United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 16-1346
                        ___________________________

                             United States of America

                        lllllllllllllllllllll Plaintiff - Appellee

                                           v.

                                Tyler Michael White

                      lllllllllllllllllllll Defendant - Appellant
                                      ____________

                    Appeal from United States District Court
                   for the District of North Dakota - Bismarck
                                  ____________

                          Submitted: December 12, 2016
                              Filed: April 21, 2017
                                 [Unpublished]
                                 ____________

Before LOKEN, MURPHY, and KELLY, Circuit Judges.
                          ____________

PER CURIAM.

       On April 22, 2013, Tyler Michael White pleaded guilty to kidnapping in
violation of 18 U.S.C. §§ 2 and 1201(a)(1) and conspiracy to distribute and possess
with intent to distribute methamphetamine in violation of 21 U.S.C. §§ 846 and
841(b)(1)(C). The PSR found White had a criminal history category of I and a total
offense level of 38 for an advisory Guidelines range of 235 to 293 months. The
district court sentenced White on October 25, 2013. After consulting the advisory
Guidelines range, the district court granted the government’s motion for a downward
departure under USSG § 5K1.1 and sentenced White to 165 months’ imprisonment
followed by five years of supervised release.

       In 2014, the United States Sentencing Commission adopted Amendment 782
which retroactively reduced the base offense level for a number of drug crimes by two
levels. See USSG supp. app. C, amend. 782 (2014). On January 11, 2016, White
moved for a reduction of his sentence under 18 U.S.C. § 3582(c)(2), arguing that after
applying the two-level reduction authorized by Amendment 782 and the multiple
count adjustment rules, his total offense level is reduced to 37, resulting in an
amended advisory Guidelines range of 210 to 262 months. Because White’s original
sentence was approximately 30 percent below the original Guidelines range, he
requested a reduction comparably below the amended range, namely, 147 months.
The government opposed. It “agree[d] that the defendant is eligible for a sentencing
reduction pursuant to the Amendment,” but did not adopt or dispute White’s
calculation of his amended range. It then argued that a reduction was not warranted
based on the severity of his offense conduct and the factors in 18 U.S.C. § 3553(a).

       On January 26, 2016, the district court denied White’s motion for a sentence
reduction. First, it recited the procedural history of White’s case and summarized the
parties’ arguments as described above. Then, it concluded that “[i]n the broad
exercise of its discretion, and after giving careful consideration to all of the
sentencing factors outlined in 18 U.S.C. § 3553(a), the Court finds that a further
sentence reduction is neither warranted nor appropriate in this violent and disturbing
case.”

      On appeal, White argues that the district court erred in failing to determine
whether and to what extent Amendment 782 reduced his Guidelines range. He also
argues that the district court abused its discretion in refusing to grant him a reduction.

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In response, the government argues that the district court committed no procedural
error and did not abuse its discretion in denying the reduction. It does not argue
harmless error.

       At the time of its decision on White’s motion for a sentence reduction, the
district court did not have the benefit of our decision in United States v. Reyes, — F.
App’x —, 

(8th Cir. 2016) (per curiam). There, we reaffirmed that
“a district court considering a reduction under § 3582(c)(2) is required to follow a
two-step approach,” the first of which requires a determination of “whether a
defendant is eligible for a sentence modification and the extent of the reduction
authorized under § 3582.” 

(quoting United States v. Winston, 

,
922 (8th Cir. 2010)). In Reyes, we held that even if the district court arguably
satisfied its duty to determine that Reyes was eligible for a sentence reduction, it
“never determined how Amendment 782 would have affected Reyes’s guidelines
range, as required.” 

the denial of Reyes’ motion seeking a reduction
under Amendment 782 and remanded for reconsideration, concluding that “the
district court cannot skip over mandatory procedural requirements when deciding a
§ 3582(c)(2) motion, even where the final outcome might have been unchanged.” 

found we could not conclude the procedural error was harmless in part
because the government did not argue harmless error. 

        Given this intervening decision, which was not available to the district court
or the parties on appeal, we reverse and remand for reconsideration of White’s motion
for a reduction of sentence in light of Reyes. As in Reyes, “[w]e recognize that the
district court may well have been aware of the amended guidelines range, and simply
felt it unnecessary to state what it believed to be the obvious.” 

we
cannot determine on this record whether White was “sentenced under an incorrect
Guidelines range,” we must remand, as such an “error itself can, and most often will,
be sufficient to show a reasonable probability of a different outcome absent the
error.” Molina-Martinez v. United States, 

, 1345 (2016). Under these

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circumstances, we decline to exercise our discretion to address whether the error was
harmless, and we conclude that remanding for an express finding of the applicable
amended Guidelines range is appropriate. See United States v. Cacioppo, 

, 1025–26 (8th Cir. 2006) (where the government fails to argue that an error was
harmless, it generally “waives any right to such review;” in certain circumstances, we
have the discretion to “overlook the waiver . . . although we will ‘err on the side of
the criminal defendant’” when we conduct a harmlessness analysis on our own
initiative (quoting Lufkins v. Leapley, 

, 1481 (8th Cir. 1992))).

LOKEN, Circuit Judge, dissenting.
                    ______________________________




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