United States v. Dave Taylor , 700 F. App'x 313 ( 2017 )

ON REHEARING
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 17-6388
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DAVE ANDRAE TAYLOR, a/k/a Indian, a/k/a Nicholas, a/k/a Spike,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern District of Virginia, at
Richmond. Robert E. Payne, Senior District Judge. (3:99-cr-00145-REP-2)
Submitted: October 5, 2017 Decided: November 9, 2017
Before WILKINSON, NIEMEYER, and KEENAN, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
Dave Andrae Taylor, Appellant Pro Se. Peter Sinclair Duffey, Gurney Wingate Grant, II,
Katherine Lee Martin, Robert E. Trono, Assistant United States Attorneys, Heather Hart
Mansfield, OFFICE OF THE UNITED STATES ATTORNEY, Richmond, Virginia;
Michael Arlen Jagels, Senior Deputy Attorney General, OFFICE OF THE ATTORNEY
GENERAL OF VIRGINIA, Richmond, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Dave Andrae Taylor appeals the district court’s order construing his second 18
U.S.C. § 3582(c)(2) (2012) motion for a sentence reduction under Amendment 782 to the
Guidelines as a motion to reconsider and denying it sua sponte for lack of jurisdiction,
citing United States v. Goodwyn, 596 F.3d 233, 235-36 (4th Cir. 2010) (holding that no
provision authorizes a district court to reconsider its order on a § 3582 motion). We
affirmed for the reasons stated by the district court. Taylor has now filed a petition for
panel rehearing and rehearing en banc. Upon review, we grant Taylor’s petition for panel
rehearing.
After the district court denied Taylor’s motion to reconsider, this court determined
that the prohibition against “§ 3582(c)(2)-based motions for reconsideration” is not
jurisdictional and, thus, is “waived when the government failed to assert it below.”
United States v. May, 855 F.3d 271, 274 (4th Cir. 2017), cert. denied, __ S. Ct. __, No.
17-142, 2017 WL 3219499 (U.S. Oct. 2, 2017). Accordingly, the district court did not
lack authority to entertain Taylor’s motion to reconsider.
Though aware that Taylor was eligible for a sentence reduction under Amendment
782, the district court denied Taylor’s initial request for that relief as a matter of
discretion. In his motion to reconsider, Taylor claimed that a prison infraction cited by
the district court in its original order denying his § 3582(c)(2) motion has since been
expunged. Because, under May, the district court had authority to consider Taylor’s
motion to reconsider, we vacate the district court’s order and remand this matter to the
district court so that it may reconsider Taylor’s request for a sentence reduction under
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Amendment 782. 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
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