[DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS
                                                                   FILED
                      FOR THE ELEVENTH CIRCUIT   U.S. COURT OF APPEALS
                        ________________________   ELEVENTH CIRCUIT
                                                                APR 29, 2010
                              No. 09-11559                       JOHN LEY
                          Non-Argument Calendar                    CLERK
                        ________________________

                    D. C. Docket No. 98-00085-CR-BAE-4

UNITED STATES OF AMERICA,


                                                                Plaintiff-Appellee,

                                   versus

JOHNNY MACK MOBLEY,

                                                          Defendant-Appellant.


                        ________________________

                 Appeal from the United States District Court
                    for the Southern District of Georgia
                      _________________________

                               (April 29, 2010)

Before EDMONDSON, BIRCH and ANDERSON, Circuit Judges.

PER CURIAM:

     Johnny Mack Mobley, proceeding pro se, appeals the denial of his motion
for a sentence reduction pursuant to 18 U.S.C. § 3582(c)(2). Mobley’s motion was

based on Amendment 706 to the Sentencing Guidelines, which reduced base

offense levels applicable to crack cocaine. On appeal, Mobley argues that the

district court: (1) erred by denying his § 3582(c)(2) motion based on his post-

sentencing conduct; (2) violated United States v. Booker, 

, 

, 

(2005), by considering such conduct, (3) violated his

constitutional double jeopardy rights; and (4) erred by considering his prison

disciplinary reports without allowing him an opportunity to respond.

      We review a district court’s decision not to reduce a defendant’s sentence

pursuant to § 3582(c)(2) for abuse of discretion. United States v. Moreno, 

, 1219 (11th Cir. 2005). An abuse of discretion occurs if a district court

“fails to apply the proper legal standard or to follow proper procedures in making

[its] determination.” Birmingham Steel Corp. v. TVA, 

, 1335 (11th

Cir. 2003).

      In United States v. Jules, - - F.3d - -, 

, at *5 (11th Cir. Feb.

2, 2010), we held that “each party must be given notice of and an opportunity to

contest new information relied on by the district court in a § 3582(c)(2)

proceeding.” In that case, the district court relied on a memorandum from the

Probation Office containing information on Jules’s prison conduct in denying his §



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3582(c)(2) motion. 

In this case, the district court relied on Mobley’s

prison conduct record in denying Mobley’s § 3582(c)(2) motion; however, the

record does not demonstrate that Mobley was given notice or an opportunity to

contest the information contained within that record. Thus, the district court

abused its discretion by not affording Mobley this opportunity. On remand,

Mobley must be given an opportunity to contest the information contained in his

prison conduct record. The district court is not required to grant Mobley a hearing

to contest this information; allowing him to contest it in writing is sufficient. 

      We reject Mobley’s additional allegations of error.

      AFFIRMED, in part; VACATED, in part; AND REMANDED .




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