                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                  ___________

                                Nos. 06-2296/2525
                                  ___________

United States of America,             *
                                      *
      Appellee/Cross-Appellant,       *
                                      * Appeals from the United States
      v.                              * District Court for the
                                      * Northern District of Iowa.
Lori Lynn Coyle,                      *
                                      *
      Appellant/Cross- Appellee.      *
                                 ___________

                             Submitted: March 13, 2007
                                Filed: October 29, 2007
                                 ___________

Before COLLOTON, BEAM, and GRUENDER, Circuit Judges.
                           ___________

COLLOTON, Circuit Judge.

       Lori Lynn Coyle pled guilty to conspiracy to distribute methamphetamine and
agreed to cooperate with the government. The applicable statutory minimum sentence
for her offense was 120 months’ imprisonment. The advisory sentencing range under
the United States Sentencing Guidelines, before any departure, was 135 to 168
months’ imprisonment. Based on Coyle’s provision of substantial assistance in the
investigation and prosecution of another person or persons, the government moved to
reduce her sentence pursuant to both USSG § 5K1.1 and 18 U.S.C. § 3553(e).
       In March 2004, the district court granted the motions and reduced Coyle’s
sentence to 36 months’ imprisonment. The government appealed, and we reversed,
holding that the extent of the sentence reduction was unreasonable. United States v.
Coyle, 429 F.3d 1192, 1193-94 (8th Cir. 2005). In that decision, we applied circuit
precedent from United States v. Dalton, 404 F.3d 1029 (8th Cir. 2005) (Dalton I), that
“[a]n extraordinary reduction must be supported by extraordinary circumstances.” Id.
at 1033. We observed that Dalton I said a reduction of the defendant’s sentence by
75% and 12 offense levels was “extraordinary,” and we reached the same conclusion
regarding the district court’s reduction of Coyle’s sentence by 73% and 14 offense
levels. Coyle, 429 F.3d at 1193. Noting that “[t]here is a good deal of room between
the government’s modest recommendation and the district court’s generous departure
to recognize this defendant’s assistance,” we remanded for resentencing. Id. at 1194.

       On remand, the district court expressed disagreement with this court’s decisions
concerning the extent of reductions or departures based on substantial assistance. In
particular, the court took issue with suggestions in Dalton I and United States v.
Saenz, 428 F.3d 1159 (8th Cir. 2005), that a 50% reduction in sentence should be
considered an “extraordinary reduction” that requires “extraordinary circumstances”
to justify it. In the district court’s view, statistics published by the United States
Sentencing Commission demonstrated that a 50% reduction in sentence for substantial
assistance was “ordinary” as an empirical matter, and that no extraordinary
circumstances should be required to justify that degree of reduction.

       At Coyle’s resentencing, the district court granted her a 50% reduction for
substantial assistance, finding that her assistance was “extraordinary” within the
meaning of our cases, but “not so extraordinary” as to justify the 73% reduction. The
district court characterized its decision on remand as a “conditional sentencing,” so
that Coyle could “appeal the sentence and try to give me more discretion to go back
up to the original 73 percent.” (S. Tr. at 38).



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       In addition to a 50% reduction based on substantial assistance, the district court
varied from the advisory guidelines based on Coyle’s post-offense rehabilitation.
Starting from an advisory guideline sentence of 135 months’ imprisonment, the court
reduced that sentence by half, to 67.5 months, based on Coyle’s substantial assistance.
The court then reduced the sentence by another 20%, or 13.5 months, to a final
sentence of 54 months, based on post-offense rehabilitation.

      Coyle appeals the sentence, arguing that this court should reconsider its
previous decision in light of the district court’s statistical analysis, and authorize a
substantial-assistance reduction of 73% and 14 offense levels. The government cross-
appeals, arguing that the district court was not authorized to reduce Coyle’s sentence
by 13.5 months based on post-offense rehabilitation.

       We decline to alter our previous holding that a substantial-assistance reduction
from 135 months’ to 36 months’ imprisonment was unreasonable. As the en banc
court recently explained in United States v. Burns, No. 04-2901, 2007 WL 2409866
(8th Cir. Aug. 27, 2007) (en banc), our use of the phrase “extraordinary reduction” in
previous substantial-assistance cases was not designed to invite an empirical inquiry
into the degree to which district judges around the country have reduced guideline
sentences based on the provision of substantial assistance. Rather, we have adopted
a proportionality principle, under which the degree of reduction should be justified by
“circumstances of a strength proportional to the extent of the deviation from
reductions envisioned by the guidelines’s structure.” Id. at *4. Thus, the en banc
court has rejected the district court’s criticism of our prior panel decisions, and we
likewise reject Coyle’s contention that we should revisit our holding that the district
court abused its discretion in the original sentencing.

      The government asserts in its cross-appeal that the district court’s decision to
reduce Coyle’s sentence to 54 months’ imprisonment was an abuse of discretion. The
government does not challenge the reduction from 135 months to 67.5 months, based

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on Coyle’s substantial assistance, but contends that the court was prohibited from
relying on Coyle’s post-offense rehabilitation, or any other factor beyond assistance
to law enforcement, to justify the final sentence of 54 months.

       We do not think the district court was prohibited altogether from considering
factors other than substantial assistance in fashioning Coyle’s sentence. When a
defendant is subject to a statutory minimum sentence, and the government moves to
reduce the sentence based on substantial assistance pursuant to 18 U.S.C. § 3553(e),
then the court may consider only the defendant’s assistance in making a reduction
below the statutory minimum. United States v. Williams, 474 F.3d 1130, 1131-32 (8th
Cir. 2007); United States v. Dalton, 478 F.3d 879, 881 (8th Cir. 2007) (Dalton II). In
both Williams and Dalton II, the low end of the defendant’s advisory guideline
sentence was equal to the statutory minimum, and we held that the court was limited
to assistance-related considerations in making a reduction below that level when it
was authorized to do so by the government’s substantial-assistance motion. In this
case, however, the low end of Coyle’s advisory guideline range is 135 months’
imprisonment, and there is a range of 15 months between the bottom of the advisory
range and the statutory minimum of 120 months’ imprisonment. Setting aside the
possibility of a reduction for substantial assistance, a district court in the
circumstances of Coyle’s case has authority under United States v. Booker, 543 U.S.
220 (2005), to consider whether a sentence below 135 months’ imprisonment, but at
or above 120 months, is warranted based on the factors set forth in 18 U.S.C.
§ 3553(a).

      To be sure, we have said that a post-Booker sentence normally should be
determined in a sequential manner, with the district court first determining the
applicable guideline range, then deciding whether any traditional guideline departures
are warranted, and finally considering the possibility of varying from the guideline
sentence based on the factors in § 3553(a). See United States v. Haack, 403 F.3d 997,
1003 (8th Cir. 2005). Dicta in Dalton II suggested that the “last step” in this sequence

                                          -4-
– consideration of the § 3553(a) factors – is “eliminated” if a traditional guidelines
departure takes the sentence down to a statutory minimum sentence. 478 F.3d at 881.
But Dalton II, like Williams, involved an advisory guideline range that equaled the
statutory minimum, so the court had no occasion to consider the situation presented
by Coyle, where the advisory sentence (before departures) exceeds the statutory
minimum. The result in Dalton II was dictated by the text of § 3553(e) and the
holding in Williams, without regard to the order in which the district court may have
considered § 3553(a) and § 3553(e).

       We see nothing in Booker or the relevant statutes that prevents a district court
in this situation from relying to some degree on both § 3553(a) and § 3553(e) to
fashion an appropriate sentence. The text of § 3553(e) prohibits a district court from
relying on factors other than assistance as a basis for sentencing below the statutory
minimum. Williams, 474 F.3d at 1131-32. But here, the district court had some
flexibility above the statutory minimum to determine Coyle’s sentence in accordance
with the factors in § 3553(a).

       The sequential ordering process that we have developed after Booker is not
dictated directly by Booker or any statute. It was fashioned by our court to maintain
the distinction between sentencing “departures” and “variances,” and to facilitate
meaningful appellate review. See United States v. Solis-Bermudez, No. 06-3548, 2007
WL 2669434, at *2 (8th Cir. Sept. 13, 2007). It helps to foster compliance with
Booker by ensuring that the district court properly considers the advisory guideline
sentence, which remains an important factor that a district court must “consider” and
“take into account.” Booker, 543 U.S. at 259, 264; Haack, 403 F.3d at 1003. But a
rigid ordering in this case more likely would frustrate the objectives of Booker and the
Sentencing Reform Act. And allowing the district court leeway to consider both §
3553(a) and § 3553(e) would neither eliminate the distinction between departures and
variances nor frustrate appellate review, if the court makes a clear record concerning
the basis for arriving at the final sentence.

                                          -5-
       A defendant with Coyle’s advisory guideline range who does not provide
substantial assistance is eligible for a sentence between 120 and 135 months’
imprisonment, so long as the ultimate sentence is “reasonable” with regard to
§ 3553(a). To foreclose a district court from exercising the same discretion when a
defendant provides substantial assistance would create tension with the requirement
of Booker that a sentence above a statutory minimum be governed by § 3553(a) as a
whole, not only by the sentencing guidelines. In addition, if the district court is
forbidden to give comparable consideration to § 3553(a) because a defendant has
provided substantial assistance, then there would develop an unwarranted disparity
between similarly-situated defendants. Whereas the non-cooperating defendant’s
sentence could be as low as 120 months’ imprisonment, the cooperating defendant’s
effective sentence (excluding credit for assistance) would be 135 months’
imprisonment – the bottom of the advisory guideline range. And if the non-
cooperating defendant provided substantial assistance after sentencing, then the
disparity would be presented starkly. The non-cooperating defendant could be
sentenced to 120 months’ imprisonment based on § 3553(a), but then could receive
a reduction for substantial assistance pursuant to Federal Rule of Criminal Procedure
35(e) from a starting point of 120 months. The cooperating defendant, who provided
substantial assistance before sentencing, would be deprived of a potential variance
from 135 to 120 months based on § 3553(a), and would receive a reduction for
substantial assistance from a higher starting point of 135 months.

       The law does not require this result. If a defendant in Coyle’s situation would
have been sentenced to 120 months’ imprisonment without her assistance to law
enforcement, then neither § 3553(e) nor Booker prevents the district court from
calculating a reduction for substantial assistance from a starting point of 120 months,
rather than 135 months. So long as the starting point is reasonable with regard to
§ 3553(a), and any reduction below the statutory minimum is based on substantial
assistance and appropriately proportional, see Burns, 2007 WL 2409866, at *4;
Williams, 474 F.3d at 1131-32, then the sentence would be in accordance with law.

                                         -6-
       In this case, however, the government rightly observes that the district court
relied on an impermissible factor when it applied § 3553(a). We held in United States
v. Jenners, 473 F.3d 894 (8th Cir. 2007), that evidence of “post-sentencing
rehabilitation” is “not relevant” and should “not be permitted at resentencing,”
because the district court “could not have considered that evidence at the time of the
original sentencing.” Id. at 899; see also United States v. McMannus, 496 F.3d 846,
851 (8th Cir. 2007). The record shows that the district court relied largely on Coyle’s
post-sentencing rehabilitation in justifying 13.5 months of the total reduction from the
advisory guideline range. (Resentencing Tr. 42-43). That was impermissible under
Jenners and McMannus. It appears that the court also relied to some extent on actions
taken by Coyle after her offense but before her first sentencing, (id. at 43; S. Tr. 20),
but we cannot be confident the sentence would have been the same if the court had
excluded evidence of post-sentencing conduct in accordance with Jenners. And the
court’s discussion of post-offense, pre-sentencing activity is not sufficient for us to
determine whether a variance on that basis would be reasonable, particularly given
that “[e]ven in cases where a rehabilitation is ‘dramatic and hopefully permanent’ a
district court cannot place too much emphasis on that fact.” United States v.
Robinson, 454 F.3d 839, 842-43 (8th Cir. 2006); see United States v. Grinbergs, 470
F.3d 758, 761-62 (8th Cir. 2006), petition for cert. filed (U.S. Mar. 8, 2007) (No. 06-
10045). Accordingly, we conclude that the sentence must be vacated and the case
remanded for resentencing in accordance with this opinion.
                             ______________________________




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