                                PUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                               No. 13-4771


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

QUINTON MICHAEL SPINKS,

                Defendant - Appellant.



Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. Thomas D. Schroeder,
District Judge. (1:08-cr-00350-TDS-2)


Argued:   September 16, 2014                Decided:   October 28, 2014


Before MOTZ and KING, Circuit Judges, and DAVIS, Senior Circuit
Judge.


Affirmed by published opinion. Judge Motz wrote the opinion, in
which Judge King joined.    Senior Judge Davis wrote a separate
opinion concurring in the judgment.


ARGUED: John Arthur Duberstein, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Greensboro, North Carolina, for Appellant.     Harry L.
Hobgood, OFFICE OF THE UNITED STATES ATTORNEY, Greensboro, North
Carolina, for Appellee.     ON BRIEF: Louis C. Allen, Federal
Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Greensboro, North Carolina, for Appellant.    Ripley Rand, United
States   Attorney,  OFFICE   OF  THE   UNITED   STATES  ATTORNEY,
Greensboro, North Carolina, for Appellee.
DIANA GRIBBON MOTZ, Circuit Judge:

       Quinton Michael Spinks challenges his 84-month sentence for

conspiracy to distribute cocaine and cocaine base.                                He contends

that the district court erred in declining to consider any 18

U.S.C. § 3553(a) factors other than substantial assistance when

determining       the       extent    of     his    sentence          reduction       below    the

mandatory minimum.            For the reasons that follow, we affirm.



                                               I.

       This case comes to us a second time.

       In 2008, Spinks pled guilty to one count of conspiracy to

distribute cocaine hydrochloride and cocaine base, in violation

of    21   U.S.C.      §    846.          Because   the        Government     had      filed    an

Information       of       Prior    Conviction          under    21    U.S.C.     §    851,    the

district     court      determined          that    a    mandatory       statutory          minimum

sentence     of     240       months       applied.             Pursuant     to       18    U.S.C.

§ 3553(e),     the         Government       moved       for,    and    the   district        court

granted, a thirty percent downward departure on the ground that

Spinks had provided substantial assistance in the prosecution of

a codefendant.             When Spinks requested an additional reduction

for    factors      other          than     substantial          assistance,          the    court

rejected his request.                The district court thus reduced Spinks’

240-month mandatory minimum by thirty percent, and imposed a

sentence of 168 months.                   Spinks appealed, and we affirmed.                    See

                                                2
United States v. Spinks, 373 F. App’x 426 (4th Cir. 2010) (per

curiam).

      In 2012, Spinks filed a § 2255 motion requesting relief

pursuant to United States v. Simmons, 649 F.3d 237 (4th Cir.

2011) (en banc).           The Government conceded that the underlying

felony   supporting        the   original     §    851       enhancement       no    longer

qualified to enhance the mandatory minimum sentence.                           It further

waived any objection to Spinks’ failure to comply with the one-

year limitations period.             The district court then set the case

for resentencing.

      At resentencing, after the removal of the conviction that,

given    Simmons,     no    longer    qualified         as    a    predicate        felony,

Spinks’ new mandatory minimum became 120 months under 21 U.S.C.

§ 841(b)(1)(A).       The Government renewed its § 3553(e) motion for

a   thirty    percent      downward    departure        for       Spinks’    substantial

assistance;     the     district      court       again       granted       the     motion,

reducing Spinks’ sentence to 84 months imprisonment.

      Spinks’ counsel did not ask for a greater adjustment on the

basis    of   substantial        assistance,      but     did      ask   the      court   to

consider “some additional amount beyond the [thirty] percent,”

because of Spinks’ “rehabilitation in the Bureau of Prisons and

what he has done since” his first sentencing.                               The district

court concluded that once it had departed below the mandatory

minimum for a defendant’s substantial assistance, it did not

                                         3
have the authority to depart further based on other § 3553(a)

factors.      Accordingly,          the   court           reduced      Spinks’   120-month

mandatory minimum by just thirty percent, and imposed a sentence

of 84 months.       Spinks timely noted this appeal, challenging only

his sentence.

     We    review    the    district       court’s             legal   determinations     de

novo.      United States v. Moore, 666 F.3d 313, 320 (4th Cir.

2012).      Thus,    we    consider       de       novo    whether      the   court     could

consider,    pursuant      to   §    3553(e),        non-assistance           factors    when

determining the extent of a sentence reduction below a statutory

mandatory minimum sentence.



                                           II.

        Section 3553(e) grants a sentencing court authority, upon

the Government’s motion, “to impose a sentence below a level

established by statute as a minimum sentence” for a defendant’s

“substantial assistance in the investigation or prosecution of

another    person    who    has      committed            an    offense.”        18   U.S.C.

§ 3553(e).    Spinks asserts that the district court erred because

it   did    not     consider        factors         other       than    his    substantial

assistance -- specifically, his post-conviction rehabilitation

-- in determining the extent of his sentence reduction below the

mandatory minimum.         But our precedent on this point is clear:

the extent of a § 3553(e) departure below a mandatory minimum

                                               4
must be based solely on a defendant’s substantial assistance and

factors related to that assistance.

        In United States v. Hood, 556 F.3d 226 (4th Cir. 2009), we

squarely addressed whether a district court can consider non-

assistance      factors   in    determining         the   extent       of   a   departure

from a mandatory minimum sentence under § 3553(e).                          Like Spinks,

the defendant in Hood argued that a sentence imposed pursuant to

a   §   3553(e)    departure      should       be   measured      by    non-assistance

factors.     Id. at 234 n.2.          We concluded that the extent of a

§ 3553(e) departure below a mandatory minimum could be based

“solely    on   the   defendant’s     substantial          assistance           and    other

factors related to that assistance.”                      Id.      We reasoned 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

prosecution of another person who has committed an offense.’”




                                           5
Id.     at     233       (quoting    18     U.S.C.     §   3553(e))     (emphasis     in

original)). 1

      Hood      controls         here.      After    the   Government    renewed     its

request      for     a    thirty    percent    downward     departure    for   Spinks’

substantial assistance, he requested that the court consider his

rehabilitation and depart further below the mandatory minimum.

Following       Hood,      the    district    court    correctly   concluded     that,

once it had departed below a mandatory minimum sentence on the

basis     of   a     defendant’s         substantial   assistance,      it   could   not

further depart based on any non-assistance factor.



                                             III.

      Spinks contends, however, that our recent holding in United

States v. Davis, 679 F.3d 190 (4th Cir. 2012) and the Supreme

Court’s recent holding in Pepper v. United States, 131 S. Ct.

1229 (2011) abrogate Hood.                Both arguments fail.




      1
       Every circuit to consider this question has agreed. See
United States v. Grant, 636 F.3d 803 (6th Cir. 2011); United
States v. A.B., 529 F.3d 1275 (10th Cir. 2008); United States v.
Richardson, 521 F.3d 149 (2d Cir. 2008); United States v.
Mangaroo, 504 F.3d 1350 (11th Cir. 2007); United States v.
Williams, 474 F.3d 1130 (8th Cir. 2007); United States v.
Desselle, 450 F.3d 179 (5th Cir. 2006); United States v. Auld,
321 F.3d 861 (9th Cir. 2003); United States v. Ahlers, 305 F.3d
54 (1st Cir. 2002); United States v. Thomas, 11 F.3d 732 (7th
Cir. 1993).

                                               6
                                          A.

       Spinks maintains that Davis permits consideration of other

relevant     sentencing      factors    in       the    calculation     of       a    reduced

mandatory     minimum       sentence.             Davis,     however,        involved        a

different     situation      –-    a    motion         for   a    sentence       reduction

pursuant to Federal Rule of Criminal Procedure 35(b), not for a

sentence reduction pursuant to § 3553(e).

       Davis had pled guilty to robbing a store at gunpoint, as

well    as   to   using    and    carrying       a     firearm    during     a       crime   of

violence and possessing it in furtherance of that crime.                               Davis,

679 F.3d at 192.          Upon the Government’s § 5K1.1 motion at Davis’

initial sentencing, the district court reduced Davis’ offense

level, and imposed a sentence of 86 months.                      Id.    The Government

later filed a motion, pursuant to Rule 35(b), seeking a further

reduction of Davis’ sentence to 60 months based on his continued

substantial assistance while incarcerated.                        Id.      The district

court decided that it could consider non-assistance factors to

limit the extent of the Rule 35(b) sentence reduction.                                 Id. at

193.     Accordingly, the court considered non-assistance factors

-- Davis’ “violent offense,” his “prior record for burglary and

grand larceny,” and his receipt of “a prior reduction” pursuant

to     U.S.S.G.    §   5K1.1      --   and       concluded       that   these         factors

mitigated against granting the full sentence reduction requested

by the Government.           Id.       The court thus ordered a resulting

                                             7
sentence of 72 months’ imprisonment, rather than the 60-month

reduced sentence the Government had requested.                     Id.

      On appeal, Davis unsuccessfully argued that the district

court erred in considering non-assistance related factors when

determining the extent of his Rule 35(b) sentence reduction.

Id.       We   held     that   a    “district        court   can    consider    other

sentencing       factors,      besides         the      defendant’s      substantial

assistance,      when    deciding    the       extent   of   a   reduction     to   the

defendant’s sentence after granting a Rule 35(b) motion.”                           Id.

at 195-96.      We reasoned that “[n]othing in the plain language of

Rule 35(b) restricts the district court from considering other

factors when determining the extent of the sentence reduction.”

Id. at 196. 2

      Davis is no help to Spinks.               The motion before the district

court in Davis was a Rule 35(b) motion, not a motion under

18 U.S.C. § 3553(e), as here.                  In Davis, we held only that a

district       court    may    consider        non-assistance       factors    “after


      2
       We, and every circuit to consider the question, have
agreed that a court may consider only a defendant’s substantial
assistance when deciding whether to grant a Rule 35(b) motion.
See United States v. Clawson, 650 F.3d 530, 532 n. 1 (4th Cir.
2011); see also United States v. Tadio, 663 F.3d 1042, 1046 (9th
Cir. 2011) (collecting cases). There is some disagreement among
our sister circuits, however, as to whether a court may consider
non-assistance factors only to limit the extent of a reduction
under Rule 35(b), or also to increase the extent of a reduction.
Compare Tadio, 663 F.3d at 1047, with United States v. Rublee,
655 F.3d 835, 839 (8th Cir. 2011).     We need not resolve that
question here.

                                           8
granting a Rule 35(b) motion.”                Id.    Our holding did not address

18 U.S.C. § 3553(e).

       Spinks suggests that Rule 35(b) and 18 U.S.C. § 3553(e)

should be treated the same for present purposes.                            To be sure,

both       Rule   35(b)    and    §   3553(e)     authorize      sentence    reductions

below       a     statutory      mandatory      minimum     on    the    basis    of     a

defendant’s         substantial       assistance.         The    differences     in    the

language of the two provisions, however, are of some moment.

The    plain       language      of   §   3553(e)   expressly      provides      that    a

sentencing court has the authority to depart below a mandatory

minimum “so as to reflect a defendant’s substantial assistance

in the investigation or prosecution of another person who has

committed an offense.” (emphasis added).                    Rule 35(b) contains no

similar         language   requiring       that   the   reduction       “reflect”      the

defendant’s assistance. See Fed.R.Crim.P. 35(b)(1). 3


       3
       Prior to 2002, Rule 35(b) did require that the reduction
“reflect” a defendant’s assistance. The 2002 amendments to the
rule substituted the “reflect” language with the phrase “may
reduce a sentence if,” currently in Rule 35(b).    The First and
Sixth Circuits have disregarded this change on the ground that
it was intended to be stylistic only, and so have continued to
read Rule 35(b) to be limited in the same way that 18 U.S.C.
§ 3553(e) is. See United States v. Poland, 562 F.3d 35, 41 (1st
Cir. 2009); United States v. Grant, 636 F.3d 803, 814 (6th Cir.
2001).    We do not think that such interpretive leeway is
appropriate when language is unambiguous. Rather, when language
is plain, a court’s “sole function . . . is to enforce it
according to its terms.”   Lamie v. U.S. Trustee, 540 U.S. 526,
534 (2004) (citation omitted).    Moreover, each court to have
ignored the 2002 amendments to Rule 35(b) has done so in order
to impose § 3553(e)’s restriction on non-assistance factors onto
(Continued)
                                9
      Thus, the extent of a § 3553(e) departure from a mandatory

minimum   can      be    determined,          as     we        held    in     Hood,   only    by

considering       factors       that    “reflect”          a    defendant’s       substantial

assistance.       Moreover, even if, as our concurring colleague so

vehemently contends, the text of § 3553(e) could not be fairly

distinguished from that in Rule 35(b), Hood would control.                                   For

a panel of this court cannot overrule the holding of an earlier

panel, McMellon v. United States, 387 F.3d 329, 332 (4th Cir.

2004) (en banc), and if two circuit precedents conflict, the

earlier   one,     here       Hood,     (issued      in        2009)    controls      over   the

later, here Davis (issued in 2012).                   Id. at 333.

                                               B.

      Furthermore,           contrary    to       Spinks’       suggestion,      Pepper      does

not assist him.          In Pepper, the Supreme Court held that after a

defendant’s sentence has been set aside on appeal, a sentencing

court may consider evidence of the defendant’s postsentencing

rehabilitation          to     support        a     variance           from    the    advisory

Guidelines range.            131 S. Ct. at 1236.

      The defendant in Pepper did not receive a statutory minimum

sentence because he qualified for a safety-valve reduction under

18   U.S.C.   §    3553(f).            Id.    at    1236       n.1.      The    Pepper    Court



Rule 35(b), retaining the spirit of the “reflect” language
despite its removal. No court has grafted Rule 35(b)’s broader
amended language onto § 3553(e), as Spinks would have us do.

                                               10
expressly specified that its holding applied to variances “from

the now-advisory Federal Sentencing Guidelines range.”                   Id. at

1236.      Unlike   the   appellant   in    Pepper,    Spinks   seeks    a   non-

assistance     based   departure     from   a   mandatory    minimum,     not   a

variance from the advisory Guidelines range.

     Nothing in Pepper indicates that the Supreme Court intended

its holding to apply in the context of a statutory mandatory

minimum    sentence.       Rather,    as    the    Sixth    Circuit     recently

concluded, because Pepper “involved a guidelines sentence, not

waiver of a statutory minimum,” it “certainly does not compel us

to ignore clear precedent, from our circuit and others, holding

that a district court may not consider factors other than the

value     of   substantial    assistance        when   sentencing     below     a

statutory minimum, pursuant to § 3553(e).”                  United States v.

Williams, 687 F.3d 283, 288 (6th Cir. 2012).



                                      IV.

     For the foregoing reasons, the judgment of the district

court is

                                                                      AFFIRMED.




                                      11
DAVIS, Senior Circuit Judge, concurring in the judgment:

     This case comes back to us in a decidedly evolved legal

landscape from that extant when we affirmed Spinks’ original

sentence. See United States v. Spinks, 373 Fed. App’x 426 (4th

Cir. 2010) (unpublished per curiam). Unlike my friends in the

majority, I agree with Spinks that Rule 35(b) and 18 U.S.C.

§ 3553(e)   should   be   treated    the   same    for   present   purposes;

United States v. Davis, 679 F.3d 190 (4th Cir. 2012), cannot be

logically or persuasively distinguished from this case solely

(or even predominantly) on the basis that it involved a Rule

35(b) motion rather than a sentence reduction motion pursuant to

§ 3553(e). Cf. Fed. R. Crim. P. 35(b)(4) (stating “the court may

reduce   the   sentence   to   a   level   below   the   minimum   sentence

established by statute”). 1 Despite what I regard as immaterial


     1
       See In re Sealed Case No. 97-3112, 181 F.3d 128, 133 (D.C.
Cir. 1999) (noting Rule 35(b), § 3553(e), and section 5K1.1 are
to be read “in pari materia”), cited with approval in United
States v. Stewart, 595 F.3d 197, 203 (4th Cir. 2010). Cf.
Stewart, 595 F.3d at 203 (“[W]e 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
practice 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.”).
At least two Supreme Court Justices have acknowledged that the
presentence substantial assistance regime under § 3553(e) and
the post-sentence substantial assistance regime under Rule 35(b)
are “identical.” See Melendez v. United States, 518 U.S. 120,
136 (1996) (Breyer, J., joined by O’Connor, J., concurring in
part and dissenting in part).


                                     12
differences in the language of the two provisions, Rule 35(b),

like    § 3553(e),       authorizes      sentence      reductions,        including

reductions below a statutory minimum, solely on the basis of a

defendant’s substantial assistance. See generally United States

v. Tadio, 663 F.3d 1042, 1046 (9th Cir. 2011) (“Courts all agree

that   substantial       assistance   is      a   prerequisite     to   Rule   35(b)

relief.”).

       As we held in Davis, however, determining the extent of

such a reduction is a separate and distinct undertaking from

determining whether to grant a reduction at all. Davis, 679 F.3d

at   195–96.    In    administering      both     provisions,     district     courts

routinely      advert    to   guidance     provided    by   the    “non-exclusive

reasons   for    an     appropriate   sentence       reduction”     set   forth   in

U.S.S.G. § 5K1.1(a). United States v. Hood, 556 F.3d 226, 235

n.3 (4th Cir. 2009). In Davis, we joined our sister circuits in

holding that § 3553(a) factors have a role to play in Rule 35(b)

proceedings, albeit in that case a role in limiting the extent

of a sentence reduction. In light of Davis’ holding that “the

district court can consider other sentencing factors, besides

the defendant’s substantial assistance when deciding the extent

of a reduction to the defendant’s sentence after granting a rule

35(b) motion,” Davis, 679 F.3d at 195–96, and the lack of a

reasoned basis for distinguishing sentence reductions pursuant

to Rule 35(b) and § 3553(e), Hood’s constraint on this panel as

                                         13
circuit precedent is called into question. Understandably, in

light of his plausible (if broad) reading of Pepper v. United

States, 131 S. Ct. 1229 (2011), Spinks asks us to take the next

logical    step    and    apply   the   Davis    reasoning       in    respect    to   a

§ 3553(e) sentence reduction, especially inasmuch as some, if

not many, initial sentence reduction motions by the government

occur only after an original sentencing hearing and thus under

Rule 35(b), not infrequently as a convenience to the government

or the court. See supra n.1.

     The majority reasons, plausibly, that the deletion in 2002

of the “reflect” language in Rule 35(b) lends credence to the

argument that the two provisions can be interpreted differently.

Ante at 9. Respectfully, I think the majority assigns too much

weight to this change in the language of the rule. This is

especially    so    considering      that     the     advisory     committee     notes

expressly state: "These changes are intended to be stylistic

only,   except     as    noted    below."     Fed.    R.   Crim.   P.    35    advisory

committee’s note (2002 amends.). Unlike some circuits, the First

and Sixth Circuits took the Advisory Committee at its word and

declined     to    attribute      substantive        effect   to      this    stylistic

change. See United States v. Grant, 636 F.3d 803, 814 (6th Cir.

2011); United States v. Poland, 562 F.3d 35, 41 (1st Cir. 2009).

The majority’s critique of those two circuits, "We do not think

that such interpretive leeway is appropriate when language is

                                         14
unambiguous,"       is    wholly     unpersuasive.       Attribution          of    such   a

dramatic   change        in     interpretation    to    an   avowedly         "stylistic"

revision seems to be exactly the type of interpretative leeway

that is cautioned against. And, “plain” or not, the language is

obviously subject to reasonable disagreement among jurists.

     The   more      natural       understanding        of   the    removal        of    the

“reflect” language in Rule 35(b) is that given by Tadio. The

Tadio court put forth three possible readings of the previously

employed   “reflect”          language   in    Rule     35(b)      and   came       to   the

conclusion that I would reach in this case (in light of Davis

and Pepper): “[T]he court may determine the amount of a sentence

reduction in light of the assistance the defendant has provided,

in   combination         with    non-assistance        factors     relevant        to    the

defendant. Again, under this reading, ‘reflect’ means to ‘take

into account.’ But under this reading non-assistance factors may

be used to grant a sentence reduction greater than, less than,

or the same as the reduction that would be warranted by the

defendant’s    assistance          considered     alone.     Rule      35(b)       operates

symmetrically under this reading, and non-assistance factors do

not function as a one-way ratchet.” See Tadio, 663 F.3d at 1050.

Rule 35(b)’s current “may reduce a sentence if” language means

that: “[N]on-assistance factors may be considered, along with

the amount of assistance, in determining the amount of sentence

reduction,    and    that        non-assistance    factors       may     be   considered

                                          15
symmetrically to allow a reduction that is either more or less

than the reduction that the assistance, considered alone, would

warrant.”        Id.    This        reading          is    the   most    natural       because      it

conforms to the advisory committee notes that the change from

“reflect”        to    “may    reduce           a    sentence     if”    was    intended      to    be

stylistic only. Id. at 1050–51.

       I    reiterate         the    overarching            point:      there    is    no    logical

reason to treat Rule 35(b) and § 3553(e) differently. In Tadio,

Judge Fletcher was writing against the background of earlier

Ninth Circuit precedent; I suspect that, given his druthers, he

would have agreed with our beloved Judge Butzner, who dissented

from    the      crabbed       reading          of     §   3553(e)      which     underlies        our

precedent and gave birth to Hood. See United States v. Pillow,

191 F.3d 403, 408 (4th Cir. 1999) (Butzner, J., dissenting). In

any event, an enduring question deserves an answer that makes

logical and practical sense: if the change in language in Rule

35(b)      really      means        that    courts         have    discretion         to    consider

nonassistance factors when considering the extent of a departure

under Rule 35(b), but not under § 3553(e), why would Congress

choose to require courts to treat defendants in the two contexts

differently? This question is especially niggling inasmuch as

where      the   rules     are       given          practical     application         in    the   real

world, there is no difference between the two provisions. Cf.

Poland,       562      F.3d      at        43       (Torruella,         J.,     concurring)(“Our

                                                      16
sentencing regime reflects the work of persons with a background

of much theory and little practice in the art of sentencing.”).

There is no inherent reason that substantial assistance is more

valuable in one context over the other. Even the Sixth Circuit

acknowledged         as    much     in    Grant.        See     Grant,     636    F.3d   at   817

(noting the desirability of maintaining "congruity between the

pre-sentence and post-sentence contexts").

      In      sum,     the     majority         opinion’s             rejection    of    Spinks’

contention is undoubtedly consistent with its interpretation of

our   own     precedent       as    well       as   some        out-of-circuit       precedent.

Nevertheless, absent unmistakably subsisting and binding circuit

precedent, I cannot today, in good conscience, sign on to a

“one-way ratchet” legal regime, Tadio, 663 F.3d at 1047-49, in

which     a   district        court       is   permitted          to    consider     §   3553(a)

factors       to    limit     the        extent        of   a    sentence        departure    for

substantial assistance under Rule 35(b), but is proscribed from

considering         such     factors       as       justification          for    enlarging     a

departure          pursuant       to      § 3553(e).            The     intimation       in   the

majority’s reasoning that such a regime would pass muster is

regrettable. 2


      2
       The majority goes to some effort to leave open the
possibility that a future panel of this Court will not take a
“one-way ratchet” approach when it is presented with the issue
of whether Rule 35(b) (in contrast to § 3553(e)) permits an
enlargement of a substantial assistance departure. See ante at 8
(Continued)
                                                  17
       Admittedly, asymmetry is not unknown in the law, but in

this     post-Booker,       post-Pepper           world    of     federal      sentencing,

maintenance      of   the    manifest        tension       between      Davis       and   Hood

requires    greater     justification          than       the    government        offers    us

here. The Davis/Hood regime is best described as a “heads the

government wins, tails the defendant loses” approach to criminal

sentencing       adjudication.      It       bespeaks       precisely        the    kind    of

arbitrary and unfair sentencing anomaly that prompts members of

the lay public to lose faith in the legitimacy of our criminal

justice system. The legal fiction supporting the notion that

Congress     could    have       intended      such       an    absurdly      inconsistent

practice    is    disreputable.         It   is    well        past   the    time    when    we

should    put    an   end   to    the    empty      formalism         that   bedevils       our



n.2 . Although I would applaud the continued confounding of our
precedents were such a panel to do so, I am not so sanguine over
the possibility of leaving it to another case and would
conclude, dicta or not, that Rule 35(b) would permit such an
enlargement, and therefore § 3553(e) should be interpreted
similarly.

     Especially as Rule 35(b) expressly allows consideration of
both   pre-  and   post-sentencing   substantial  assistance    in
determining the extent of a departure, it should not go
unnoticed by members of the criminal defense bar (and the
district judges) in this circuit that an important lesson
emerges from this case: Subject to the discretion of the
district court, of course, no client should be forced to go to
sentencing on a § 3553(e) motion. After this case, it seems to
me, the relevant standard of care militates strongly in favor of
Rule 35(b) motions only because, under the law of this circuit,
it is only at that juncture that consideration of departure
factors beyond substantial assistance is permitted (if at all).


                                             18
sentencing jurisprudence. See United States v. Valdovinos, 760

F.3d 322, 340 (4th Cir. 2014) (Davis, J., dissenting). 3 Given the

widespread         contemporary          calls    for     a    serious      reexamination        of

federal       sentencing           law     and     policy,       see        id.    at      339–40,

particularly in respect to mandatory minimum sentences, one can

only       hope    that    the     present       anomaly       will    be    brought       to   the

attention of Congress for a prompt legislative correction.

       All        that    said,     I     accept        the    government’s            alternative

contention and vote to affirm. Assuming we were to hold that the

combination of Davis and Pepper permits, even if it does not

compel, reexamination of the Hood gloss on § 3553(e) sentence

reductions,          Spinks       failed     to        offer    sufficient         evidence      to

support       his        request    for     a     larger       reduction          of    sentence.


       3
       The point is made with poignancy in Thomas N. Whiteside,
The Reality Of Federal Sentencing: Beyond The Criticism, 91 Nw.
U. L. Rev. 1574, 1574 (1997) (emphasis added):

       From no other governmental institution is so much
       expected as from the American system of justice.
       Covered extensively by the media, monitored closely by
       the public at large and administered by proponents of
       differing philosophies, our system always has and
       always will be subject to debate, both within and
       without the ranks of those who administer it. At the
       pinnacle of that debate stands the process of
       sentencing. Because the sentencing process defines our
       values in a variety of ways, everyone has a vested
       interest    in   it.    Therefore,   legislators   and
       practitioners have known for a long time that the
       sentencing decision is of such magnitude that it
       should not be rendered without some common basis in
       logic and reason if fairness is to prevail.


                                                  19
Moreover, and in any event, the record shows that the district

court would have imposed the same sentence it did impose without

considering evidence of Spinks’ post-sentencing rehabilitation. 4

Accordingly, I concur in the judgment.


     4
       As the late Judge Terence T. Evans wisely pointed out, the
current substantial assistance regime encourages “game playing”
that we as a court of appeals “should not encourage.” United
States v. Shelby, 584 F.3d 743, 751 (7th Cir. 2009) (Evans, J.,
dissenting).

     The lack of transparency and candor Judge Evans lamented
imposes a genuine cost. A judge who refuses to blink at the real
human being standing before her, who may deserve a significantly
greater reduction in a sentence than that the government
requests, need only couch her explanations and conclusions in
“substantial assistance” verbiage. See id. (noting that the
potential physical harm that threatens a “snitch” and her family
is a proper factor for consideration in a substantial assistance
departure). Thus, under the rules of the “game,” judges who are
“long-ball hitters” at sentencing, see Paul J. Larkin, Jr.,
Public Choice Theory and Overcriminalization, 36 Harv. J.L. &
Pub. Pol’y 715, 754 n.176 (2013), are free to impose as much or
as little of a reduction as they wish. In contrast, “singles
hitters” -- judges who believe, in the individual case, that a
long sentence (i.e., one that is shortened but nevertheless
consonant with the government’s recommendation based on the
“nature and extent” of the substantial assistance) will hardly
serve any legitimate purpose tied to prolonged incarceration,
see id. -- are ostensibly prohibited from considering § 3553(a)
factors. But there simply is no doubt that some (perhaps many)
of the latter will hide their deeply-felt convictions (that a
greater reduction is warranted) through the use of “substantial
assistance” language in explaining the sentence. See Shelby, 584
F.3d at 751 (Evans, J., dissenting). Unsurprisingly, of course,
not all well-meaning, conscientious judges of conviction will
elect to play the game. See Poland, 562 F.3d at 37 (noting that
the district court expressly stated that it would reduce its 40-
month substantial assistance sentence to 30 months if it had the
authority to consider nonassistance factors under Rule 35(b)).
All those sentences, of whatever duration, will surely survive
this Court’s deferential “reasonableness” review upon an appeal
(Continued)
                               20
by a prosecutor. See United States v. Johnson, 393 F.3d 466 (4th
Cir. 2004) (rejecting the government’s challenge to the district
court’s significant substantial assistance departure after an
earlier remand “given the district court’s broad discretion
. . . to determine the extent of a § 3553(e) departure”). The
short of the matter is that, as in the present case, defendants
who provide substantial assistance where the government makes a
motion under § 3553(e) will get whatever they get from the
district judge, regardless of counsel’s fierce advocacy on
sentencing issues, and regardless of how the sentence is
explained, and affirmance on appeal will be a near certainty.
See id. The inevitable result will be the very sentencing
disparities that the vaunted Sentencing Reform Act of 1984 and
its system of (now advisory) guidelines were intended to
extinguish.

     Hopefully, in the Rule 35(b) context, counsel will have
more of an opportunity to advocate effectively for her client,
with meaningful results. Be that as it may, given this Circuit’s
resolution of the appeal in Davis, the real “victim” in this
incoherent scheme emerges from the loss of transparency and
judicial candor in our criminal justice system, and thus the
legitimacy of the system itself.


                               21
