                  Case: 12-10223     Date Filed: 08/24/2012       Page: 1 of 2

                                                                   [DO NOT PUBLISH]



                   IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT

                               ________________________

                                     No. 12-10223
                               ________________________

                        D.C. Docket No. 9:06-cr-80081-DTKH-3


UNITED STATES OF AMERICA,

                                                                   Plaintiff–Appellee,

                                            versus

KELVIN FERGUSON,

                                                                   Defendant–Appellant.

                             ________________________

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

                                     (August 24, 2012)

Before BARKETT and PRYOR, Circuit Judges, and LAWSON,* District Judge.

PER CURIAM:



* Honorable Hugh Lawson, United States District Judge for the Middle District of Georgia, sitting
by designation.
                Case: 12-10223        Date Filed: 08/24/2012       Page: 2 of 2

       Kelvin Ferguson appeals from the denial of his motion to modify his sentence

pursuant to 18 U.S.C. § 3582(c)(2) based on Amendment 750 to the Sentencing

Guidelines, which lowered the base offense level for certain crack cocaine offenses

to conform the guidelines to the Fair Sentencing Act of 2010, Pub.L. No. 111–220,

124 Stat. 2372. The government now recognizes that Ferguson is eligible for relief

under § 3582(c)(2). The government acknowledges that as a result of the

application of Amendment 750, Ferguson’s offense level should be a 34 resulting in

a guidelines range of 262 to 327 months’ imprisonment, which is lower than his

current sentence, which is based on an offense level of 35, with a corresponding

guidelines range of 292 to 365 months’ imprisonment.1

       Accordingly, we hereby vacate the district court’s order and remand for

resentencing.

       VACATED and REMANDED FOR RESENTENCING.




1
  We also note that, as it did at Ferguson’s original and prior resentencing, the government
acknowledges that Ferguson also is eligible, pursuant to U.S.S.G. § 1B1.10(b)(2)(B), for a
proportional reduction below the applicable guidelines range based on his substantial assistance.
                                                  2
