United States v. Moorning (McPherson)

435 F. App'x 17

• Court: Court of Appeals for the Second Circuit
• Decided: June 17, 2011
• Docket: 09-0042-cr
• Status: Unpublished

Opinion

SUMMARY ORDER

We assume the parties’ familiarity with the facts, procedural history, and the issues on appeal. The district court denied McPherson’s section 3582(c)(2) motion without the benefit of our decision in United States v. McGee, 553 F.3d 225 (2d Cir.2009) (per curiam), and United States v. Martinez, 572 F.3d 82 (2d. Cir.2009) (per curiam). In McGee, we held that “a defendant who was designated a career offender but ultimately explicitly sentenced based on a Guidelines range calculated by Section 2D1.1 of the [United States Sentencing] Guidelines is eligible for a reduced sentence under 18 U.S.C. § 3582(c)(2) and the crack amendments.” Id. at 230. Because the district court believed that McPherson’s eligibility turned on the amendments’ effect on his pre-departure Guidelines range rather than on the range that ultimately served as the basis for his sentence, we vacate its order and remand the case so that it may clarify whether McPherson’s sentence was in fact premised on the crack cocaine guidelines. See Martinez, 572 F.3d at 84-85; McGee, 553 F.3d at 227. If it was, then the district court should determine whether and to what extent it will resentence the defendant. Of course, if McPherson’s sentence when imposed was not based on the crack cocaine guidelines, McPherson is ineligible for a sentence reduction. See United States v. Williams, 551 F.3d 182, 185-86 (2d Cir.2009).

Accordingly, the order of the district court is VACATED and the case is REMANDED for further proceedings consistent with this Order.