Filed: Oct. 01, 2010
Latest Update: Feb. 21, 2020
Summary: ON REHEARING UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-7908 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. KENNETH O. LANGLEY, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at New Bern. Louise W. Flanagan, Chief District Judge. (4:04-cr-00073-FL-1) Submitted: August 10, 2010 Decided: October 1, 2010 Before TRAXLER, Chief Judge, and MICHAEL * and SHEDD, Circuit Judges. Vacated and remanded by unpu
Summary: ON REHEARING UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-7908 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. KENNETH O. LANGLEY, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at New Bern. Louise W. Flanagan, Chief District Judge. (4:04-cr-00073-FL-1) Submitted: August 10, 2010 Decided: October 1, 2010 Before TRAXLER, Chief Judge, and MICHAEL * and SHEDD, Circuit Judges. Vacated and remanded by unpub..
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ON REHEARING
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-7908
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
KENNETH O. LANGLEY,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at New Bern. Louise W. Flanagan,
Chief District Judge. (4:04-cr-00073-FL-1)
Submitted: August 10, 2010 Decided: October 1, 2010
Before TRAXLER, Chief Judge, and MICHAEL * and SHEDD, Circuit
Judges.
Vacated and remanded by unpublished per curiam opinion.
Keith Alan Williams, KEITH A. WILLIAMS, PA, Greenville, North
Carolina, for Appellant. Anne Margaret Hayes, Assistant United
States Attorney, Raleigh, North Carolina, for Appellee.
*
The opinion is filed by a quorum pursuant to 28 U.S.C.
§ 46(d). Judge Michael did not participate.
Unpublished opinions are not binding precedent in this circuit.
2
PER CURIAM:
Kenneth Langley filed a petition seeking rehearing of
our opinion affirming the district court’s grant of Langley’s 18
U.S.C. § 3582(c)(2) (2006) motion. In his petition, Langley
asserted that, in affirming the district court’s order, we
overlooked a case we had recently returned to the oral argument
calendar, United States v. Fennell, No. 08-7238. We granted
Langley’s petition for panel rehearing on July 26, 2010.
Because an understanding of the procedural history of Fennell is
necessary to determination of this petition, we outline it here:
Fennell pled guilty to one count of conspiracy to
distribute and possess with the intent to distribute more than
50 grams of cocaine base. See United States v. Fennell, 592
F.3d 506, 507 (4th Cir. 2010). Fennell’s offense level was
originally calculated at twenty-nine, with a criminal history
category of IV, resulting in a guidelines range of 121 to 151
months’ imprisonment.
Id. The Government moved for a downward
departure under U. S. Sentencing Guidelines Manual (USSG)
§ 5K1.1, p.s. and 18 U.S.C. § 3553 (2006), based on Fennell’s
substantial assistance to the Government. The district court
granted the motion, and sentenced Fennell to ninety-seven
months’ imprisonment.
Id. Fennell later filed an 18 U.S.C.
§ 3582(c)(2) motion seeking to receive the benefit of Amendment
706 to the guidelines.
Id. In his motion, Fennell argued that
3
his actual sentence represented approximately a twenty percent
downward departure from the bottom of his original guideline
range of 121 months. Id. Fennell requested a comparable
reduction of twenty percent from the new guideline range yielded
by his new offense level of twenty-seven, which Fennell
suggested was 100 to 125 months.
Id.
In the resentencing report, the probation officer
agreed that Fennell’s new total offense level was twenty-seven,
but, in light of the statutory minimum sentence for his offense,
Fennell’s new guideline range would be 120 to 125 months, rather
than the 100 to 125 month range proposed by Fennell.
Fennell,
592 F.3d at 507-08. The report concluded that a twenty percent
reduction from the bottom of the new guideline range would yield
a ninety-six month sentence, only one month less than Fennell’s
original sentence.
Id. at 508.
Fennell disagreed with the probation officer’s
recommendation, again contending that the appropriate guideline
range was 100 to 125 months. Fennell, 592 F.3d at 508.
Alternatively, Fennell argued that the district court could
perform a comparability analysis based on the top of the
guidelines range recommended by the probation officer.
Fennell’s original sentence was a thirty-six percent reduction
from the top of his original 125 to 151 month guideline range; a
thirty-six percent reduction from the top of the new guideline
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range of 120 to 125 months would yield a sentence of eighty
months’ imprisonment. Id.
The district court adopted the recommendation of the
resentencing report, granted Fennell’s motion, and limited his
reduction in sentence to one month, for a reduced sentence of
ninety-six months’ imprisonment.
Fennell, 592 F.3d at 508. In
explaining the basis for its sentence, the district court stated
that it did not believe it had the discretion or authority to
grant a reduction greater than one month, as this number was
twenty percent less than the bottom of Fennell’s new guideline
range of 120 to 125 months’ imprisonment, which resulted from
the statutorily prescribed ten-year minimum imprisonment term.
Id. Fennell appealed, contending that the district court erred
in determining that it lacked the discretion to sentence Fennell
below ninety-six months’ imprisonment.
Id. We calendared the
case for oral argument.
In his timely rehearing petition, Langley argued that
due to the similarities between the two cases — both offenses
carried a statutory minimum of ten-years imprisonment, both
defendants’ § 3582(c)(2) reductions were limited to one month,
and the same judge presided over both cases — we should vacate
our opinion and place his appeal in abeyance pending the outcome
of Fennell. We agreed in part and deferred consideration of
Langley’s rehearing petition pending our decision in Fennell;
5
however, we declined at that point to vacate our earlier
opinion. Following issuance of this court’s decision in
Fennell, Langley’s case has been removed from abeyance, and his
petition for panel rehearing was granted. His arguments on
rehearing are accordingly now ripe for review.
In Fennell, we first noted that Fennell did not
challenge on appeal the district court’s finding that Fennell’s
amended guideline range was 120 to 125 months’ imprisonment.
Nevertheless, we determined that the district court correctly
calculated the appropriate amended guideline range, based on the
120 month statutory minimum sentence faced by Fennell. See
Fennell, 592 F.3d at 508 n.1. Thus, to the extent that Langley
argues that the district court should have disregarded the 120
month mandatory minimum and found that his amended guideline
range was 97 to 121 months, this argument is without merit.
However, the remaining issues raised by Langley may
afford him some relief, in light of our holding in Fennell. In
Fennell, we concluded that the district court erred in
determining that there was only one permissible method of
calculating a sentence reduction under § 3582(c)(2). 592 F.3d
at 509. Instead, we held that “a sentencing court may use any
reasonable method in calculating a downward departure during
resentencing and is not limited by any specific method
previously used.”
Id. Therefore, the district court erred when
6
it found that “it was bound to use the identical percentage-
based reduction method that apparently was employed at the
initial sentencing.” Id. at 511 (emphasis omitted).
Because the district court did not hold a resentencing
hearing prior to granting Langley’s § 3582(c)(2) motion, it is
impossible to know whether the district judge, in granting
Langley’s motion, limited her reduction to one month on the
erroneous belief that she did not have the authority to use an
alternate method to calculate a comparable reduction to
Langley’s sentence. However, the fact the district judge
expressed this view only two months prior to Langley’s
resentencing — when she resentenced Fennell — strongly suggests
this to be the case. Accordingly, we vacate Langley’s sentence
and remand for resentencing consistent with United States v.
Fennell, 592 F.3d 506 (4th Cir. 2010). In light of this
disposition, we deny Langley’s motion to expedite.
In so doing, we wish to emphasize that we offer no
opinion as to the particular method to be utilized by the
district court when calculating an Langley’s amended sentence on
remand, or the appropriate outcome of that proceeding. Instead,
we remand to allow the district court to exercise its discretion
“to use any of the reasonable methods . . . to calculate a
sentence comparable to that previously imposed, in light of the
purpose and effect of Amendment 706.” Id.
7
We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials
before the court and argument would not aid the decisional
process.
VACATED AND REMANDED
8
