
    UNITED STATES of America, Appellee, v. Zachary VASQUEZ aka Munch, Defendant-Appellant, Pedro Adams, aka White Pete, Miguel Benitez, aka Mega, John Curet, aka JB, aka Cous, aka John John, Kristopher Alvarado, aka Skur, aka Christian, Edward Negrin, aka Kev, Hector Santillian, aka Freaky, Williams Hendricks, aka Charlie, Paul Daniels, aka Harlem, Darryl Randolph, aka Light, Tevon Nelson, Defendants.
    No. 12-2954-cr.
    United States Court of Appeals, Second Circuit.
    Jan. 30, 2013.
    John P. Collins, Jr. (Katherine Polk Failla, on the brief), Assistant United States Attorneys, for Preet Bharara, United States Attorney for the Southern District of New York, New York, NY, for Appellee.
    James M. Branden, Law Office of James M. Branden, New York, NY, for Appellant.
    Present: RALPH K. WINTER, ROSEMARY S. POOLER and DENNY CHIN, Circuit Judges.
    
      
       The clerk should remove "Plaintiff” from the caption.
    
   SUMMARY ORDER

Defendant-Appellant, Zachary Vasquez appeals from the district court’s June 25, 2012 order denying his motion for a reduction in sentence pursuant to 18 U.S.C. § 3582(c)(2) and the United States Sentencing Commission, Guidelines Manual, App. C, Amendment 750, which lowered the base offense levels for crack cocaine offenses. We assume the parties’ familiarity with the underlying facts, procedural history, and specification of issues for review.

We review a district court’s denial of a motion to reduce a sentence pursuant to § 3582(c)(2) for abuse of discretion. United States v. Borden, 564 F.3d 100, 104 (2d Cir.2009). An abuse of discretion occurs where a district court “ *base[s] its ruling on an erroneous view of the law or on a clearly erroneous assessment of the evidence, or render[s] a decision that cannot be located within the range of permissible decisions.’” Id. (quoting Sims v. Blot, 534 F.3d 117, 132 (2d Cir.2008)).

Title 18, United States Code, Section 3582(c)(2) authorizes a district court to reduce a defendant’s sentence “based on a sentencing range that has subsequently been lowered by the Sentencing Commission ... after considering the factors set forth in section 3553(a) to the extent that they are applicable.” 18 U.S.C. § 3582(c)(2).

Defendant argues on appeal that the court abused its discretion by not decreasing defendant’s 80-month sentence to a 70-month sentence, under the new Guidelines. A district court’s refusal to grant a downward departure is generally not ap-pealable. See, e.g., United States v. Martin, 78 F.3d 808, 815 (2d Cir.1996); United States v. Sharpsteen, 913 F.2d 59, 62-63 (2d Cir.1990). One narrow exception exists for those cases in which the sentencing judge mistakenly believes that he or she lacks authority to grant a given departure. See, e.g., United States v. Ekhator, 17 F.3d 53, 55 (2d Cir.1994). This Court finds where documents submitted to the district court create “a distinct risk that the [cjourt was agreeing with the contention that a departure was legally unavailable” remand is appropriate. United States v. Clark, 128 F.3d 122, 124 (2d Cir.1997) (quoting United States v. Brown, 98 F.3d 690, 694 (2d Cir.1996)). See also United States v. Fleming, 397 F.3d 95, 100 (2d Cir.2005) (stating the rule).

In the case at hand, both the probation office, as well as the government, submitted documents incorrectly advising the district court, as to Vasquez’s sentence. First, the Probation Office’s March 20, 2012 memorandum incorrectly stated that “the defendant is precluded from a sentencing reduction.” Probation Memo, at 2. As the government admits, this statement was “mistaken! ],” given Vasquez was in fact eligible for a sentencing reduction under § 3582(c)(2). Appellee’s Br. at 9. Moreover, in its own memorandum to the district court, the government incorrectly stated that the previous sentencing judge “determined that the total offense level was 30.” A.55 In fact, the total offense level determined by the sentencing judge was 29. Thus, in addition to the probation office incorrectly stating that the defendant was ineligible for a sentencing reduction, the government incorrectly advised the district court as to the initial scope of the possible sentencing range. Given that the record here provides this Court with clear evidence of a substantial risk that the district court misapprehended the scope of its departure authority we find remand appropriate.

Accordingly, we remand for further consideration of the sentence. If the district court determines that it would not depart even if the circumstances made a departure warranted, or concludes, after appropriate fact-finding, that a departure is not warranted, the sentence should not be disturbed. If the circumstances warrant a departure, the sentence may be adjusted.

Accordingly, the order of the district court hereby is VACATED and REMANDED.  