United States v. Perry , 359 F. App'x 510 ( 2010 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
January 5, 2010
No. 08-40775
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
MAURICE ANDRE PERRY
Defendant - Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 3:05-CR-17-ALL
Before HIGGINBOTHAM, CLEMENT, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Maurice Andre Perry appeals the district court’s limited grant of his
motion for a sentence reduction. See 18 U.S.C. § 3582(c)(2). Perry contends that
the district court erred by failing to afford him the opportunity to review and
comment on the addendum to the presentence report (PSR) that was prepared
in connection with his motion.
The Government does not dispute that Perry was entitled to an
opportunity to review and comment on the PSR prior to the district court’s
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
No. 08-40775
ruling. See United States v. Mueller, 168 F.3d 186, 189 (5th Cir. 1999). We
conclude that on this record, we cannot determine whether the district court
considered the merits of the arguments raised in Perry’s untimely motion for
reconsideration, nor can we conclude that any error was harmless. See id.;
United States v. Andrews, 390 F.3d 840, 846 & n.9 (5th Cir. 2004). Accordingly,
we vacate the judgment of the district court and remand to permit the district
court to consider the arguments asserted by Perry in his motion for
reconsideration. We express no opinion on the disposition of Perry’s motion on
remand.
VACATED AND REMANDED.
2