                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 08-7630


UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

             v.

MAURICE EDGAR MCKENZIE, a/k/a Cappo,        a/k/a    Cappa,   a/k/a
Richard Knight, a/k/a Emanuel Askew,

                  Defendant - Appellant.



Appeal from the United States District Court for the District of
South Carolina, at Beaufort.    Sol Blatt, Jr., Senior District
Judge. (9:97-cr-00032-SB-1)


Submitted:    February 5, 2009              Decided:    March 18, 2009


Before MICHAEL, KING, and DUNCAN, Circuit Judges.


Vacated and remanded by unpublished per curiam opinion.


Maurice Edgar McKenzie, Appellant Pro Se. Robert                 Hayden
Bickerton, Peter Thomas Phillips, Assistant United               States
Attorneys, Charleston, South Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Maurice       Edgar    McKenzie          appeals     from     the     district

court’s order granting in part his 18 U.S.C. § 3582(c) (2006)

motion    for    reduction   of    sentence      based      on      the   crack      cocaine

amendments to the Sentencing Guidelines.                         On appeal, McKenzie

asserts    that    the    district     court     failed        to   conduct      a   proper

analysis    of    his    motion.       Because       the   district       court’s      order

contains insufficient reasoning to permit appellate review, we

vacate and remand.

            At     sentencing,         McKenzie’s          Guidelines          range    was

calculated to be 262 to 327 months in prison.                              The district

court sentenced him to 327 months imprisonment.                           In June 2008,

McKenzie, through appointed counsel, filed the instant motion to

reduce his sentence.          McKenzie stated that application of the

amendments would lower his Guidelines range to 210-262 months in

prison.     McKenzie requested a sentence of 210 months, and the

Government consented.

            The district court did not hold a hearing.                            Instead,

the court granted the motion in part and entered a sentence of

262 months.       The order contained no reasoning or explanation.

The court merely stated that the “defendant is subject to a

reduced    sentencing      range   .    .   .    .      Therefore,        it    is    hereby

ORDERED that the previously imposed sentence of 327 months is

reduced to 262 months.”

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               We review the district court’s decision to modify a

sentence    under      an   abuse    of    discretion     standard.         See    United

States    v.    Legree,      205    F.3d    724,    727   (4th     Cir.     2000).     In

deciding whether to grant a motion to reduce sentence based upon

a Guideline amendment, the district court must “consider[] the

factors set forth in [18 U.S.C.] section 3553(a) [(2006)] to the

extent    that    they      are    applicable”      and   must     determine      whether

“reduction       is    consistent         with   applicable        policy    statements

issued by the Sentencing Commission.”                     18 U.S.C. § 3582(c)(2).

A district court need not engage in a “ritualistic incantation”

in order to establish its consideration of the motion.                         Instead,

it is presumed that the court considered the § 3553 factors, as

well as the issues presented for determination, when issuing its

ruling.     Legree, 205 F.3d at 728-29.

               We find that the circumstances of the instant case

overcome the presumption that the court properly considered the

statutory factors and other issues relevant to the motion, and

we conclude that, under the specific facts of this case, the

district court’s failure to provide reasoning was an abuse of

discretion.           First,      unlike    in     Legree,    in    this     case,    the

Government       agreed      to     the     sentencing       reduction       sought    by

McKenzie.       The parties jointly recommended a sentence over five

years shorter than the one McKenzie received.                      The court did not

hold a hearing and gave no reasons for granting the motion in

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part,     but    rejecting      the      parties’         recommendation        of    the

appropriate      sentence.       While      the    parties’    agreement        was   not

binding on the district court, the court’s reasons for rejecting

the agreement are simply absent.

              Second, the motion in Legree was denied; here, the

motion was granted in part.              One could logically conclude from

the decision in Legree that the reasons underlying the original

sentence remained the district court’s reasoning.                      See 205 F.3d

at 729.       Here, however, the court clearly determined that the

§ 3553 factors merited a partial reduction in sentence; however,

the court provided no insight into its thought process as to the

appropriate reduction.           Any determination by this court as to

the   basis     of   the   district    court’s          decision   would   be    purely

speculative.

              Finally, while in both Legree and the instant case,

the judge presiding over the § 3582 motion was the same judge as

at the original sentence, the elapsed time in this case was

significantly        longer.     In    Legree,      the    time    between   the      two

events was approximately three years, see id. at 721-27, while

in this case over nine years elapsed between sentencing and the

§ 3582    motion.          It   is    not       clear    whether    the    judge,      in

considering McKenzie’s § 3582 motion, recalled factors presented

at the original sentencing.             The original sentencing transcript

is not included in the record on appeal, so it is also unclear

                                            4
whether the court was even able to review it or how thoroughly

McKenzie’s background was initially examined.

           Accordingly, we vacate the district court’s order and

remand   the   case   for   the   district   court    to   provide   adequate

reasoning for its decision.        We express no opinion on the length

of an appropriate sentence.        We decline to address the merits of

McKenzie’s remaining claims on appeal.               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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