USCA4 Appeal: 24-6634 Doc: 5 Filed: 08/27/2024 Pg: 1 of 3

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 24-6634

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

ASTON EARL MCCREA,

Defendant - Appellant.

Appeal from the United States District Court for the Western District of Virginia, at Roanoke. Michael F. Urbanski, Senior District Judge. (7:11-cr-00089-MFU-1)

Submitted: August 22, 2024 Decided: August 27, 2024

Before WILKINSON, WYNN, and RICHARDSON, Circuit Judges.

Affirmed and remanded by unpublished per curiam opinion.

Aston Earl McCrea, Appellant Pro Se.

Unpublished opinions are not binding precedent in this circuit. USCA4 Appeal: 24-6634 Doc: 5 Filed: 08/27/2024 Pg: 2 of 3

PER CURIAM:

Aston Earl McCrea appeals the district court’s order denying his motion for a

sentence reduction under

(c)(2) and Amendment 782 to the Sentencing

Guidelines, his motion to grant that motion, and his motion for verification. We conclude

that the district court correctly determined that McCrea is ineligible for relief under

Amendment 782, which reduced by two the offense levels assigned to drug quantities,

because his Guidelines range was based on his status as a career offender, not on the drug

quantities attributable to him. See United States v. Spruhan,

(4th Cir. 2021) (stating standard). Accordingly, we affirm the district court’s order. United

States v. McCrea, No. 7:11-cr-00089-MFU-1 (W.D. Va. June 6, 2024).

After reviewing the record, however, we have discovered a procedural irregularity

that warrants remand to the district court for further proceedings. In his initial motion,

McCrea sought relief under § 3582(c)(2) and Amendment 782, and the motion was

docketed as such. However, in its order directing the Federal Public Defender (FPD) and

the Government to respond, the court construed this motion as a motion for compassionate

release under

(c)(1)(A), stating that McCrea had argued that he would no

longer be deemed a career offender if sentenced today. The FPD responded that McCrea

was ineligible for relief under Amendment 782 because he was sentenced as a career

offender. The Government agreed that McCrea was ineligible for relief under

Amendment 782 but labeled its submission as a response to McCrea’s motion for

compassionate release. And then, in his reply, McCrea argued for the first time that he

would not be deemed a career offender if sentenced today and that this qualified as an

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extraordinary and compelling reason for his early release under § 3582(c)(1)(A), as did the

Bureau of Prisons’ alleged failure to apply certain credits to his sentence. The court then

entered its order denying McCrea’s motion for a sentence reduction under § 3582(c)(2) and

Amendment 782. Before noting his appeal, McCrea submitted an exhibit to demonstrate

that he had exhausted his administrative remedies by requesting compassionate release

from the Warden on the same grounds identified in his reply. Finally, along with his notice

of appeal, McCrea moved for reconsideration, explaining that he had filed a motion for a

sentence reduction under § 3582(c)(2) and a motion for compassionate release under

§ 3582(c)(1)(A).

Due to this procedural confusion, the district court did not consider McCrea’s

arguments for compassionate release. Accordingly, we construe McCrea’s “reply” as a

motion for compassionate release and remand to the district court for further proceedings

on that motion. 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.

AFFIRMED AND REMANDED

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