US v. Frank Demetric Dickerson, Jr.

Filing

UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--granting Motion to proceed under CJA [999772666-2] Originating case number: 1:97-cr-00410-JFM-1 Copies to all parties and the district court/agency. [999942046]. Mailed to: Frank Demetric Dickerson Jr.. [16-6122]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 16-6122

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
FRANK DEMETRIC DICKERSON, JR., a/k/a Frankie Dixon, a/k/a
Frankie D.,
Defendant - Appellant.

Appeal from the United States District Court for the District of
Maryland, at Baltimore.
J. Frederick Motz, Senior District
Judge. (1:97-cr-00410-JFM-1)

Submitted:

September 9, 2016

Decided:

October 5, 2016

Before GREGORY, Chief Judge, and NIEMEYER and THACKER, Circuit
Judges.

Vacated and remanded by unpublished per curiam opinion.

Frank Demetric Dickerson, Jr., Appellant Pro Se.
Debra Lynn
Dwyer, Assistant United States Attorney, Baltimore, Maryland,
for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Frank Demetric Dickerson, Jr., appeals the district court’s
order denying his 18 U.S.C. § 3582(c)(2) (2012) motion to reduce
his sentence based on amendments to the Sentencing Guidelines
following his convictions for conspiracy to distribute cocaine
and cocaine base and possession with intent to distribute 500
grams or more of cocaine, in violation of 21 U.S.C. §§ 841(a),
846 (2012).

We vacate the district court’s order and remand for

further proceedings.
We review for abuse of discretion a district court’s order
denying a § 3582(c)(2) motion.
301, 304 (4th Cir. 2013).
like

the

quantity

of

United States v. Mann, 709 F.3d

“We review factual determinations,

drugs

attributable

to

a

defendant

for

sentencing purposes, for clear error,” and we give “substantial
deference
judgment.”

to

a

district

court’s

Id. at 304, 305.

interpretation

of

its

own

A court abuses its discretion

“when it acts arbitrarily or irrationally, fails to consider
judicially

recognized

factors

constraining

its

exercise

of

discretion, relies on erroneous factual or legal premises, or
commits an error of law.”

United States v. Briley, 770 F.3d

267, 276 (4th Cir. 2014) (internal quotation marks omitted),
cert. denied, 135 S. Ct. 1844 (2015).
A criminal defendant is not entitled to a reduction of his
sentence based on a retroactive Sentencing Guidelines amendment
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as a matter of right; rather, the district court may only modify
the term of imprisonment “of a defendant who has been sentenced
. . . based on a sentencing range that has subsequently been
lowered . . . if such a reduction is consistent with applicable
policy

statements

issued

U.S.C. § 3582(c)(2).
the

effect

range.”
p.s.

of

U.S.

(2015).

by

Sentencing

Commission.”

18

In other words, the amendment must “have

lowering

the

Sentencing
Even

the

if

defendant’s

Guidelines

the

applicable

Manual

district

court

guideline

§ 1B1.10(a)(2)(B),
finds

a

defendant

eligible for a reduction, the court must determine whether, in
its discretion, any part or all of that reduction is warranted.
Dillon v. United States, 560 U.S. 817, 827 (2010).

In this

case, the district court briefly stated that “it appear[s] that
Dickerson is not eligible for a sentence reduction.”
On

appeal,

Dickerson

asserts

that

he

is

eligible

for

a

sentence reduction under Amendment 782 to the Guidelines, which
reduced by two levels the drug table for most drug offenders.
USSG app. C supp., amend. 782 (2014); see USSG § 1B1.10(d), p.s.
(2015)

(applying

Amendment

782

retroactively).

Dickerson’s

presentence report attributed to him 551 kilograms of cocaine
powder and recommended a base offense level of 38.

According to

undisputed

provided

portions

of

the

sentencing

transcript

by

Dickerson both in the district court and on appeal, however, the
sentencing court found by a preponderance of the evidence that
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150 kilograms or more of powder cocaine were attributable to
Dickerson.

Under

the

Guidelines

in

effect

at

the

time

of

Dickerson’s sentence, 150 kilograms or more of cocaine was the
threshold amount for a base offense level of 38; however, under
Amendment 782 and the amended Guidelines, such a drug weight
qualifies

for

a

§ 2D1.1(c)(1)
Maintaining

base

(2000),
all

other

offense

level

with

USSG

Guidelines

of

36.

Compare

§ 2D1.1(c)(2)

adjustments

as

USSG

(2015).
originally

applied, Amendment 782 has the effect of lowering Dickerson’s
applicable Guidelines range.
By our calculation, the district court erred in finding
Dickerson ineligible for a reduction.

Therefore, the court’s

reliance on a factual error in denying relief constitutes an
abuse of discretion.
Accordingly, we grant leave to proceed in forma pauperis,
vacate

the

proceedings.

district

court’s

order,

and

remand

for

further

We dispense with oral argument because the facts

and legal contentions are adequately presented in the materials
before

this

court

and

argument

would

not

aid

the

decisional

process.
VACATED AND REMANDED

4