                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 09-6041


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

GILBERT KING, a/k/a Jimmy,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond.    Robert E. Payne, Senior
District Judge. (3:97-cr-00352-REP-3)


Submitted:   April 15, 2010                 Decided:   June 16, 2010


Before NIEMEYER, MOTZ, and SHEDD, Circuit Judges.


Vacated and remanded by unpublished per curiam opinion.


Amy Leigh Austin, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Richmond, Virginia, for  Appellant. Stephen Wiley  Miller,
Assistant United States Attorney, Richmond, Virginia, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Gilbert King appeals from the denial of his 18 U.S.C.

§ 3582 (2006) motion for reduction of sentence.                     At his original

sentencing,   King       was    found    responsible    for    in    excess   of   1.5

kilograms    of     crack      cocaine.        In   response   to    King’s   § 3582

motion, the Government filed a response, arguing that King was

ineligible    for    relief      because    the     presentence     report    (“PSR”)

established       that    King     was    responsible     for       more   than    4.5

kilograms of cocaine base.               As such, the Guidelines range would

be unchanged. 1      Without conducting a hearing, the district court

denied the motion, stating that, after consideration of King’s

     Motion for Reduction of Sentence [], the response
     thereto, the record, the presentence report, the
     Cocaine Base Amendment Application Worksheet prepared
     by the Probation Office and all other applicable
     requirements of law, it is hereby ORDERED that the
     defendant’s 18 U.S.C. § 3582 Motion for Reduction of
     Sentence [] is denied because the defendant’s original
     sentence, as reduced previously, 2 is appropriate and,
     in any event, the defendant is not eligible for
     sentence reduction on account of the quantity of drugs
     involved in his conviction.

     1
        The 1997 edition of the Guidelines Manual, used to
calculate King’s sentencing range, assigned level 38 to offenses
involving 1.5 kilograms or more of cocaine base.            U.S.
Sentencing Guidelines Manual § 2D1.1(c)(1) (1997). In contrast,
the 2009 edition assigns level 38 to offenses involving 4.5
kilograms or more of cocaine base, and level 36 to offenses
involving more than 1.5 kilograms but less than 4.5 kilograms of
cocaine base. USSG § 2D1.1(c)(1), (2) (2009).
     2
       King’s sentence was previously reduced under Fed. R. Crim.
P. 35(b), based upon his cooperation with the Government.



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King timely appealed.

              On appeal, King asserts that the sentencing court only

found him responsible for “in excess of 1.5 kilograms” of crack

cocaine and that to hold him responsible for a larger amount is

unfair, given that he had no reason or opportunity to contest

such an amount.          We find that the record in this case is too

sparse to support a finding that the sentencing court concluded

that King was responsible for more than 4.5 kilograms of crack

cocaine.      First, the PSR describes a conspiracy responsible for

a   large     amount   of    crack    cocaine;     however       the    PSR     makes   no

specific findings as to whether King was responsible for the

entire amount discussed.              In fact, the PSR notes that “King’s

role    was     not    as    well     defined      as     that     of     [the      other

conspirators].”          Second, the PSR describes amounts of powder

cocaine but does not specifically calculate the corresponding

amount of crack cocaine.             Finally, because King did not appeal

his    conviction,     his       sentencing     hearing   was     not     transcribed.

Thus, it is not known whether King objected or what specific

findings the sentencing court made.                  Accordingly, we conclude

that a denial of the motion to reduce sentence based upon the

drug    amount     was      an    abuse    of     discretion,          absent     further

proceedings or an expanded record.                See United States v. Moore,

582    F.3d    641,    644-45       (6th   Cir.     2009)    (finding           abuse   of

discretion in § 3582 proceeding where district court did not

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consider      objection      to   drug     amount    and     PSR    did     not    mandate

conclusion that defendant was responsible for over 4.5 kilograms

of crack cocaine).

               The    district     court    additionally          found     that       King’s

“original           sentence,       as     reduced          previously”            remained

“appropriate.”         While the district court may indeed be correct,

the       court’s    conclusory     reasoning       does    not     permit     appellate

review.       It is unclear whether the court was under the mistaken

impression that King’s prior Rule 35 reduction barred or legally

weighed      against    a    further     reduction.         See    United     States       v.

Stewart,       595    F.3d   197,    202    (4th     Cir.    2010)     (holding         that

district court may further reduce a sentence under § 3582, even

if the sentence is already below the amended Guidelines range as

a result of a Fed. R. Crim. P. 35 reduction).                             It is further

unknown whether the district court’s erroneous decision on the

drug amount issue impacted its determination that King’s prior

sentence remained appropriate.              Any determination as to what the

court’s       alternate      ruling      was    based       upon     would        be     mere

conjecture.

               Accordingly, we vacate the district court’s order and

remand for further proceedings consistent with this opinion.                              We

express no opinion as to the appropriateness or permissibility

of    a    § 3582    sentence     reduction.        We   deny      King’s    motion       for

appointment of counsel.             We dispense with oral argument because

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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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