PUBLISHED


UNITED STATES COURT OF APPEALS
             FOR THE FOURTH CIRCUIT


UNITED STATES OF AMERICA,              
                 Plaintiff-Appellee,
                v.
MAURICE ANTHONY STEWART, a/k/a             No. 08-6575
Marlon Stewart, a/k/a Jamaican
Al,
             Defendant-Appellant.
                                       
        Appeal from the United States District Court
      for the Western District of Virginia, at Roanoke.
              Samuel G. Wilson, District Judge.
                   (7:02-cr-00086-sgw-3)

                 Argued: December 3, 2009

                Decided: February 17, 2010

Before MICHAEL, MOTZ, and GREGORY, Circuit Judges.



Vacated and remanded by published opinion. Judge Gregory
wrote the opinion, in which Judge Michael and Judge Motz
joined.


                         COUNSEL

ARGUED: Robert F. Rider, ROBERT F. RIDER, PLC, Roa-
noke, Virginia, for Appellant. Adam Benjamin Spencer,
2                      UNITED STATES v. STEWART
OFFICE OF THE UNITED STATES ATTORNEY, Char-
lottesville, Virginia, for Appellee. ON BRIEF: Julia C. Dud-
ley, United States Attorney, Roanoke, Virginia; Jean B.
Hudson, Assistant United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Charlottesville, Virginia,
for Appellee.


                               OPINION

GREGORY, Circuit Judge:

   In 2002, Maurice Anthony Stewart ("Stewart") was con-
victed of conspiracy to possess cocaine base and sentenced to
235 months. His sentence was subsequently reduced by forty-
eight months to 187 months total after the government made
a Federal Rule of Criminal Procedure 35 ("Rule 35") motion
based on his substantial assistance. On February 20, 2008,
Stewart filed a motion pursuant to 18 U.S.C. § 3582(c)(2),
asking the court to reduce his sentence in line with Amend-
ment 706 to the sentencing guidelines which modified the
offense levels for cocaine base sentencing. The district court
considered his motion and refused to reduce his sentence any
further because his 187-month sentence was one month below
the low end of the guidelines range under the amendment. On
appeal, Stewart argues the district court erred because he was
entitled to have a reduction in his sentence proportional to the
reduction he previously received for his substantial assistance
to the government.1 We agree that the district court should
    1
    We have encountered this same situation in two cases that resulted in
unpublished, per curiam opinions. See United States v. Russell, 322 Fed.
App’x 346 (4th Cir. 2009); United States v. Farabee, 316 Fed. App’x 258
(4th Cir. 2009). Both of those cases, citing United States v. Dunphy, 

 (4th Cir. 2009), held that the district court lacked authority to
consider sentences below the amended guidelines even though the district
court had previously granted a Rule 35 reduction for substantial assis-
tance. Unpublished opinions have no precedential value in our Circuit, and
for the reasons that follow in this opinion, we decline to follow their hold-
ings.
                      UNITED STATES v. STEWART                            3
have considered the reduction he previously received for his
cooperation when evaluating the section 3582(c) motion, and
therefore we vacate and remand the case to the district court.2

                                     I.

   On September 18, 2002, Stewart was indicted, along with
three co-defendants, for his role in a conspiracy to distribute
cocaine base in the Roanoke, Virginia area. He was charged
with conspiracy to possess with intent to distribute more than
fifty grams of cocaine base, possession with intent to distrib-
ute more than fifty grams of cocaine base, and criminal forfei-
ture. On December 2, 2002, Stewart pled guilty to Count One
of the indictment pursuant to a plea agreement with the gov-
ernment. In return for his plea of guilty, Stewart received a
recommended sentence at the low end of the guidelines range
and the chance to earn a substantial assistance motion from
the government to reduce that sentence at a later date. Stewart
was subsequently sentenced on May 15, 2003, to a term of
235-months imprisonment and five years of supervised
release. At the time of his sentencing with his offense level of
thirty-seven, the guidelines range for Stewart’s sentence was
between 235 and 293 months.

  On November 16, 2007, the government made a motion
pursuant to Rule 35 recommending that Stewart’s sentence be
reduced by forty-eight months as a result of his substantial
assistance to the government. The motion described how
Stewart had helped prevent a murder for hire scheme in
another district and had cooperated in the prosecution of the
  2
    Stewart additionally argues that under our precedent in United States
v. Carter, 

 (4th Cir. 2009), the denial of his motion to reduce
his sentence without explicit consideration of the 18 U.S.C. § 3553(a) sen-
tencing factors or enunciation of the court’s reasoning was an abuse of dis-
cretion. We held directly to the contrary in United States v. Legree, 

 (4th Cir. 2000). Because we vacate the district court’s decision
for failure to consider the prior Rule 35 reduction Stewart received, we do
not consider his procedural argument.
4                     UNITED STATES v. STEWART
case of United States v. Tameka Cooper-Hall. The district
court granted this motion on November 28, 2007, and modi-
fied Stewart’s sentence to 187 months imprisonment.

   On February 20, 2008, Stewart filed a motion pursuant to
18 U.S.C. § 3582(c)(2), asking the court to reduce his sen-
tence in line with Amendment 706 to the sentencing guide-
lines which modified the offense levels for cocaine base
sentencing.3 Under the new guidelines, Stewart’s sentencing
range, without the forty-eight month reduction, was between
188 and 235 months. The district court denied his motion
after calculating the range under the new guidelines, stating
in its order "[t]he court finds that the sentence of 187 months,
imposed pursuant to Order entered November 28, 2007 grant-
ing the United States’ substantial assistance motion, remains
appropriate."4 J.A. 22.5 This appeal followed after a timely
motion to extend time to file notice of appeal was granted.

                                    II.

   This Court reviews a district court’s decisions on sentenc-
ing for abuse of discretion, including its decisions on whether
to reduce a sentence under section 3582(c)(2). United States
v. Heath, 

, 266 (4th Cir. 2009).

                                    A.

  A motion to reduce a sentence may be made under 18
U.S.C. § 3582(c)(2) "upon motion of the defendant or the
Director of the Bureau of Prisons" or sua sponte by the court.
18 U.S.C.A. § 3582(c)(2) (West 2009). Such a motion is
    3
     The government made no responsive filing to Stewart’s motion to
reduce his sentence.
   4
     It does not appear that an in-court hearing was held to consider the
motion, and this Court does not have any further information concerning
the district court’s reasoning.
   5
     J.A. __ refers to the Joint Appendix filed by the parties in this case.
                     UNITED STATES v. STEWART                         5
proper for "a defendant who has been sentenced to a term of
imprisonment based on a sentencing range that has subse-
quently been lowered by the Sentencing Commission." Id. In
considering the motion, "the court may reduce the term of
imprisonment, after considering the factors set forth in section
3553(a) to the extent that they are applicable, if such a reduc-
tion is consistent with applicable policy statements issued by
the Sentencing Commission." Id. That the court "may reduce"
the sentence is important; the decision about whether to
reduce a sentence is discretionary on the part of the district
court. The court is not required to reduce a defendant’s sen-
tence, even where the current sentence is above the amended
guidelines range.

   The policy statement pertinent to a motion under section
3582(c) is section 1B1.10 of the Sentencing Guidelines Man-
ual. That statement requires a court considering whether a
reduction is proper to "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."6 U.S. Sentencing Guidelines Manual
§ 1B1.10(b)(1) (2009). Comparing the amended guidelines
range and the defendant’s sentence, the court may then
impose a reduction in the sentence if the amendment has
changed the sentencing range. United States v. Lindsey, 

, 244 (4th Cir. 2009) (holding that in order to con-
sider a motion to reduce a sentence based on an amendment
of the guidelines, the defendant’s guidelines range must have
been changed by the amendment). Importantly, the recalcula-
tion of the guidelines and the reduction of the sentence are not
considered a full resentencing by the court, and the district
court must leave in place all other guidelines applications
such as any enhancements or reductions in offense level for
  6
   Subsection (c) of § 1B1.10 lists the amendments for which a motion to
reduce a sentence is permissible. Amendment 706 is one of the listed
amendments.
6                  UNITED STATES v. STEWART
offense characteristics. U.S. Sentencing Guidelines Manual
§ 1B1.10(b)(1).

   In general, the district court may not, upon a motion for a
reduction of sentence, sentence the defendant to a term of
imprisonment that is below the amended guidelines range.
U.S. Sentencing Guidelines Manual § 1B1.10(b)(2)(A); see
also United States v. Dunphy, 

, 257 (4th Cir.
2009) (holding that when a defendant’s original sentence is
within the guidelines, the district court lacks the jurisdiction
to reduce that sentence below the amended guidelines upon
motion for reduction of sentence under section 3582(c)(2)).
However, the exception to the rule is when the "original term
of imprisonment imposed was less than the term of imprison-
ment provided by the guidelines range applicable to the
defendant at the time of sentencing, a reduction comparably
less than the amended guidelines range . . . may be appropri-
ate." U.S. Sentencing Guidelines Manual § 1B1.10(b)(2)(B).
As guidance, the commentary to the guidelines provides:

    For example, in a case in which: (A) The guideline
    range applicable to the defendant at the time of sen-
    tencing was 70 to 87 months; (B) the defendant’s
    original term of imprisonment imposed was 56
    months (representing a downward departure of 20
    percent below the minimum term of imprisonment
    provided by the guideline range applicable to the
    defendant at the time of sentencing); and (C) the
    amended guideline range determined under subsec-
    tion (b)(1) is 57 to 71 months, a reduction to a term
    of imprisonment of 46 months (representing a reduc-
    tion of approximately 20 percent below the mini-
    mum term of imprisonment provided by the
    amended guideline range determined under subsec-
    tion (b)(1)) would amount to a comparable reduction
    and may be appropriate.

Id. § 1B1.10(b)(2)(B) cmt 3. Thus the guidelines explicitly
provide for reducing a below-guidelines sentence under sec-
                   UNITED STATES v. STEWART                   7
tion 3582(c)(2) when that sentence resulted from a departure
at the time of sentencing, even when that sentence is below
the current guidelines range.

   We recently held that it was proper for the district court to
reduce a defendant’s sentence below the amended guidelines
where the defendant received a below-guidelines sentence due
to a departure for substantial assistance to the government
under section 5K1.1. United States v. Fennell, No. 08-7238,
__ F.3d __, 

 (4th Cir. Jan. 21,
2010). The only case where the guidelines provide that reduc-
tion of a below-guidelines sentence would not be proper is "if
the original term of imprisonment constituted a non-guideline
sentence determined pursuant to 18 U.S.C. 3553(a) and
United States v. Booker, 

 (2005), a further reduc-
tion generally would not be appropriate." U.S. Sentencing
Guidelines Manual § 1B1.10(b)(2)(B).

                              B.

   The question before this Court, therefore, is what consti-
tutes the "original term of imprisonment" for a motion for a
reduction of sentence in a case such as Stewart’s where the
sentence has been amended on a Rule 35 motion, not by any
departures under the guidelines at the time the defendant was
first sentenced by the court. Rule 35 provides that a defen-
dant’s sentence may be reduced, upon motion of the govern-
ment, when "the defendant, after sentencing, provided
substantial assistance in investigating or prosecuting another
person." Fed. R. Crim. Pro. 35(b)(1). Similar to a motion to
reduce a sentence under section 3582(c)(2), a Rule 35 motion
is "addressed to the sound discretion of the district court."
United States v. Stumpf, 

, 946 (4th Cir. 1973)
(per curiam). In other words, the district court exercises dis-
cretion over whether to grant the government’s motion and,
if so, how much to reduce the sentence.
8                     UNITED STATES v. STEWART
  The government and Stewart agree and argue that "original
sentence" in section 1B1.10(b) refers to the sentence the
defendant is serving at the time he makes his section
3582(c)(2) motion.7 They argue that because reductions in
sentence under section 5K1.1 and Rule 35 are not mentioned
by the guidelines in reference to situations where the sentence
may not be reduced upon section 3582(c)(2) motion, the
canon of expresio unius est exclusio alterius counsels that
such a reduction is permitted.

   We agree with the government and Stewart. First, section
3582(c)(2) and section 1B1.10 do not suggest that original
sentence must be the first sentence the defendant receives.
The policy statement for motions to reduce a sentence makes
clear the goals of allowing such a motion: to take account of
amendments to the guidelines made retroactive by Congress
and determine whether a defendant should be able to take
advantage of a post-hoc reduction in his sentence in line with
the policy behind the amendment. U.S. Sentencing Guidelines
Manual § 1B1.10(a)(1). The process mandated by the guide-
lines involves comparing the "original sentence" and the
amended guidelines range to determine whether policy coun-
sels that the reduction be given. To consider the defendant’s
first sentence as the comparison for the sentence under the
amended guidelines would be illogical when the defendant is
serving an entirely different sentence. It would go against the
guidance of section 1B1.10(b) to use as a comparison to a
sentence the defendant is not serving because the court could
not determine whether a reduction is in fact warranted.

   Additionally, the guidelines make clear two situations when
such a reduction is not possible: non-guidelines sentences
based on Booker and or the section 3553(a) sentencing fac-
tors. U.S. Sentencing Guidelines Manual § 1B1.10(b)(2)(B).
    7
   Further, upon request of the Court at oral argument, the government
has submitted a letter confirming that its position on the meaning of "orig-
inal sentence" is shared by the Department of Justice as a whole.
                   UNITED STATES v. STEWART                   9
Rule 35 reductions are not mentioned as cases where a sen-
tence cannot be reduced below the guidelines, so under expre-
sio unius est exclusio alterius one would assume that such a
reduction is not prohibited and is instead within the general
discretion of the district judge. The commentary to the guide-
lines even mentions the situation we have here, where the sen-
tence the defendant is currently serving is one month below
the amended guidelines range, as a candidate for further
reduction.     U.S.      Sentencing     Guidelines     Manual
§ 1B1.10(b)(2)(B) cmt 3. This demonstrates that not only did
Congress contemplate allowing sentences to be reduced
below the amended guidelines range, but that also the consid-
ered reduction is possible even when the defendant is cur-
rently serving a below amended guidelines sentence.

   Finally, the phrase "original sentence" certainly does not
refer only to the very first sentence the defendant receives in
cases where that sentence has ceased to exist. A most egre-
gious example, and one mentioned by the government, would
be when a defendant appeals on the basis that his sentence
was procedurally or substantively unreasonable, and we
vacate that sentence. If that defendant, after his resentencing,
were to bring a motion under section 3582(c)(2), the district
court would certainly not look at the first sentence that we had
declared unlawful. Instead, the original sentence would be the
sentence that the defendant was currently serving. This is the
same situation here, where Stewart’s first sentence of 235
months has ceased to exist after the granting of the govern-
ment’s Rule 35 motion. Therefore, we hold that when a defen-
dant is serving a below-guidelines sentence as a result of a
Rule 35 motion by the government, if the defendant makes a
motion under section 3582(c)(2), his sentence may be further
reduced comparable to the previous reduction received.

   Our recent precedent in Fennell, counsels this result. There
we held that it is proper for the district court to consider a
reduction in sentence below the amended guidelines equal to
the prior reduction granted to the defendant for a departure at
10                 UNITED STATES v. STEWART
sentencing under section 5K1.1. Fennell, 2010 U.S. App.
LEXIS 1326. Circuit courts have consistently treated motions
for reductions in sentence under section 5K1.1 and Rule 35 as
bound by the same rules and standards. See, e.g., United
States v. Mulero-Algarin, 

, 38 (1st Cir. 2008) ("In
charting the contours of substantial assistance under Rule
35(b), courts have consistently looked to the virtually identi-
cal language contained in USSG § 5K1.1."); In re Sealed
Case No. 97-3112, 

, 133 (D.C. Cir. 1999) (not-
ing Rule 35(b), section 3553(e), and section 5K1.1 are to be
read "in pari materia"); United States v. Lopez, 

,
523 (5th Cir. 1994) (describing Rule 35(b) as "§ 5k1.1’s post-
sentencing analog"). Likewise, we see no reason here to treat
defendants who benefit from a reduction in sentence via a
departure at the time of sentencing differently from those who
provide information to the government later. Indeed, the prac-
tice of either deferring sentencing and seeking a reduction
under section 5K1.1 or sentencing and later filing a Rule 35
motion varies from district to district, even within states.
Those defendants who were unable to benefit from a section
5K1.1 departure initially – whether because they did not yet
have the information or because of the practice of the U.S.
Attorney’s office prosecuting them – should not be prejudiced
when they later provide valuable information to the govern-
ment.

                              C.

   Applying the dictates of section 1B1.10, it appears that
Stewart may be eligible for a reduction in his sentence. As
detailed above, Stewart is currently serving a sentence of 187
months after receiving a forty-eight month reduction in sen-
tence, representing a twenty percent reduction in his first sen-
tence of 235 months. The current cocaine base guidelines for
his offense level recommend a range between 235 and 188
months. The district court summarily denied Stewart’s motion
to reduce his sentence, noting only that his sentence of 187
months remained appropriate. Because it is unknown whether
                   UNITED STATES v. STEWART                  11
the district court properly considered the current sentence as
the "original sentence" described in section 1B1.10(b), we
vacate the district court’s decision and remand this case to the
district court.

   Stewart and the government argue that because the court
granted the government’s motion in November 2007 and
reduced his sentence by forty-eight months, he is entitled to
a proportional reduction in his sentence under the new guide-
lines. We do not reach this question given the discretion
vested in the district court to evaluate the policy behind the
sentencing guidelines and to determine whether reductions in
sentence are appropriate.

                              III.

   Because a district court considering a motion to reduce a
sentence, even one which is below the amended guidelines,
under section 3582(c)(2) must treat the sentence the defendant
is currently serving as the "original term of imprisonment,"
U.S. Sentencing Guidelines Manual § 1B1.10(b), we vacate
the decision of the district court and remand the case for
reconsideration of Stewart’s section 3582(c)(2) motion in
light of the government’s prior Rule 35 motion.

                                VACATED AND REMANDED