[w]here the statutorily

authorized maximum sentence is less than                   the minimum of the

applicable guideline range, the statutorily authorized maximum

sentence shall be the guideline sentence.”                       Because Carr was

sentenced     on     multiple     counts       of   conviction,      his    initial

guideline range was instead governed by USSG § 5G1.2.                      Based on

an offense level of thirty-eight and a criminal history category

of VI, before the application of Amendment 706, Carr faced a

guideline range of 360 months to life.                    Because the statutory

maximum on each individual drug count was 240 months, however,

the   district      court   properly     applied    the    “stacking    rule”   set

forth in USSG § 5G1.2(d) and imposed consecutive sentences in

order to obtain a prison term within the prescribed guideline

                                          6
range.    See United States v. Stokes, 261 F.3d 496, 500-01 (4th

Cir.   2001);   Angle,     254    F.3d    at     518-19.     Rather    than       being

constrained to a statutory maximum sentence of 240 months, the

district court, pursuant to the stacking analysis set forth in

§ 5G1.2, imposed a guideline sentence of 360 months.

           Applying Amendment 706, a defendant responsible for at

least 1.5 kilograms (but less than 4.5 kilograms) of cocaine

base   faces    a   base   offense       level    of   thirty-six.          See    USSG

§§ 1B1.10(b)(1), p.s., 2D1.1(c)(2) (2009).                   The district court

erroneously     concluded,       however,      again   based   on     the    revised

supplement to the PSR, that Carr faced a base offense level of

thirty-seven under the career offender provision set forth in

USSG § 4B1.1(b) (“[I]f the offense level for a career offender

from the table in this subsection is greater than the offense

level otherwise applicable, the offense level from the table in

this subsection shall apply.”).                In the revised supplement, the

probation officer apparently assumed that Carr faced a statutory

maximum term of life, which would have mandated an offense level

of thirty-seven pursuant to USSG § 4B1.1(b)(A).                    Carr, however,

faced a statutory maximum term of twenty years, which yields an

offense   level     of   thirty-two      pursuant      to   USSG   § 4B1.1(b)(C).

Pursuant to § 4B1.1(b), the higher offense level set forth in

§ 2D1.1(c)(2) (2009) applies.



                                          7
            With    an   amended   offense   level       of   thirty-six     and   a

criminal history category of VI, the amended guideline range is

324 to 405 months of imprisonment.                Because Carr’s sentencing

range was clearly lowered by Amendment 706, we conclude that he

is eligible for a sentence reduction pursuant to § 3582(c)(2).

We therefore vacate the district court’s order and remand for

further proceedings, expressing no opinion as to whether the

district    court   should     exercise   its     discretion        to   grant   the

motion.     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




                                      8
