                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 15-6966


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

           v.

ALBERT EUGENE HARDY, JR.,

                Defendant – Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Asheville. Martin K. Reidinger,
District Judge. (1:07-cr-00010-MR-1)


Argued:   October 7, 2015                   Decided:    February 8, 2016


Before TRAXLER,   Chief     Judge,   and   KING   and   THACKER,   Circuit
Judges.


Vacated and remanded by unpublished per curiam opinion.             Chief
Judge Traxler wrote a dissenting opinion.


ARGUED: Joshua B. Carpenter, FEDERAL DEFENDERS OF WESTERN NORTH
CAROLINA, INC., Asheville, North Carolina, for Appellant.     Amy
Elizabeth Ray, OFFICE OF THE UNITED STATES ATTORNEY, Asheville,
North Carolina, for Appellee.    ON BRIEF: Ross Hall Richardson,
Executive Director, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA,
INC.,   Charlotte,  North   Carolina,   for   Appellant.     Jill
Westmoreland Rose, Acting United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Asheville, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.




                                2
PER CURIAM:

        Albert Eugene Hardy, Jr., appeals from the June 2015 order

entered in the Western District of North Carolina, granting him

a sentence reduction from 168 to 140 months under 18 U.S.C.

§ 3582(c)(2).         Hardy contends that the district court erred in

failing to recognize that it could have reduced his sentence to

as low as 98 months.           The government counters that the court

simply declined to award Hardy a larger reduction.                  As explained

below, the record does not reveal that the court appreciated the

scope    of   its     authority,   and    it   also   shows    that   the   court

committed legal error.         We therefore vacate and remand.



                                         I.

     On    May   3,    2007,   Hardy     pleaded   guilty     to   conspiracy   to

possess with intent to distribute cocaine base, in contravention

of 21 U.S.C. § 846.        Prior to the guilty plea, the United States

Attorney filed a notice, pursuant to 21 U.S.C. § 851, advising

that the government would utilize Hardy’s prior North Carolina

drug conviction to seek a 240-month mandatory minimum sentence,

pursuant to 21 U.S.C. § 841(b)(1)(A).

     The probation officer thereafter prepared the presentence

report and recommended that Hardy be sentenced to 240 months.

The PSR reached its mandatory minimum recommendation by starting

with a base offense level of 32, predicated on a drug weight of

                                          3
approximately 370 grams of cocaine base.               The offense level was

then adjusted two levels upward for reckless endangerment, less

three levels for acceptance of responsibility, resulting in a

final offense level of 31.          Based on the final offense level and

Hardy’s   criminal        history    category     of    V,    the      Sentencing

Guidelines advised a sentencing range of 168 to 210 months.                    The

§ 851 notice, however, triggered the mandatory minimum, making

his Guidelines sentence 240 months.           See USSG § 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.”). 1

      Prior    to   the   January   30,    2008   sentencing        hearing,   the

government filed a motion for a downward departure, pursuant to

18 U.S.C. § 3553(e), recognizing therein that Hardy had provided

substantial assistance to the authorities. 2                The district court



      1The PSR relied on the 2007 edition of the Sentencing
Guidelines.    We otherwise refer to the 2014 edition, the
Guidelines edition applicable to Hardy’s 18 U.S.C. § 3582(c)(2)
motion.
      2Pursuant to § 3553(e), a prosecutor’s downward-departure
motion rewards a cooperating defendant by conferring upon the
sentencing court “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.”   The sentence must then be imposed “in accordance
with the guidelines and policy statements issued by the
Sentencing Commission.” Id.; see USSG § 5K1.1.



                                       4
granted     the       government’s         substantial-assistance                   motion     and

imposed a sentence of 168 months.                    The sentence thus fell at the

low end of the otherwise applicable Guidelines range of 168 to

210   months,        and    it   equaled      70%    of      the    240-month         mandatory

minimum.

      Seven     years       later,    on     April     23,      2015,    Hardy       filed     his

motion    in    the     district       court       under     18    U.S.C.      § 3582(c)(2),

seeking     a       sentence     reduction         under        Amendment       750     to     the

Guidelines.            In     response,      the     probation          officer        filed     a

memorandum with the court on April 27, 2015, advising that Hardy

was ineligible for relief under Amendment 750. 3                               The probation

officer    further          advised    the     court,      however,          that    Hardy     was

eligible for a sentence reduction under Amendment 782. 4                                     More

specifically, the probation officer stated that Hardy’s original

sentence       of    168    months     was     equal       to     70%   of    the     240-month

statutory       minimum.         The       probation        officer      then        calculated

Hardy’s revised Guidelines range as 140 to 175 months.                                 Finally,


      3Amendment 750 (effective November 1, 2011) altered the
weight ranges for cocaine base offenses in the Guidelines, but
not enough to impact Hardy’s base offense level.    On appeal,
Hardy does not challenge the court’s denial of relief under
Amendment 750.
      4Like Amendment 750, Amendment 782 (effective November 1,
2014) changed the applicable weight ranges for cocaine base
offenses in the Guidelines.     Unlike Amendment 750, however,
Amendment 782 had the effect of lowering Hardy’s base offense
level.



                                               5
pursuant    to    the    applicable      Guidelines       policy     statement,        the

probation    officer       recommended         a    comparable     reduction      to    98

months.     See USSG § 1B1.10(b)(2)(B).                The recommended 98 months

was 70% of 140 months, or 70% of the low end of Hardy’s revised

Guidelines range.         See id. § 1B1.10(c) cmt. n.4(B).

     On    June   1,     2015,    the    government       agreed    that    Hardy      was

eligible for a sentence reduction under Amendment 782, and also

acknowledged that the district court could lower his sentence to

the 98 months recommended by the probation officer.                          Moreover,

the government expressly consented to such a reduction.                            Hardy

responded the very next day, requesting that the court award him

the unopposed sentence reduction to 98 months.

     By its one-page order (AO Form 247) of June 17, 2015, the

district    court       granted   Hardy’s          § 3582(c)(2)    motion    in    part,

reducing his sentence to 140, rather than 98 months.                        See United

States v. Hardy, No. 1:07-cr-00010 (W.D.N.C. June 17, 2015), ECF

No. 72 (the “Order”).             In so ruling, the court explained that

Hardy’s “Original Guideline Range” was 240 months, and that his

“Amended Guideline Range” was also 240 months.                      From the list of

checkbox options contained in the Order, the court selected the

option     specifying      that    the    reduced        sentence    was    based      on

Amendment 782.      The court left blank an option that reads, “The

reduced sentence is within the amended guideline range.”                                It

also did not mark another option that reads, “The previous term

                                           6
of   imprisonment       imposed      was   less       than    the        guideline     range

applicable to the defendant at the time of sentencing and the

reduced sentence is comparably less than the amended guideline

range.”      Finally, the court checked the box designated “Other,”

and explained:

       Defendant’s [original] sentence was enhanced pursuant
       to a § 851 notice.     His cooperation was recognized
       b[y] allowing him a reduction to a sentence at the low
       end of the Guideline Range without consideration of
       the § 851 notice. Defendant’s reduced sentence herein
       is likewise at the low end of the revised Guideline
       Range after Amendment 782, without consideration of
       the § 851 notice.

       Hardy has filed a timely notice of appeal of the district

court’s sentence reduction decision.                     We possess jurisdiction

pursuant to 28 U.S.C. § 1291.



                                           II.

       Absent   an     abuse    of   discretion,         we       will    not    disturb   a

district     court’s    sentence        reduction     decision           under   18    U.S.C.

§ 3582(c)(2).        See United States v. Mann, 709 F.3d 301, 304 (4th

Cir. 2013).          A district court abuses its discretion when it

commits an error of law.             See United States v. Rybicki, 96 F.3d

754,   757    (4th    Cir.     1996).      An    error       of    law    may    include   a

district     court’s    misapprehension          of    “the       scope    of    its   legal

authority under § 3582(c)(2),” an issue that we review de novo.

See Mann, 709 F.3d at 304.


                                            7
                                              III.

       Hardy contends that the district court erred in failing to

recognize its authority under the Sentencing Commission’s policy

statement and in “calculating the extent of a ‘comparably less’

reduction”      below       his    amended        Guidelines         range.        See    Br.    of

Appellant 8.              Put succinctly, Hardy maintains that the court

failed    to    appreciate          that     it       was    authorized       to   reduce       his

sentence       to    98    months     (70%       of    the    low     end    of    his   amended

Guidelines range).            The United States Attorney agrees that the

court was authorized to reduce Hardy’s sentence to 98 months.

The prosecution contends, however, that the court was aware of

that authority and instead “explicitly declined to impose the

shortest prison sentence it could.”                            See Br. of Appellee 14.

Hardy’s sentence reduction from 168 to 140 months, according to

the    government,           was    neither           erroneous        nor    an     abuse       of

discretion.

       The Supreme Court’s decision in Dillon v. United States

explained the “two-step approach” that a district court must

undertake when resolving a § 3582(c)(2) motion.                                   See 560 U.S.

817,     827    (2010).            First,         “the       court    [must]       follow       the

[Sentencing] Commission’s instructions” in the policy statement

spelled    out       in    Guidelines        section         1B1.10    “to    determine         the

prisoner’s          eligibility      for     a     sentence         modification         and    the

extent    of    the       reduction    authorized.”              Id.    (emphasis         added).

                                                  8
Second,    the    court     must       “consider         any      applicable         [18    U.S.C.]

§ 3553(a) factors and determine whether, in its discretion, the

reduction authorized by reference to the policies relevant at

step one is warranted in whole or in part under the particular

circumstances of the case.”                  Id.

     Consistent          with     Dillon,          the     district           court      initially

determined       that    Hardy     was       eligible        for    a     sentence       reduction

under Amendment 782.             The court failed, however, to specify the

extent     of     the      permissible             reduction            authorized          by    the

Commission’s            policy         statement             in      Guidelines             section

1B1.10(b)(2)(B).          That policy statement authorizes a “[sentence]

reduction comparably less than the amended guideline range” when

the defendant was originally sentenced below a mandatory minimum

based on his substantial assistance to the authorities.                                     See id.

(emphasis added).          Because Hardy was originally sentenced to 168

months (70% of 240 months), a “comparably less” sentence under

Amendment 782 would be 98 months, or 70% of the low end of his

amended    Guidelines       range.            See      id.     § 1B1.10(c)           cmt.    n.4(B)

(providing       for    percentage       reduction           from       low    end    of    amended

Guidelines       range).         Put    simply,        the        court    did     not     complete

Dillon’s    first       step.          The    court’s        failure          to   identify      the

permissible reduction to 98 months strongly suggests that it did

not appreciate the scope of its authority.                              See United States v.

Smalls,    720     F.3d    193,        196    (4th       Cir.      2013)      (observing         that

                                                   9
“contrary indication[s]” may “rebut the . . . presumption that

the district court considered all relevant factors in ruling on

[a] § 3582(c)(2) motion”).

        In    pressing      the    contrary          assertion    —    that   the    district

court        fully    understood         the     scope    of     its   authority      —     the

government emphasizes two aspects of the form Order.                                First, it

points to the court’s explanation — accompanying the “Other” box

— that Hardy’s reduced sentence was “likewise at the low end of

the revised Guideline Range after Amendment 782.”                              Second, the

government          contends      that    the    court     must    have    recognized      its

authority to impose a lesser sentence because it failed to check

the    box     indicating      that      it     was    granting    a   “comparably        less”

reduction.

       There are other aspects of the Order, however, that serve

to undermine the government’s contention.                         Most importantly, the

Order    contains        an    error       of    law:       it    states      that    Hardy’s

“Original       Guideline         Range”       and    “Amended    Guideline     Range”      are

both    “240        months”    (the      mandatory       statutory      minimum).         That

statement runs contrary to the Guidelines’ explicit directive

that “the amended guideline range shall be determined without

regard        to”     the     240-month         mandatory        minimum.           See    USSG

§ 1B1.10(c); see also United States v. Williams, No. 15-7114, __

F.3d __, slip op. at 23 (4th Cir. Dec. 14, 2015) (“Although

Guidelines section 5G1.1(b) would otherwise turn the 240-month

                                                 10
mandatory minimum into Williams’s revised ‘guideline sentence,’

the revisions made to Guidelines section 1B1.10 by Amendment 780

bar the sentencing court from calculating his amended range in

that manner.”).            In this case, Hardy’s amended Guidelines range

was not 240 months, as the district court stated in the Order,

but   was    140     to    175    months,   as     determined      by    the     probation

officer. 5

      In     these    circumstances,        we     are     not   persuaded       that   the

district     court        appreciated   the       scope    of    its   authority    under

§ 3582(c)(2).         Furthermore, the court committed legal error in

ruling on Hardy’s sentence reduction motion.                           We are therefore

constrained to vacate the Order and remand.



                                            IV.

      Pursuant       to     the   foregoing,       we     vacate   the    judgment      and

remand      for    such     other    and    further        proceedings      as    may    be

appropriate.

                                                                 VACATED AND REMANDED




      5Prior to the issuance of our Williams decision a few weeks
ago, there would have been a viable contention that the 240-
month mandatory minimum was the correct amended Guidelines range
for a prisoner in Hardy’s position.     In Williams, however, we
squarely rejected that proposition.



                                            11
TRAXLER, Chief Judge, dissenting:

       When the Government and the defendant make clear to the

judge that they agree as to the sentencing options available to

the    judge    and       when    the    judge      chooses    a   sentence       that     is

unquestionably within this range of lawful options, I believe we

can presume the judge understood what the lawyers said and I do

not believe we can fault the sentencing judge for not explaining

why he rejected the other choices presented to him.

       There is nothing in the record to rebut the presumption

that   the     district      court       fully      understood     the    scope    of     its

sentencing authority when it ruled on Hardy’s motion under 18

U.S.C. § 3582(c)(2).              The parties’ written submissions, as well

as the probation officer’s report, advised the court that it had

the authority to reduce Hardy’s sentence to 98 months or less.

The district court’s order reflected that the court understood

the extent to which it was authorized to reduce Hardy’s sentence

but decided that the circumstances in this case merited less

than   the     maximum      reduction.           The   district     court     acted      well

within its discretion to reduce Hardy’s sentence to 140 months

rather than 98 months.             Accordingly, I respectfully dissent.

       Where    a     defendant         “has   been     sentenced        to   a   term     of

imprisonment based on a sentencing range that has subsequently

been lowered by the Sentencing Commission,” a district court

“may   reduce       the    term    of    imprisonment”        after   considering         the

                                               12
§ 3553(a) factors and the applicable policy statements from the

Sentencing Commission.             See 18 U.S.C. § 3582(c)(2) (emphasis

added).      “[T]he 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 sentence, even where the

current sentence is above the amended guidelines range.”                                 United

States v. Stewart, 595 F.3d 197, 200 (4th Cir. 2010).                                     This

court therefore reviews a district court’s decision to grant or

deny   a   sentence       reduction    under       §    3582(c)(2)       for        abuse    of

discretion.        See United States v. Smalls, 720 F.3d 193, 195 (4th

Cir. 2013).        A court’s failure to understand the scope of its

authority to reduce a sentence under § 3582(c)(2) amounts to an

abuse of discretion.           See United States v. Bernard, 708 F.3d

583, 597 (4th Cir. 2013).

       Although     the    district    court       granted    Hardy’s       motion          and

reduced his sentence from 168 months to 140 months, Hardy argues

that   the    district     court    failed     to      understand        that       it   could

reduce his sentence even further to 98 months.                             To properly

consider Hardy’s position, the correct place to start is with

the presumption that the district judge correctly understood his

sentencing     authority      and     properly         considered    the        §    3553(c)

factors      and    applicable       policy    statements           as     required         by

§ 3582(c)(2).        See Smalls, 720 F.3d at 195-96.                       “[A]bsent a

contrary     indication,     we     presume    a       district   court        deciding       a

                                         13
§ 3582(c)(2)        motion    has    considered    the    18    U.S.C.    §    3553(a)

factors and other pertinent matters before it.”                        Id. (internal

quotation marks omitted).             There is nothing in the record that,

in my view, overcomes the presumption that the district court

properly understood and considered the extent of his authority

to reduce Hardy’s sentence.

       Section 1B1.10(b)(1) of the Sentencing Guidelines directs

the   district      court    when    considering     a   sentence      reduction         to

“determine     the    amended       guideline    range   that    would    have       been

applicable to the defendant if the amendment(s) . . . had been

in    effect   at    the     time    the   defendant     was    sentenced.”          The

Sentencing Guidelines generally prohibit a court from reducing

the defendant’s term of imprisonment under § 3582(c)(2) “to a

term that is less than the minimum of the amended guideline

range.”    U.S.S.G. § 1B1.10(b)(2)(A).              If, however, a defendant’s

original   sentence         was   below    the   guideline     range     based      on    a

substantial      assistance         departure    under    §    3553(e),       then       “a

reduction comparably less than the amended guideline range . . .

may be appropriate.”          Id. at § 1B1.10(b)(2)(B) (emphasis added).

       In this case, Hardy’s original sentencing range would have

been 168-210 months but for the fact that he was subject to a

240-month mandatory minimum sentence.                Nevertheless, in light of

the    mandatory      minimum,       Hardy’s     guideline     sentence       was     240

months.    See U.S.S.G. § 5G1.1(b) (“Where a statutorily required

                                           14
minimum sentence is greater than the maximum of the applicable

guideline range, the statutorily required minimum sentence shall

be the guideline sentence.”).        Thus, U.S.S.G. § 1B1.10(b)(2)(B)

applies in this case.      Hardy’s original sentence was below the

guideline   range   “pursuant   to   a    government   motion    to   reflect

[Hardy’s] substantial assistance to authorities,” meaning that

the district court could, but was not required to, grant under

§ 3582(c)(2)   “a   reduction   comparably      less   than     the   amended

guideline range” of 140-175 months.

     U.S.S.G. § 1B1.10(c) makes clear that in a case such as

this one, where the defendant is subject to a statutory minimum,

the amended range is determined “without regard to the operation

of § 5G1.1.”    U.S.S.G. § 1B1.10(c).          That is, the court must

disregard the fact that the defendant was subject to a mandatory

minimum when determining “the amended guideline range that would

have been applicable to the defendant if the amendment(s) . . .

had been in effect at the time the defendant was sentenced.”

U.S.S.G. § 1B1.10(b)(1).

     The parties agree that in reducing Hardy’s sentence under

§ 3582(c)(2), the district court, had it so desired, could have

gone as low as 98 months because the original 168-month sentence

was 30% below the guideline range of 240 months—the guideline

range being equal to the mandatory minimum under § 5G1.1.                   A

“comparable” 30% reduction from the bottom of the amended range

                                     15
of 140 months would have resulted in a sentence of 98 months,

assuming    the   district   court   in   its    discretion    found   such   a

reduction to be appropriate.         This point was the subject of the

memoranda submitted to the court by the parties.                The district

court,     however,   granted   Hardy     a     downward   departure    under

§ 3553(e) and sentenced him to 168 months, the bottom of the

otherwise applicable sentencing range.

     There is nothing in the district court’s ruling to overcome

the presumption that the court understood how to properly apply

U.S.S.G. § 1B1.10(b) & (c), that the amended guideline range was

140-175 months, and that it could reduce Hardy’s sentence below

the amended range to 98 months.           The court was fully briefed by

the parties and the probation officer regarding the option of

reducing Hardy’s sentence to 98 months.              The district court’s

order reflected its clear understanding of the amended guideline

range as determined by application of § 1B1.10(c):              “Defendant’s

reduced sentence [of 140 months] . . . is likewise at the low

end of the revised Guideline Range after Amendment 782, without

consideration of the § 851 notice.”             J.A. 89.      And, since the

district court clearly understood that the 140-month sentence

that it was imposing was at the bottom of the amended range, the

court understood it was not imposing a “reduced sentence . . .

comparably less than the amended guideline range” because it did

not select that checkbox option.

                                     16
       The fact that the one-page form order does not explicitly

state    that   “the   court   is   aware   that      a    98-month    sentence     is

permissible” does not persuade me that the district court was

ignorant of this point on which it had just been briefed.                      “[I]n

the absence of evidence a court neglected to consider relevant

factors, the court does not err in failing to provide a full

explanation for its § 3582(c)(2) decision.”                    Smalls, 720 F.3d at

196.     The    district   court    chose   to   go       to   the   bottom   of   the

amended range, but not below it.             There is nothing to suggest

that this was not a conscious and intentional choice or that we

ought to abandon the presumption that the district court was

aware of and considered all of the sentencing options available

to it.




                                       17
