                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 09-7220


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

TYRELL DANTE BROWN,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk.     Robert G. Doumar, Senior
District Judge. (2:00-cr-00094-RGD-2)


Submitted:   April 9, 2010                    Decided:   June 3, 2010


Before NIEMEYER, MOTZ, and DUNCAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Michael S. Nachmanoff, Federal Public Defender, Keith Loren
Kimball, Assistant Federal Public Defender, Norfolk, Virginia,
for Appellant. Neil H. MacBride, United States Attorney, Howard
J.   Zlotnick,  Richard   D.  Cooke,   Assistant United  States
Attorneys, Richmond, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

            Tyrell Dante Brown appeals from the partial grant of

his 18 U.S.C. § 3582 (2006) motion for reduction of sentence

based   upon      the     crack     cocaine        amendments      to   the     Sentencing

Guidelines.      We affirm.

            Brown’s        original       Guidelines       range    was       188   to   235

months,    and     he     was     sentenced        to   204   months      incarceration.

Brown’s amended Guidelines range, after application of Amendment

715, was 151-188 months.                 The Government agreed that Brown was

eligible for a reduction but it opposed such a reduction based

upon Brown’s alleged danger to the community.                           In support, the

Government averred that Brown had repeated incidents of violent

behavior in prison.

            On June 2, 2009, the district court ruled that it was

required to “act as if the Crack Cocaine Amendments were in

effect at the time of sentencing.”                      Thus, the court stated that

it would “not consider events and circumstances that occurred

subsequent to sentencing.”                The court then stated it considered

the sentencing factors and granted the motion, reducing Brown’s

sentence to 188 months.

            On      June      11,       the    Government     filed       a    motion     to

reconsider       under     Fed.     R.    Crim.      P.   35(a).        The     Government

asserted     that       the     court    was    permitted      to    consider       Brown’s

post-sentencing conduct under the applicable Guidelines policy

                                               2
statements.          The district court vacated its June 2 order and

scheduled       a    hearing       on    the    motion        to   reconsider.           At   the

hearing, the court stated that “I was in error, clearly” and

granted the motion to reconsider.

            After the hearing, where Brown’s behavior in prison

was     discussed          in     depth,       the      district        entered     an    order

considering          in         detail     the         statutory        factors,         Brown’s

post-sentencing            conduct,      and    the     safety     of    the    public.       The

court    then       granted      the     motion       for    reduction    of    sentence      and

imposed a sentence of 196 months.                           Brown timely appealed.             On

appeal,     Brown          asserts       that     Rule        35(a)      does     not     permit

reconsideration in this case because the Government did not show

that the district court committed clear error.                                  Brown further

contends that his sentence was an abuse of discretion because it

was above the amended Guidelines range and was greater than the

original reduced sentence.

            Rule           35(a)        authorizes           the   reconsideration            and

correction      of     a    sentence       under       two    conditions.         First,      the

motion must be filed within fourteen days, and second, the court

may only correct an “arithmetical, technical, or other clear

error.”     United States v. Goodwyn, 596 F.3d 233, 235 (4th Cir.

2010).     Here, the Government filed its motion nine days after

the entry of sentence and alleged clear error in the district



                                                  3
court’s original imposition of sentence.                      Thus, the district

court had authority to consider the motion.

            Under the clear error standard of review, a court may

reverse only if “left with the definite and firm conviction that

a mistake has been committed.”                 United States v. Stevenson, 396

F.3d 538, 542 (4th Cir. 2005); see also United States v. Ward,

171 F.3d 188, 191 (4th Cir. 1999) (holding that Rule 35 permits

correction of a “misperception of the governing law”).                      There is

little     doubt    in   this    case     that    the   district    court     had    a

“definite and firm conviction” that it had erred by failing to

consider     Brown’s       post-sentencing         conduct.        Moreover,      the

district court’s determination that its initial order was in

error was correct; the Guidelines very clearly provide that a

district    court    “may    consider      post-sentencing        conduct    of     the

defendant.”         U.S.    Sentencing         Guidelines     Manual   §     1B1.10,

comment.     n.1(B)(iii)        (2008).          Because    the   district     court

properly found that its June 2 order was clearly erroneous, the

court acted appropriately by granting the Government’s motion

and reconsidering Brown’s sentence.

            Finally, Brown contends that, under our decision in

United States v. Dunphy, 551 F.3d 247 (4th Cir.), cert. denied,

129 S. Ct. 2401 (2009), the district court was constrained to

sentence Brown within the amended Guidelines range.                     Thus, the

196-month sentence was error, because it exceeded the amended

                                           4
Guidelines range of 151-188 months.                       We reject Brown’s argument.

While Dunphy        concluded       that    a       district        court   must     limit   the

extent of its sentence reduction to the minimum of the amended

Guidelines range, id. at 251, Dunphy also recognized that the

district court is not required to reduce a sentence, even if the

defendant      is    eligible       for    such       a   reduction.           Id.     at    252.

Moreover, even should the court decide to reduce a sentence, it

is not required to do so to the full extent authorized by the

amended Guidelines.           Id.    Instead, the court should consider the

statutory sentencing factors and determine whether a sentence

reduction      is     appropriate,          limited         only       by      the    explicit

requirement that the sentence not be below the bottom end of the

amended     Guidelines      range.          See       id.      at    252-54.         Thus,   the

district court did not err by imposing a reduced sentence above

the   amended       Guidelines      range.            Moreover,        we   find      that   the

district court appropriately considered the statutory sentencing

factors and Brown’s particular circumstances on reconsideration

and   did     not   abuse     its    discretion           in     choosing      the    sentence

imposed.

              Based on the foregoing, we affirm the judgment of the

district    court.       We    dispense         with      oral      argument    because      the

facts   and    legal    contentions         are       adequately        presented       in   the




                                                5
materials   before   the   court   and   argument   would   not   aid   the

decisional process.

                                                                  AFFIRMED




                                    6
