                                                         [DO NOT PUBLISH]

             IN THE UNITED STATES COURT OF APPEALS
                                                                FILED
                    FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                      ________________________ ELEVENTH CIRCUIT
                                                            MAR 15, 2007
                             No. 06-12247                 THOMAS K. KAHN
                         Non-Argument Calendar                CLERK
                       ________________________

               D. C. Docket No. 05-00134-CR-5-SLB-RRA

UNITED STATES OF AMERICA,


                                                           Plaintiff-Appellant,

                                  versus

REGINALD MAURICE DAVIS,
a.k.a. Black,
a.k.a. Hulk,

                                                          Defendant-Appellee.


                       ________________________

                Appeal from the United States District Court
                   for the Northern District of Alabama
                      _________________________

                             (March 15, 2007)

Before TJOFLAT, ANDERSON and HULL, Circuit Judges.

PER CURIAM:
      The government appeals Reginald Davis’s 78-month sentence for conspiracy

to distribute, and distribution of, cocaine hydrochloride, in violation of 21 U.S.C.

§§ 841 (a)(1), (b)(1)(C) and 846. On appeal, the government argues that the

district court improperly considered factors unrelated to Davis’s substantial

assistance in granting a downward departure, pursuant to U.S.S.G. § 5K1.1 and 18

U.S.C. § 3553(e). Specifically, it contends that the district court imposed Davis’s

sentence after considering the sentences that it had imposed on his codefendants,

without discussing his cooperation or considering the§ 5K1.1 factors.

      We review the extent of a downward departure for an abuse of discretion,

and the district court’s interpretation of § 5K1.1 de novo. United States v. Crisp,

454 F.3d 1285, 1288 (11th Cir. 2006). However, we review the government’s

“arguments raised for the first time on appeal for plain error.” United States v.

Clark, 274 F.3d 1325, 1326 (11th Cir. 2001). Plain error exists only where:

      (1) there is an error in the district court's determination; (2) the error is
      plain or obvious; (3) the error affects the defendant's substantial rights
      in that it was prejudicial and not harmless; and (4) the error seriously
      affects the fairness, integrity, or public reputation of judicial
      proceedings.

Id.

      Pursuant to § 5K1.1, sentencing courts are permitted to depart from the

Sentencing Guidelines if the government has filed a motion indicating “that the



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defendant has provided substantial assistance in the investigation or prosecution of

another person who has committed an offense.” See U.S.S.G. § 5K1.1. In ruling

on a government motion for departure based upon substantial assistance, district

courts must consider the following factors, set forth in § 5K1.1: (1) “the court’s

evaluation of the significance and usefulness of the defendant’s assistance, taking

into consideration the government’s evaluation of the assistance rendered;” (2) “the

truthfulness, completeness, and reliability of any information or testimony

provided by the defendant”; (3) “the nature and extent of the defendant’s

assistance;” (4) “any injury suffered, or any danger or risk of injury to the

defendant or his family resulting from his assistance;” and (5) “the timeliness of

the defendant’s assistance.” U.S.S.G. § 5K1.1(a); see United States v. Martin, 455

F.3d 1227, 1235 (11th Cir. 2006).

      “[D]istrict courts are prohibited from considering sentencing factors

unrelated to the nature and extent of a defendant’s assistance in making § 5K1.1

departures.” Martin, 455 F.3d at 1236. Although sentencing courts may consider

factors beyond those included in the § 5K1.1 list, they may do so “only if they are

related to the assistance rendered.” Crisp, 454 F.3d at 1289. “Because a

substantial assistance departure is to be about assistance and nothing else, the

sentencing court may not permissibly consider the sentencing factors announced in



                                           3
18 U.S.C. § 3553(a) when exercising its discretion in deciding whether and how

much to depart under § 5K1.1.” Id. (internal quotations and citations omitted).

Rather, a sentencing court first should decide the nature and extent of an assistance

departure by considering the § 5K1.1 factors. United States v. McVay, 447 F.3d

1348, 1356-57 (11th Cir. 2006).

      In evaluating substantial assistance, the court should make a “determination

that is individualized to the defendant based on the relevant factors and more

specific than a simple statement that the reduction is based on the defendant's

substantial assistance.” Id. at 1354. Where the court fails to discern the

defendant’s assistance, including the extent thereof, and further fails to explain

why it has rejected the government’s recommended sentence, we have found that

resentencing is necessary. Id. at 1356. Moreover, when we vacate and remand for

resentencing based on the district court’s improper consideration of factors

unrelated to substantial assistance under § 5K1.1, and the court’s failure to explain

its reasoning underlying the departure, we need not address the permissible extent

of the downward departure, nor the overall reasonableness of the defendant’s

sentence. See id.

      As an initial matter, while the district court acknowledged an objection for

the government on the basis of reasonableness at the sentencing hearing, the



                                           4
government did not object specifically to the sentence on the basis of the

downward departure. As a result, we will review the district court’s decision for

plain error. See Clark, 274 F.3d at 1326.

      Because Davis had at least two prior drug-related felonies, 21 U.S.C. §

841(b)(1)(A) instructed that he receive a life sentence. Thus, the only way that the

district court could reduce his sentence would be if the government made a §

5K1.1 motion. See 18 U.S.C. § 3553(e) (“Upon motion of the Government, the

court shall have 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.”).

      Here, however, the district court essentially relied on the conduct of co-

conspirators, and the sentences that they had received, in determining Davis’s

sentence. This is a proper consideration suited for a reasonableness analysis under

§ 3553(a) but not for a § 5K1.1 motion. See 18 U.S.C. § 3553(a)(6). While the

court recited the § 5K1.1 factors, and asserted that it had considered them in

determining Davis’s sentence, it did so after it already had announced his sentence

of 78 months’ imprisonment. Moreover, the court gave no meaningful explanation

of how it had evaluated Davis’s substantial assistance on an individualized basis,



                                            5
nor how its reasoning had differed from the government’s. Rather, the record

clearly indicates that the court was simply fashioning a sentence comparable to that

of Davis’s co-conspirators, which was an impermissible consideration under

§ 5K1.1. See Crisp, 454 F.3d at 1289. Because Davis’s mandatory minimum

sentence was life imprisonment, and the government moved for a downward

departure recommending instead 240 months’ imprisonment, the district court’s

improper consideration of § 3553(a) factors as a basis for granting a downward

departure, and imposing a sentence of 78 months’ imprisonment, constitutes plain

error. See Clark, 274 F.3d at 1329. Based on these impermissible considerations

alone, we vacate and remand for resentencing. See Crisp, 454 F.3d at 1289;

McVay, 447 F.3d at 1356.1 Accordingly, we vacate and remand for resentencing.

      VACATED and REMANDED.




      1
          We decline to address the government’s other issues.

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