Case: 16-30619       Document: 00513883206         Page: 1     Date Filed: 02/21/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT

                                                                           United States Court of Appeals

                                     No. 16-30619
                                                                                    Fifth Circuit

                                                                                  FILED
                                   Summary Calendar                        February 21, 2017
                                                                             Lyle W. Cayce
UNITED STATES OF AMERICA,                                                         Clerk


                                                  Plaintiff - Appellee

v.


MICHAEL DILLON, also known as Bubba Dillon, also known as Michael
Dillion,

                                                  Defendant - Appellant


                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                             USDC No. 2:03-CR-252-1


Before BARKSDALE, HAYNES, and HIGGINSON, Circuit Judges.
PER CURIAM: *
       In 2005, Michael Dillon was sentenced to 300-months’ imprisonment
following his guilty-plea conviction for two cocaine-related drug offenses. In
2014, he moved, pursuant to 18 U.S.C. § 3582(c)(2), for a sentence reduction
based on Amendment 782 to Sentencing Guideline § 2D1.1. In denying the
motion, the district court ruled:          “Having carefully considered all of the


       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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: 16-30619      Document: 00513883206      Page: 2    Date Filed: 02/21/2017


                                   No. 16-30619

information submitted, including the defendant’s [presentence investigation
report], the sentence imposed was fair and reasonable.” Dillon contends the
court abused its discretion in considering the evidence.
      The denial of a § 3582(c)(2) motion for a sentence reduction is reviewed
for abuse of discretion. United States v. Henderson, 636 F.3d 713, 717 (5th Cir.
2011). “A district court abuses its discretion if it bases its decision on an error
of law or a clearly erroneous assessment of the evidence.” Id. (quoting United
States v. Smith, 417 F.3d 483, 486–87 (5th Cir. 2005)). In short, Dillon was
entitled to adequate consideration of his motion. See United States v. Evans,
587 F.3d 667, 672–73 (5th Cir. 2009). We will generally assume a court has
complied with the two-step inquiry applicable to § 3582(c)(2) motions by (1)
determining defendant’s eligibility for a reduction, and (2) considering the
§ 3553(a) factors. See Henderson, 636 F.3d at 717–18; United States v. Larry,
632 F.3d 933, 936–37 (5th Cir. 2011).
      The record, however, undermines that assumption: the “Amendment
782 Eligibility Information Sheet” prepared by the United States Probation
Office, and presumably considered by the district court, pertains to an
unrelated defendant, coincidentally with the same last name as appellant.
Accordingly, we are unable to rule out the possibility that the court
inadvertently considered clearly erroneous facts of no relation to Michael
Dillon, or failed to consider whether a sentence reduction was “warranted in
whole or in part under the particular circumstances” of his case. Henderson,
636 F.3d at 717.
      Neither side has noted this error. And, although Dillon failed to brief
this issue, “[i]n exceptional circumstances, especially criminal cases, we can,
in our discretion, take sua sponte notice of errors not presented in either the
district court or the appellant’s initial brief” if “fairness and the public interest”



                                          2
    Case: 16-30619    Document: 00513883206    Page: 3   Date Filed: 02/21/2017


                                No. 16-30619

so dictate. United States v. Broussard, 669 F.3d 537, 552 & n.10 (5th Cir.
2012). “We exercise this discretion with the greatest prudence, recognizing
that it is only the extraordinary case which will excuse an appellant’s failure
to make an argument in his initial brief.” Id. at 552–53. This is such an
instance. While we, of course, express no opinion regarding the merits of
Dillon’s motion, fairness and the public interest dictate we vacate the court’s
order and remand for reevaluation on the basis of a clarified and complete
record. See Broussard, 669 F.3d at 552–53; Henderson, 636 F.3d at 719.
      VACATED and REMANDED.




                                      3