UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4959
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JERMAINE VERNARD HAYES,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. N. Carlton Tilley, Jr.,
Senior District Judge. (1:07-cr-00376-NCT-1)
Submitted: August 13, 2009 Decided: August 27, 2009
Before MOTZ and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
David Bruce Freedman, CRUMPLER, FREEDMAN, PARKER & WITT,
Winston-Salem, North Carolina, for Appellant. Anna Mills
Wagoner, United States Attorney, Harry L. Hobgood, Assistant
United States Attorney, Greensboro, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Jermaine Vernard Hayes appeals his sentence. Hayes
pled guilty to one count of conspiracy to distribute fifty grams
or more of crack cocaine, in violation of 21 U.S.C.
§§ 841(b)(1)(A), 846 (2006). Because he had a prior felony drug
conviction, his statutory sentence was a minimum of twenty
years’ imprisonment. The Government moved for a downward
departure under 18 U.S.C. § 3553(e) (2006) * and U.S. Sentencing
Guidelines Manual § 5K1.1 based on Hayes’s substantial
assistance and recommended departing below the statutory minimum
sentence by forty percent, which would result in a sentence of
144 months. Hayes moved for an even lower sentence based on the
sentencing factors under 18 U.S.C. § 3553(a). The court denied
Hayes’s motion, granted the Government’s motion, and sentenced
Hayes to 144 months’ imprisonment. We affirm.
*
Section 3553(e) is titled “Limited authority to impose a
sentence below a statutory minimum” and states that
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 section 994 of title 28, United States
Code.
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Hayes argues the district court had authority to
consider the § 3553(a) sentencing factors and impose a sentence
below the twenty-year statutory minimum and below the 144-month
sentence recommended by the Government due to his substantial
assistance. Pure legal questions regarding sentencing are
reviewed de novo. United States v. Green, 436 F.3d 449, 456
(4th Cir. 2006). In Green, the court noted that when
determining what sentence was appropriate, it should consider
the § 3553(a) factors, but stated that “[t]he statutory limits
for both maximum and minimum sentences must be honored except as
statute otherwise authorizes.” Green, 436 F.3d at 456 n.*
(citing 28 U.S.C. § 3553(e)). In United States v. Hood, 556
F.3d 226, 234 n.2 (4th Cir. 2009), this court rejected the
argument Hayes now raises, concluding 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. 1999). . . . [T]he extent of a § 3553(e) departure is
based solely on the defendant’s substantial assistance and other
factors related to that assistance.” The court further stated
that “[o]nly Congress could authorize a departure 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
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prosecution of another person who has committed an offense.’”
Hood, 556 F.3d at 233 (quoting 28 U.S.C. § 3553(e)).
Accordingly, we find the district court correctly found it was
without authority to consider other factors than those in
§ 3553(e) and U.S.S.G. § 5K1.1 before ordering a sentence below
the statutory minimum. See United States v. A.B., 529 F.3d
1275, 1285 (10th Cir.), cert. denied, 129 S. Ct. 440 (2008);
United States v. Williams, 474 F.3d 1130, 1130-31 (8th Cir.
2007).
Hayes also argues the sentence was unreasonable. We
review a sentence for reasonableness, and “whether inside, just
outside, or significantly outside the Guidelines range,” this
court applies a “deferential abuse-of-discretion standard.”
Gall v. United States, 128 S. Ct. 586, 591 (2007). This court
first must “ensure that the district court committed no
significant procedural error.” Id. at 597. Only if the
sentence is procedurally reasonable can this court evaluate the
substantive reasonableness of the sentence, again using the
abuse-of-discretion standard of review. Id.; United States v.
Carter, 564 F.3d 325, 328 (4th Cir. 2009). We find no error and
conclude the sentence is reasonable.
Accordingly, we affirm the sentence. We dispense with
oral argument because the facts and legal contentions are
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adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED
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