Case: 15-10691       Document: 00513376671         Page: 1     Date Filed: 02/11/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                     No. 15-10691
                                   Summary Calendar
                                                                          United States Court of Appeals
                                                                                   Fifth Circuit

                                                                                 FILED
                                                                          February 11, 2016
UNITED STATES OF AMERICA,
                                                                            Lyle W. Cayce
                                                                                 Clerk
                                                  Plaintiff - Appellee

v.

KENNETH A. JONES,

                                                  Defendant - Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:94-CR-147-1


Before BARKSDALE, CLEMENT, and ELROD, Circuit Judges.
PER CURIAM: *
       Proceeding pro se, Kenneth A. Jones, federal prisoner # 26216-077,
challenges the denial of his motion for a reduction of his sentence, pursuant to
18 U.S.C. § 3582(c)(2).          In 1994, Jones was sentenced to 310 months’
imprisonment after pleading guilty to conspiracy to possess, with intent to
distribute, one kilogram or more of methamphetamine, in violation of 21 U.S.C.
§§ 841 and 846.


       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.
R. 47.5.4.
    Case: 15-10691    Document: 00513376671      Page: 2   Date Filed: 02/11/2016


                                 No. 15-10691

      Jones asserts the district court erred in determining Amendment 782 to
the advisory Sentencing Guidelines did not have the effect of lowering his
Guidelines advisory sentencing range. He contends that proper calculation of
his base-offense level and sentencing range under the amended Guidelines
could result in his sentence’s being reduced to time served.
      The denial of a motion for reduction of a sentence pursuant to § 3582(c)(2)
is reviewed for abuse of discretion. E.g., United States v. Evans, 

,
672 (5th Cir. 2009). Amendment 782 revised the Guidelines applicable to drug-
trafficking offenses by changing the base-offense levels in § 2D1.1. See
U.S.S.G., Supp. to Appendix C, Amendment 782, Reason for Amendment. But,
sentencing “reductions under . . . § 3582(c)(2) are not mandatory . . . [and]
merely give[ ] the district court discretion to reduce a sentence under limited
circumstances”. United States v. Doublin, 

, 238 (5th Cir. 2009).
If the court gave due consideration to the § 3582(c)(2) motion and the 18 U.S.C.
§ 3553(a) factors, there is no abuse of discretion.        See United States v.
Whitebird, 

, 1010 (5th Cir. 1995).
      In denying Jones’ motion, the court determined he was not eligible for a
sentence modification because application of the Amendment would result in
the same sentencing range as used for his original sentence: a base-offense
level of 35, and resulting range of 292–365 months. A review of the following
demonstrates Amendment 782 lowered Jones’ base-offense level, and
ultimately his sentencing range:      his Pre-sentence Investigation Report,
prepared at the time of initial sentencing; the 17 June 2015 post-motion-for-
reduction report prepared for the district court by the United States Probation
Office; and the amended Guideline. Pursuant to the Amendment, Jones’ base-
offense level decreased to 32 (the level assigned to offenses involving at least
one and a half kilograms, but less than five kilograms, of methamphetamine).



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    Case: 15-10691    Document: 00513376671      Page: 3   Date Filed: 02/11/2016


                                 No. 15-10691

See § 2D1.1(c)(4). Therefore, based on adjustments made to Jones’ original
base-offense level (two-point enhancement for use of a firearm, and three-point
reduction for acceptance of responsibility), his total offense level became 31,
with a corresponding sentencing range of 188–235 months.
      Accordingly, the court erred in determining Amendment 782 did not
lower Jones’ sentencing range. In denying the motion, the court relied solely
on its calculation of the offense level, and, therefore, did not consider whether
the modification was warranted under the § 3553(a) factors, or the nature and
seriousness of the danger to the community that may be posed by a reduction
in the sentence. See United States v. Larry, 

, 937 (5th Cir. 2011).
Accordingly, the court abused its discretion in denying the motion. See 

denying the motion to reduce Jones’ sentence pursuant to
§ 3582(c)(2) is VACATED, and this matter is REMANDED for the court’s
reconsideration of the proper calculation of the Guidelines sentencing range in
the light of Amendment 782, and also to determine whether the reduction is
warranted in the light of the relevant sentencing factors.        See 18 U.S.C
§ 3582(c); U.S.S.G. § 1B1.10, comment. (n.1(B)(i)-(ii)).
      VACATED and REMANDED.




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