United States v. Hood

PUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 08-7019
CARLOUS GERRARD HOOD,
Defendant-Appellant.


UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 08-7571
COREY ALLEN BROOKS,
Defendant-Appellant.

Appeals from the United States District Court
for the Western District of North Carolina, at Statesville.
Richard L. Voorhees, District Judge.
(5:00-cr-00047-RLV-4; 5:01-cr-00008-RLV-7)

Argued: December 2, 2008

Decided: February 20, 2009

Before WILLIAMS, Chief Judge, and NIEMEYER
and MOTZ, Circuit Judges.
2 UNITED STATES v. HOOD
Affirmed by published opinion. Judge Niemeyer wrote the
opinion, in which Chief Judge Williams and Judge Motz
joined.

COUNSEL

ARGUED: Matthew Segal, FEDERAL DEFENDERS OF
WESTERN NORTH CAROLINA, INC., Asheville, North
Carolina, for Appellants. Amy Elizabeth Ray, OFFICE OF
THE UNITED STATES ATTORNEY, Asheville, North Car-
olina, for Appellee. ON BRIEF: Claire J. Rauscher, Execu-
tive Director, FEDERAL DEFENDERS OF WESTERN
NORTH CAROLINA, INC., Asheville, North Carolina; Tan-
zania Cannon-Eckerle, Charlotte, North Carolina, for Appel-
lants. Gretchen C. F. Shappert, United States Attorney,
Charlotte, North Carolina, for Appellee.

OPINION

NIEMEYER, Circuit Judge:

In furtherance of its conclusion that "the 100-to-1 drug
quantity ratio [of cocaine powder to crack cocaine used in
sentencing] significantly undermines various congressional
objectives set forth in the Sentencing Reform Act and else-
where," the United States Sentencing Commission adopted
Amendment 706 to the Sentencing Guidelines, effective
November 1, 2007. Amendment 706 amended U.S.S.G.
§ 2D1.1, lowering by two levels the offense levels associated
with each quantity of crack cocaine, and, effective March 3,
2008, it was made retroactive.

Amendment 706 has now generated thousands of motions
to reduce sentences, filed under 18 U.S.C. § 3582(c)(2)
(authorizing the modification of a sentence "based on a sen-
 UNITED STATES v. HOOD 3
tencing range that has subsequently been lowered by the Sen-
tencing Commission" (emphasis added)). The two appeals
here come to us from the district court’s orders denying two
such motions, one filed by Carlous Gerrard Hood and the
other by Corey Allen Brooks. These defendants’ convictions
for crack cocaine trafficking required mandatory minimum
sentences of 240 months’ imprisonment under 21 U.S.C.
§ 841(b)(1)(A), but in each case the district court reduced the
sentence under 18 U.S.C. § 3553(e)—Hood’s to 100 months’
imprisonment and Brooks’ to 108 months’ imprisonment—to
reflect the defendant’s substantial assistance to the govern-
ment. Each defendant now, through his § 3582(c)(2) motion,
requests a proportionate reduction of his sentence to reflect
the lowering of sentences for crack cocaine offenses provided
by Amendment 706.

We conclude that the defendants’ sentences in these
appeals were "based on" the statutorily mandated minimum
sentence, not "based on a sentencing range" lowered by
Amendment 706, and were reduced by the district court under
18 U.S.C. § 3553(e) only for each defendant’s substantial
assistance to the government, not because of the application
of any "guideline range" lowered by Amendment 706.
Because Amendment 706 lowered only the crack cocaine
offense levels in § 2D1.1 of the Sentencing Guidelines, it did
not have the effect of lowering the defendants’ applicable sen-
tencing ranges. Accordingly, we affirm.

I

Carlous Gerrard Hood

Hood pleaded guilty, pursuant to a written plea agreement,
to one count of conspiracy to possess with intent to distribute
cocaine and cocaine base, in violation of 21 U.S.C.
§§ 841(a)(1) and 846. In the plea agreement, Hood stipulated
that he was responsible for more than 1.5 kilograms of crack
cocaine and for at least 300 but less than 400 grams of
4 UNITED STATES v. HOOD
cocaine powder. The government had also filed earlier an
information pursuant to 21 U.S.C. § 851, notifying Hood that
it intended to rely on Hood’s prior North Carolina state drug
trafficking conviction to seek an enhanced sentence under 21
U.S.C. § 841(b)(1)(A).

The presentence report recommended a Guidelines sen-
tence of 240 months’ imprisonment. The report began with a
base offense level of 38 under U.S.S.G. § 2D1.1 for an
offense involving at least 1.5 kilograms of cocaine base and
between 300 and 400 grams of cocaine powder, and lowered
that level by three levels for Hood’s acceptance of responsi-
bility, yielding a final offense level of 35. With Hood’s crimi-
nal history category of II, the resulting Guidelines range was
188 to 235 months’ imprisonment. In light of Hood’s prior
felony offense, however, he was subject to the statutory man-
datory minimum sentence of 240 months’ imprisonment
under 21 U.S.C. § 841(b)(1)(A), and that sentence became the
Guidelines sentence under U.S.S.G. § 5G1.1(b) ("Where a
statutorily required minimum sentence is greater than the
maximum of the applicable guideline range, the statutorily
required minimum sentence shall be the guideline sentence").

Prior to sentencing, the government filed a motion for a
downward departure under 18 U.S.C. § 3553(e) and U.S.S.G.
§ 5K1.1, based on Hood’s substantial assistance. The govern-
ment recommended that the court "depart downward from the
statutory sentence [of 240 months’ imprisonment] to a term of
121 months."

At sentencing, the district court began by adopting the pre-
sentence report, finding that it accurately calculated Hood’s
Guidelines sentence. The government then described Hood’s
substantial assistance and, consistent with its earlier motion,
proposed a downward departure to "offense level 31, criminal
history category II," recommending a 121-month sentence.
Acting under 18 U.S.C. § 3553(e) and U.S.S.G. § 5K1.1, the
district court granted the government’s motion, stating that it
 UNITED STATES v. HOOD 5
[found] that defendant’s assistance was extensive—
including an appearance for testimony at trial — sig-
nificant, useful and timely, reliable, complete. The
court has given the government’s recommendation
substantial weight and will sentence the defendant in
the range of 29, category II, having in mind the
nature of his assistance and recognizing, also, the
purposes in particular of rehabilitation and deter-
rence.

The district court then sentenced Hood to 100 months’ impris-
onment, entering judgment on September 11, 2002.

In April 2008, because of Amendment 706 to the Sentenc-
ing Guidelines, which retroactively lowered the base offense
levels applicable to crack cocaine offenses under U.S.S.G.
§ 2D1.1 by two levels, Hood filed a motion under 18 U.S.C.
§ 3582(c)(2) for a further proportionate reduction of his sen-
tence. In his motion, Hood maintained that his original sen-
tence was ultimately based on the crack cocaine offense level
29, with a corresponding sentencing range of 97 to 121
months’ imprisonment, and that his 100-month sentence was
13% above the low end of that range. Thus, he argued, under
Amendment 706, his offense level should be lowered two
levels to level 27, with a corresponding sentencing range of
78 to 97 months’ imprisonment, and that his amended sen-
tence should be 81 months’ imprisonment, at 13% above the
low end of that range.

The probation officer submitted a supplemental presentence
report that provided that under Amendment 706, Hood’s
revised offense level was lowered from 35 to 33 and, with his
criminal history category of II, resulted in a revised sentenc-
ing range of 151 to 188 months’ imprisonment. The report
concluded, however, that Amendment 706 had no effect on
Hood’s sentence because, pursuant to U.S.S.G. § 5G1.1(b),
his Guidelines sentence remained 240 months’ imprisonment,
6 UNITED STATES v. HOOD
the statutory minimum sentence under 21 U.S.C.
§ 841(b)(1)(A).

The district court denied Hood’s § 3582(c)(2) motion, rul-
ing that the 240-month statutory minimum sentence barred
§ 3582(c)(2) relief. The court explained:

Pursuant to USSG § 5G1.1, the sentence imposed
may not be less than the statutorily required mini-
mum sentence. In this case, the statutory mandatory
minimum sentence was deemed to be the guideline
sentence under § 5G1.1(b). If Amendment 706
(Retroactive Crack Cocaine Amendment) had been
in effect at the time of the original sentencing, it
would not have been of benefit to defendant, because
the statutorily mandated minimum sentence would
have been the guideline sentence anyway. Because
defendant’s original sentence was based on the statu-
tory minimum rather than the otherwise applicable
guideline sentence, notwithstanding departure under
USSG § 5K1.1 and 18 U.S.C. § 3553(e), Amend-
ment 706 has no effect on the defendant’s guideline
sentence.

From the district court’s order of June 13, 2008, denying
Hood’s § 3582(c) motion, Hood appealed.

Corey Allen Brooks

Brooks pleaded guilty, pursuant to a written plea agree-
ment, to one count of conspiracy to possess with intent to dis-
tribute crack cocaine, in violation of 21 U.S.C. §§ 841(a)(1)
and 846. In the plea agreement, Brooks stipulated that he was
responsible for in excess of 50 grams but less than 150 grams
of crack cocaine. The government had also filed earlier an
information pursuant to 21 U.S.C. § 851, notifying Brooks
that it intended to rely on Brooks’ prior North Carolina state
 UNITED STATES v. HOOD 7
felony conviction for possession of cocaine to seek an
enhanced sentence under 21 U.S.C. § 841(b)(1)(A).

The presentence report recommended a Guidelines sen-
tence of 240 months’ imprisonment. The report began with a
base offense level of 32 under U.S.S.G. § 2D1.1 for an
offense involving at least 50 grams but less than 150 grams
of crack cocaine and lowered that by three levels for Brooks’
acceptance of responsibility, yielding a final offense level of
29. With Brooks’ criminal history category of III, the result-
ing Guidelines range was 108 to 135 months’ imprisonment.
In light of Brooks’ prior felony offense, however, he was sub-
ject to the statutory mandatory minimum sentence of 240
months’ imprisonment under 21 U.S.C. § 841(b)(1)(A), and
that sentence became the Guidelines sentence under U.S.S.G.
§ 5G1.1(b).

Prior to sentencing, the government filed a motion for a
downward departure under 18 U.S.C. § 3553(e), based on
Hood’s substantial assistance. In its motion, the government
stated:

The defendant’s assistance was significant. He gave
a complete and truthful debriefing about the conspir-
acy. His cooperation led, in part, to the guilty pleas
of co-conspirators. Also taken into consideration,
however, is the fact of the defendant’s violation of
the conditions of his bond through the continued use
of marijuana and cocaine.

The government recommended that the court impose a sen-
tence below the applicable statutory range of 240 months’
imprisonment and sentence Brooks to 160 months’ imprison-
ment.

At sentencing, the district court began by adopting the pre-
sentence report, finding that it accurately calculated Hood’s
Guidelines sentence. The government then described Brooks’
8 UNITED STATES v. HOOD
substantial assistance, stating that Brooks "provided what we
believe to be a truthful debriefing outlining the contours of [a]
conspiracy . . . that led to some of the guilty pleas of co-
conspirators." The government told the court that it took into
account "the fact that [Brooks] had multiple violations of his
bond through continued use of marijuana and cocaine" in
arriving at a recommended sentence of 160 months’ imprison-
ment, 80 months below the 240-month statutory minimum.
When considering the government’s motion, the court
observed:

[I]t does strike me that if the statutory minimum is
not applicable, the court is faced with the guideline
range of 108 to 135. . . . [T]he mandatory minimum
. . . is a sentence imposed by statute. And if the court
isn’t bound by that statute, then the only thing left is
the guideline range.

In response to the court’s observation, the government revised
its recommendation to request a sentence of 135 months’
imprisonment, at the top of the range identified by the court.
The district court then granted the government’s motion under
18 U.S.C. § 3553(e), stating:

Defendant’s cooperation was significant, complete
and truthful. And it led to certain guilty pleas of oth-
ers, although the court considers also the fact that he
violated his bond. Considering also the sentences of
the co-defendants and the fact that he was a street
level drug dealer, the court will sentence at the low
end of the range.

The court sentenced Brooks to 108 months’ imprisonment,
entering judgment on January 9, 2003.

In June 2008, because of Amendment 706 to the Sentenc-
ing Guidelines, Brooks filed a motion under 18 U.S.C.
§ 3582(c)(2) for further reduction of his sentence. In his
 UNITED STATES v. HOOD 9
motion, Brooks maintained that his original sentence was ulti-
mately based on the crack cocaine offense level 29, with a
corresponding sentencing range of 108 to 135 months’ impris-
onment, and that his 108-month sentence represented the low
end of that range. Thus, he argued, under Amendment 706,
his offense level should be lowered two levels to level 27,
with a corresponding sentencing range of 87 to 108 months’
imprisonment, and that his amended sentence should be 87
months’ imprisonment, at the low end of the amended range.

The probation officer submitted a supplemental presentence
report that provided that under Amendment 706, Brooks’
revised offense level was lowered from level 29 to level 27
and, with his criminal history category III, resulted in a
revised sentencing range of 87 to 108 months’ imprisonment.
The report concluded, however, that Amendment 706 had no
effect on Hood’s sentence because, pursuant to U.S.S.G.
§ 5G1.1(b), his Guidelines sentence remained 240 months’
imprisonment, the statutory minimum sentence under 21
U.S.C. § 841(b)(1)(A).

The district court denied Brooks’ § 3582(c)(2) motion, rul-
ing that the 240-month statutory minimum sentence barred
§ 3582(c)(2) relief. The court explained:

Pursuant to USSG § 5G1.1, the sentence imposed
may not be less than the statutorily required mini-
mum sentence. If Amendment 706 (Retroactive
Crack Cocaine Amendment) had been in place at the
original sentencing, the guideline sentence would
have been the mandatory minimum. Therefore,
Amendment 706 has no effect on the defendant’s
sentence.

From the district court’s order of July 29, 2008, denying his
§ 3582(c) motion, Brooks appealed.
10 UNITED STATES v. HOOD
II

We begin by examining the specific authority granted to
courts by Congress in 18 U.S.C. § 3582(c)(2) to modify sen-
tences. Section 3582(c)(2) authorizes a district court to mod-
ify a defendant’s term of imprisonment when the defendant is
"sentenced to a term of imprisonment based on a sentencing
range that has subsequently been lowered by the Sentencing
Commission." 18 U.S.C. § 3582(c)(2) (emphasis added). That
subsection is part of a larger provision that denies district
courts generally any authority to modify a term of imprison-
ment "once it has been imposed." 18 U.S.C. § 3582(c). Thus,
subsection (c)(2) provides a court exceptional authority to
reduce a sentence. It also provides that any such reduction of
a sentence must be "consistent with applicable policy state-
ments issued by the Sentencing Commission." Id.

The applicable policy statement issued by the Sentencing
Commission, implementing § 3852(c)(2), provides that a sen-
tence reduction under § 3582(c)(2) "is not authorized" if the
amendment to the Sentencing Guidelines "does not have the
effect of lowering the defendant’s applicable guideline
range." U.S.S.G. § 1B1.10(a)(2)(B). The Sentencing Guide-
lines also provide specific instructions for a court when "de-
termining whether, and to what extent, a reduction in the
defendant’s term of imprisonment . . . is warranted." U.S.S.G.
§ 1B1.10(b)(1). They instruct that "the court shall determine
the amended guideline range that would have been applicable
to the defendant if the amendment[ ] . . . had been in effect
at the time the defendant was sentenced . . . substitut[ing] only
the amendment[ ] . . . for the corresponding guideline provi-
sion[ ] that [was] applied" and "leav[ing] all other guideline
application decisions unaffected." Id.

Amendment 706, which was made effective November 1,
2007, and retroactive effective March 3, 2008, amended
§ 2D1.1 of the Sentencing Guidelines by reducing the offense
levels associated with crack cocaine quantities by two levels.
 UNITED STATES v. HOOD 11
See U.S.S.G. supp. to app. C, amend. 706 (Nov. 1, 2007); id.
amend. 713 (May 1, 2008); U.S.S.G. § 2D1.1; U.S.S.G.
§ 1B1.10(c). Amendment 706, by lowering a sentencing range
with retroactive application, now enables a defendant to seek
a reduced sentence through a motion filed under 18 U.S.C.
§ 3582(c)(2). To be the basis of a reduction under
§ 3582(c)(2), however, Amendment 706 must have "the effect
of lowering the defendant’s applicable guideline range."
U.S.S.G. § 1B1.10(a)(2)(B) (emphasis added).

A

Hood contends that the district court erred in denying his
§ 3582(c)(2) motion because, even though he was subject to
a mandatory minimum sentence of 240 months’ imprison-
ment, the court departed from that mandatory minimum sen-
tence to a sentence that fell within "the 97- to 120-month
sentencing range corresponding to Offense Level 29 and
Criminal History Category II." Hood argues that the district
court’s decision "fully incorporated the crack cocaine guide-
line modified by Amendment 706 — as evidenced by the gov-
ernment’s acknowledgement that the district court’s
downward departure [during sentencing] to Offense Level 29
reflected a six-level departure from the otherwise applicable
Offense Level." He thus asserts that his sentence was based
not on the 240-month mandatory minimum sentence, but on
the range corresponding to offense level 29. He contends that
Amendment 706 lowered this range by reducing his offense
level to 27, with a corresponding 78- to 97-month range, and
because his 100-month sentence was 13% above the low end
of the range for offense level 29, his amended sentence should
be 81 months, at 13% above the low end of the range for
offense level 27.

The first calculation that was performed in Hood’s sentenc-
ing was to compare the drug quantities attributable to Hood
with the relevant offense levels in U.S.S.G. § 2D1.1. This step
resulted in assigning Hood an offense level of 38. That level
12 UNITED STATES v. HOOD
was then reduced by three levels to level 35 because of
Hood’s acceptance of responsibility. Offense level 35, com-
bined with Hood’s criminal history category of II, resulted in
a Guidelines range of 188 to 235 months’ imprisonment. That
calculation, which applied U.S.S.G. § 2D1.1, however,
became irrelevant to Hood’s sentence because it yielded a
sentencing range less than the statutory minimum sentence of
240 months’ imprisonment as mandated by 21 U.S.C.
§ 841(b)(1)(A). And under the Sentencing Guidelines, Hood’s
Guidelines sentence became the statutory minimum, not any
sentence derived from U.S.S.G. § 2D1.1. See U.S.S.G.
§ 5G1.1(b) (providing that when the mandatory minimum
sentence is greater than the otherwise applicable guideline
range, "the statutorily required minimum sentence shall be the
guideline sentence"). At this point Hood’s sentence was
"based on" the Guidelines sentence of 240 months, rather than
on the sentencing range derived from § 2D1.1 for individual
crack cocaine offenses, which Amendment 706 amended.
Because Amendment 706 did not purport to lower the statu-
tory mandatory minimum—indeed, the Sentencing Commis-
sion has no authority to lower a statutory mandatory
minimum—it did not have the effect of lowering Hood’s
Guidelines range. Because Hood’s 240-month Guidelines sen-
tence was based on a statutory minimum and U.S.S.G.
§ 5G1.1(b), it was not based on a sentencing range lowered
by Amendment 706, and at this point in the analysis, Hood
would not be eligible for a reduced sentence under
§ 3582(c)(2).

The commentary to U.S.S.G. § 1B1.10 supports this analy-
sis. Application Note 1(A) provides that "a reduction in the
defendant’s term of imprisonment is not authorized under 18
U.S.C. § 3582(c)(2) and is not consistent with this policy
statement if . . . the amendment does not have the effect of
lowering the defendant’s applicable guideline range because
of the operation of another guideline or statutory provision
(e.g., a statutory mandatory minimum term of imprison-
ment)." U.S.S.G. § 1B1.10 cmt. n.1(A). In this case, the oper-
 UNITED STATES v. HOOD 13
ation of the 240-month statutory mandatory minimum
rendered Amendment 706 inapplicable.

But Hood’s ultimate 100-month sentence was the product
of a further sentencing procedure, a downward departure
authorized by 18 U.S.C. § 3553(e) when the government files
a motion for the reduction based on a defendant’s substantial
assistance to the government.1 Absent the limited authority
granted by § 3553(e), the district court was not authorized to
reduce Hood’s statutory minimum sentence. Section
841(b)(1)(A) mandated that Hood "be sentenced to a term of
imprisonment which may not be less than 20 years . . .
imprisonment." 21 U.S.C. § 841(b)(1)(A). This mandate could
not have been bypassed by the Sentencing Guidelines or by
the sentencing judge. Only Congress could authorize a depar-
ture from the statutorily mandated minimum sentence, and it
did so in § 3553(e) for the limited purpose stated there — "to
reflect a defendant’s substantial assistance in the investigation
or prosecution of another person who has committed an
offense." 18 U.S.C. § 3553(e).2 In this case, the district court
1
Section 3553(e) of Title 18 provides:
Limited authority to impose a sentence below a statutory
minimum.—Upon motion of the Government, the court shall
have the authority to impose a sentence below a level established
by statute as a minimum sentence so as to reflect a defendant’s
substantial assistance in the investigation or prosecution of
another person who has committed an offense. Such sentence
shall be imposed in accordance with the guidelines and policy
statements issued by the Sentencing Commission pursuant to sec-
tion 994 of title 28, United States Code.
2
Hood argues that our decision in United States v. Allen, 450 F.3d 565
(4th Cir. 2006), mandates that a sentence imposed pursuant to a § 3553(e)
departure should be measured not just by a defendant’s substantial assis-
tance, but also by reference to the § 3553(a) factors and the defendant’s
otherwise applicable guidelines range. We have previously held, however,
that in determining the extent of a departure below a statutory minimum
a district court should look to the substantial assistance factors listed in
U.S.S.G. § 5K1.1(a) United States v. Pillow, 191 F.3d 403, 407 (4th Cir.
14 UNITED STATES v. HOOD
exercised that authority on finding that Hood’s "assistance
was extensive . . . significant, useful and timely, reliable,
[and] complete."

Because Amendment 706 did not amend the authority con-
ferred by § 3553(e), nor the authority conferred by U.S.S.G.
§ 5K1.1 implementing § 3553(e), the Amendment was irrele-
vant to the reduction of Hood’s sentence. Amendment 706
amended U.S.S.G. § 2D1.1, but that section is not made appli-
cable to and does not authorize a reduction of sentences for
substantial assistance under § 3553(e) and U.S.S.G. § 5K1.1.
In short, Hood’s sentence was not "based on a sentencing
range . . . lowered by the Sentencing Commission" and there-
fore was not subject to modification under 18 U.S.C.
§ 3582(c)(2).

Hood argues that after the district court departed downward
pursuant to 18 U.S.C. § 3553(e) and U.S.S.G. § 5K1.1 on
account of his substantial assistance, his sentence was no lon-
ger based on the statutory mandatory minimum, but instead

1999). Moreover, the weight of authority in other circuits undercuts
Hood’s contention; in short, the extent of a § 3553(e) departure is based
solely on the defendant’s substantial assistance and other factors related to
that assistance. See United States v. Richardson, 521 F.3d 149, 159 (2d
Cir. 2008) ("When . . . the Guidelines sentence ends up as the statutory
minimum, both the decision to depart and the maximum permissible
extent of this departure below the statutory minimum may be based only
on substantial assistance to the government and on no other mitigating
considerations"); United States v. Williams, 474 F.3d 1130, 1130-31 (8th
Cir. 2007) ("Where a court has authority to sentence below a statutory
minimum only by virtue of a government motion under § 3553(e), the
reduction below the statutory minimum must be based exclusively on
assistance-related considerations"); United States v. Desselle, 450 F.3d
179, 182 (5th Cir. 2006) ("We thus join the majority of circuits in holding
that the extent of a . . . § 3553(e) departure must be based solely on
assistance-related concerns"); United States v. Auld, 321 F.3d 861, 867
(9th Cir. 2003) ("[I]n fixing a substantial assistance departure . . . [t]he dis-
trict court may not . . . consider factors unrelated to the defendant’s assis-
tance").
 UNITED STATES v. HOOD 15
on the otherwise applicable crack cocaine sentencing range.
He reasons that because § 3553(e) does not impose a lower
limit on the sentence that a district court may select under that
section, a sentencing court may fashion a departure that takes
into account the defendant’s otherwise applicable guideline
range, including the range based on § 2D1.1, which was
amended by Amendment 706. He notes that in this case, the
district court indicated that it had "given the government’s
recommendation substantial weight and . . . sentence[d] the
defendant in the range of 29, category II, having in mind the
nature of his assistance and recognizing, also, the purposes in
particular of rehabilitation and deterrence." Hood suggests
that the "range of 29, category II" is an implicit incorporation
of U.S.S.G. § 2D1.1.

Hood’s argument, however, contains several flaws. First, it
overlooks the fact that the only "guideline range applicable"
to his sentence, see U.S.S.G. § 1B1.10(a)(1), was the statu-
torily mandated "guideline sentence" of 240 months’ impris-
onment made applicable by U.S.S.G. § 5G1.1(b), and that
Guidelines sentence was never removed from operation in this
case. As we have stated, "§ 3553(e) allows for a departure
from, not the removal of, a statutorily required minimum sen-
tence." Pillow, 191 F.3d at 407 (emphasis added).

Second, in authorizing a sentence below the statutory mini-
mum, § 3553(e) does not provide any "sentencing range,"
much less a "sentencing range that has subsequently been
lowered by the Sentencing Commission," as § 3582(c)(2)
identifies as the object of a § 3582(c)(2) motion to reduce a
sentence. Rather, § 3553(e) directs that the sentence allowed
below the statutory minimum "shall be imposed in accordance
with the guidelines and policy statements issued by the Sen-
tencing Commission." The Sentencing Commission imple-
mented § 3553(e) in U.S.S.G. § 5K1.1. See U.S.S.G. § 5K1.1
cmt. n.1; see generally Pillow, 191 F.3d at 407. But § 5K1.1
also does not establish a sentencing range. Instead, it gives the
sentencing judge discretion to give a defendant an "appropri-
16 UNITED STATES v. HOOD
ate reduction," consistent with the non-exclusive list of rea-
sons for consideration by the judge, all related to the nature
and quality of a defendant’s substantial assistance.3 See
U.S.S.G. § 5K1.1; United States v. Pearce, 191 F.3d 488, 492
(4th Cir. 1999) (holding that under § 5K1.1, a sentencing
court may only consider the "nature, extent, and significance"
of the defendant’s assistance). In short, in reducing a sentence
under 18 U.S.C. § 3553(e) and U.S.S.G. § 5K1.1, the sentenc-
ing court does not apply a Guidelines sentencing range. See
United States v. Williams, 549 F.3d 1337, 1342 (11th Cir.
2008) (per curiam) (holding that a crack cocaine defendant
was not eligible for a sentence reduction under 18 U.S.C.
§ 3582(c)(2) in light of Amendment 706 where the defendant
was subject to a statutory mandatory minimum sentence and
the district court departed downward on the government’s
motion under 18 U.S.C. § 3553(e) and U.S.S.G. § 5K1.1).

It is true that the district court in this case did, in consider-
ing the degree of departure, allude to a Sentencing Guidelines
offense level and the sentencing range corresponding to it,
rather than referring to a percentage or to some other number
to quantify its downward departure. But the reference to level
29 has no legal significance for the analysis under
§ 3582(c)(2). The statute authorizing a departure from the
mandatory minimum did not provide a sentencing range, leav-
3
U.S.S.G. § 5K1.1(a) lists the following non-exclusive reasons for an
appropriate sentence reduction:
(1) [T]he court’s evaluation of the significance and usefulness
of the defendant’s assistance, taking into consideration the gov-
ernment’s evaluation of the assistance rendered;
(2) the truthfulness, completeness, and reliability of any infor-
mation or testimony provided by the defendant;
(3) the nature and extent of the defendant’s assistance;
(4) any injury suffered, or any danger or risk of injury to the
defendant or his family resulting from his assistance;
(5) the timeliness of the defendant’s assistance.
 UNITED STATES v. HOOD 17
ing that to the district court’s discretion. Nor did the Sentenc-
ing Guidelines provide a sentencing range that was
applicable. The court was not, therefore, applying a Guide-
lines range such that any sentence imposed was "based on a
sentencing range," as required by § 3582(c)(2).

Thus, Hood’s 100-month sentence was not based on any
sentencing range authorized by U.S.S.G. § 2D1.1, which
Amendment 706 amended, but rather on the mandated statu-
tory minimum sentence required by § 841(b)(1)(A) from
which the district court departed as authorized by § 3553(e),
employing the factors identified in U.S.S.G. § 5K1.1. Because
his sentence was not "based on a sentencing range . . . low-
ered by the Sentencing Commission," it was therefore not
subject to "modification" pursuant to a motion filed under
§ 3582(c)(2).

Hood argues that United States v. Goines, 357 F.3d 469,
473-80 (4th Cir. 2004), dictates a different outcome. In
Goines, we considered whether a clarifying amendment to the
Sentencing Guidelines lowered a sentencing range for pur-
poses of a motion under § 3582(c)(2). In holding that "a
defendant may rely on a clarifying . . . amendment to support
a § 3582(c)(2) motion, so long as the amendment has been
designated for retroactive application and would result in
application of a sentencing range lower than the range applied
at the original sentencing proceeding," id. at 480, we stated
that "sentencing range" is "the range actually applied by the
district court," as distinct from the range "prescribed by the
sentencing guidelines." Id. at 474, 475 (emphasis added).
Hood thus argues that Goines requires us to determine
whether Amendment 706 lowers not the range "prescribed by
the guidelines," but rather the range "applied by the district
court," which he contends was a post-departure sentencing
range that incorporated § 2D1.1.

Hood’s argument, however, is neither advanced nor sup-
ported by Goines. In Goines, the issue was whether a court,
18 UNITED STATES v. HOOD
in determining whether an amendment lowered a sentencing
range, should consider the Guidelines range that should have
been applied to the defendant or the Guidelines range actually
applied by the district court. In order to permit consideration
of the clarifying amendment in connection with the sentence
actually imposed, we held that a court must consider the
Guidelines range actually applied by the district court that the
clarifying amendment retroactively changed. Unlike the sen-
tencing court in Goines, however, the district court here cor-
rectly applied the Sentencing Guidelines in the first instance.
The district court applied the statutory mandatory minimum
as prescribed by U.S.S.G. § 5G1.1(b), and then it departed
from that statutory minimum pursuant to 18 U.S.C. § 3553(e),
which does not authorize a "guideline range." Thus, the only
"corresponding guideline provision[ ] . . . applied when
[Hood] was sentenced" was U.S.S.G. § 5G1.1(b), but this pro-
vision was not amended by Amendment 706. U.S.S.G.
§ 1B1.10(b)(1). In short, the holding in Goines does not con-
tribute to or change the analysis we apply to Hood.

B

Brooks argues similarly that the district court erred in deny-
ing his motion for a reduced sentence under § 3582(c)(2)
because after the district court departed downward pursuant to
the government’s motion under 18 U.S.C. § 3553(e), he was
sentenced within the range of 108 to 135 months that corre-
sponds to crack cocaine offense level 29 and criminal history
category III. Because his sentence of 108 months represented
the low end of the range, he thus argues that under Amend-
ment 706, his offense level should be lowered from 29 to 27,
corresponding to the lowered range of 87 to 108 months, and
that his amended sentence should be 87 months’ imprison-
ment, at the low end of that range.

For the reasons that we have given in connection with
Hood, Brooks is likewise not eligible for a sentence reduction
under § 3582(c)(2). His 108-month sentence was not "based
 UNITED STATES v. HOOD 19
on" the sentencing range for crack cocaine offenses that was
lowered by Amendment 706. Like Hood’s, his sentence was
based on a statutory minimum fixed by 21 U.S.C.
§ 841(b)(1)(A), and it was reduced to an appropriate sentence
authorized under § 3553(e) for his substantial assistance.

Brooks contends that the district court, in acting under
§ 3553(e) to impose a sentence below the statutory minimum,
explicitly took into account the crack cocaine Guidelines
range that would have been applicable but for the statutory
minimum. The district court stated at sentencing, "[I]f the
court isn’t bound by that statute [fixing the mandatory mini-
mum], then the only thing left is the guideline range."

But in Brooks’ case, like in Hood’s case, the district court’s
comments, whether appropriate or not, were legally insignifi-
cant for purposes of the analysis under § 3582(c)(2). In con-
sidering factors by which to quantify a departure under 18
U.S.C. § 3553(e), the court was not applying a "guideline pro-
vision[ ]" corresponding to Amendment 706, U.S.S.G.
§ 1B1.10(b)(1), such that the sentence it imposed was based
on a "sentencing range" lowered by Amendment 706, 18
U.S.C. § 3582(c)(2).

Like Hood’s sentence, Brooks’ sentence was based on a
statutory minimum fixed by 21 U.S.C. § 841(b)(1)(A), from
which the district court departed downward as authorized by
18 U.S.C. § 3553(e) for Brooks’ substantial assistance, not on
any "applicable guideline range" lowered by Amendment 706.
No guideline range was applicable, and Amendment 706 did
not purport to reduce any factors that the district court was
authorized to consider in quantifying a downward departure
under § 3553(e).

III

Finally, both Hood and Brooks contend that this court’s
practice of placing appeals from the denial of relief under
20 UNITED STATES v. HOOD
§ 3582(c) on the informal briefing calendar under Local Rule
34(b) presents "serious constitutional problems" arising from
the "delay or denial of relief." See United States v. Johnson,
732 F.2d 379, 381 (4th Cir. 1984) ("[U]ndue delay in process-
ing an appeal may rise to the level of a due process viola-
tion").

In determining whether a delay in processing on appeal
rises to the level of a due process violation, the court consid-
ers four factors: (1) "the length of delay"; (2) "the reason for
the delay"; (3) whether the defendant has asserted his right;
and (4) any prejudice that the delay causes to the defendant.
Johnson, 732 F.2d at 381-82 (quoting Barker v. Wingo, 407
U.S. 514, 530 (1972)). Considering these factors, we conclude
that no due process violation occurred.

Since the enactment of Amendment 706, thousands of
motions have been filed under § 3582(c), and most of the
appeals from rulings on these motions are filed by defendants
pro se. In these cases, informal briefing may result in a more
timely resolution than formal briefing because the formal
briefing and argument that might follow require additional
time. But even in these appeals by Hood and Brooks, where
formal briefing and argument were ordered, the delay was
neither undue nor prejudicial. The docket in this case shows
that Hood filed his notice of appeal pro se on June 19, 2008,
and his informal brief on July 21, 2008. In view of the legal
issues raised by his reliance on Amendment 706, this court
appointed counsel for Hood on September 15, 2008, who filed
a formal brief on October 6, 2008. The court heard oral argu-
ment on December 2, 2008, less than six months after Hood
first filed his notice of appeal.

The time periods for Brooks are even more compressed.
Brooks filed his notice of appeal pro se on August 6, 2008,
and his informal brief on September 15, 2008. On that same
date, counsel entered an appearance for Brooks and proceeded
to have Brooks’ appeal consolidated with Hood’s appeal
 UNITED STATES v. HOOD 21
because both appeals raised the same issue under Amendment
706. The court consolidated the two appeals, and Brooks filed
a supplemental formal brief on November 18, 2008. Again,
the court heard oral argument on December 2, 2008.

We cannot conclude that these processes denied either
Hood or Brooks due process.

For the reasons given, the district court’s orders denying
the motions of Hood and Brooks under 18 U.S.C.
§ 3582(c)(2) are

AFFIRMED.