                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                               ________________

                               Nos. 05-3633/3844
                               ________________

United States of America,                *
                                         *
      Appellee/Cross-Appellant,          *
                                         *      Appeals from the United States
      v.                                 *      District Court for the
                                         *      Northern District of Iowa.
Russell James Hodge, also known          *
as Rusty Hodge,                          *           [PUBLISHED]
                                         *
      Appellant/Cross-Appellee.          *

                               ________________

                               Submitted: September 26, 2006
                                   Filed: November 22, 2006
                               ________________

Before MURPHY, HANSEN, and RILEY, Circuit Judges.
                        ________________

HANSEN, Circuit Judge.

       Following our prior remand for resentencing, see United States v. Hodge, 142
Fed. Appx. 268 (8th Cir. 2005) (unpublished), the district court resentenced Hodge
to the statutory mandatory minimum sentence of 120 months. Hodge appeals the
denial of his motion to compel the United States to file a substantial-assistance
downward-departure motion under 18 U.S.C. § 3553(e), and the United States cross
appeals, challenging the below-Guidelines sentence. We reverse and remand once
again for resentencing.
                                           I.

       Hodge pleaded guilty to being an unlawful user of a controlled substance while
in possession of a firearm, see 18 U.S.C. §§ 922(g)(3) and 924(a)(2); conspiring to
manufacture, distribute, and possess with the intent to distribute 500 grams or more
of actual methamphetamine, see 21 U.S.C. §§ 841(a)(1) and 846; and conspiring to
distribute pseudoephedrine knowing it would be used to manufacture
methamphetamine, see 21 U.S.C. §§ 841(c)(2) and 846. Hodge pleaded guilty and
agreed to cooperate and assist the Government. The plea agreement reserved to the
Government the sole discretion of deciding whether to request a departure based upon
Hodge's "substantial assistance." At Hodge's initial sentencing hearing, the district
court granted Hodge a minor role reduction over the Government's objection. Hodge's
adjusted offense level of 25, coupled with his criminal history category of IV, resulted
in a Guidelines range of 84 to 105 months of imprisonment. Hodge faced a
mandatory minimum sentence of 120 months' imprisonment.

      The Government made a motion under United States Sentencing Guidelines
Manual (USSG) § 5K1.1 to depart from the Guidelines range based on Hodge's
substantial assistance, but because the Guidelines range after the granting of the role
reduction adjustment was already below the mandatory minimum, the § 5K1.1 motion
was ineffectual without an additional § 3553(e) motion to permit the court to depart
below the statutory mandatory minimum. To recognize Hodge's assistance, the
Government subsequently made the § 3553(e) motion, but explicitly reserved the right
to withdraw the motion in the event its objection to the minor role reduction was
successful on appeal. Without the role reduction adjustment, the Guidelines range
would have been well above the statutory mandatory minimum. The district court
granted the Government's § 3553(e) motion and departed below the statutory
mandatory minimum to a sentence of 84 months of imprisonment, the bottom of the
applicable Guidelines range.



                                          -2-
       On appeal, we reversed the sentence, concluding that the district court
committed clear error in granting a minor role reduction based on Hodge's role as
compared to the other participants in the conspiracy. 142 Fed. Appx. at 269. Without
the role reduction at the remanded resentencing, Hodge faced an adjusted offense level
of 37, which, coupled with his criminal history category of IV, resulted in an advisory
Guidelines range of 292 to 365 months of imprisonment. The Government renewed
its USSG § 5K1.1 motion for a substantial-assistance departure below the recalculated
advisory Guidelines range, but it withdrew its § 3553(e) motion for a substantial-
assistance departure below the statutory mandatory minimum because the advisory
Guidelines range on remand was significantly higher than the mandatory minimum
of 120 months. Starting with the 292 to 365-month advisory Guidelines range, the
district court considered the § 3553(a) sentencing factors as directed by the Supreme
Court in United States v. Booker, 543 U.S. 220 (2005), and determined that those
statutory factors supported a non-Guidelines sentence of 120 months, the mandatory
minimum. The district court then addressed the Government's § 5K1.1 substantial-
assistance departure motion and concluded that without a § 3553(e) motion, it was
bound by the mandatory minimum and could not give Hodge any benefit for his
substantial assistance. Hodge now appeals the denial of his motion to compel the
Government to file a § 3553(e) motion, and the Government cross-appeals the
reasonableness of the 120-month sentence and the district court's failure to consider
a traditional departure prior to considering the § 3553(a) factors.

                                  II. Hodge's Appeal

       On appeal from the remand, Hodge argues that the Government waived its right
to withdraw the § 3553(e) motion made at the initial sentencing hearing by not raising
the issue of substantial assistance in the first appeal. Alternatively, Hodge claims that
even if the Government had the authority to withdraw the § 3553(e) motion, its refusal
to make the motion was based on improper motives such that the district court should
have compelled the Government to make the motion. We respectfully disagree.

                                           -3-
        As noted, the Government specifically conditioned its § 3553(e) motion on the
denial of its objection to the minor role reduction, noting that "the [§ 3553] E motion
that will be made today . . . is being made based upon the Court's ruling of role and
that if this case is appealed and the issue comes back . . . that we're not stuck with the
3553(e) motion at this time." (Sept. 30, 2004, Sent. Tr. at 4-5.) The Government's
prediction came to fruition, and the Government chose not to renew the § 3553(e)
motion on remand for resentencing. The Government clearly did not waive its right
to withdraw the § 3553(e) motion in the circumstances of this case.

       Nor was the Government required to raise the issue in its first appeal. At the
time the Government appealed the original sentence, the district court had granted the
Government's § 3553(e) motion. Thus, the Government was not aggrieved by the
granting of its own motion, and it was not required to seek review of the then-
favorable ruling. When a sentence is vacated and remanded to the district court for
resentencing, "'all issues decided by the appellate court become the law of the case,'
and the sentencing court is bound to proceed within the scope of 'any limitations
imposed on its function at resentencing by the appellate court.'" United States v.
Behler, 100 F.3d 632, 635 (8th Cir. 1996) (quoting United States v. Bartsh, 69 F.3d
864, 866 (8th Cir. 1995) & United States v. Cornelius, 968 F.2d 703, 705 (8th Cir.
1992)), cert. denied, 522 U.S. 855 (1997). The only issue we addressed and
limitation we imposed in the first appeal involved the propriety of a minor role
reduction for Hodge. Our mandate directed the district court to "resentence Hodge in
accordance with this opinion." 142 Fed. Appx. at 269. That meant that he was not to
receive a reduction for his role in the offense at his resentencing. We did not address
the extent of Hodge's substantial assistance or the Government's § 5K1.1 and
§ 3553(e) motions because we were not asked to do so. The Government's failure to
specifically appeal the contingency of its § 3553(e) motion as a part of the first appeal
did not prevent it from exercising its discretion to withdraw the motion (or not to
renew it) when the case was remanded for resentencing where the Government made
the motion contingent on the propriety of the role reduction. See United States v.

                                           -4-
Dunlap, 452 F.3d 747, 749-50 (8th Cir. 2006) (holding that the Government was not
precluded from offering evidence of drug quantity on remand where the evidence was
not offered at the original sentencing based on the district court's adoption of the PSR
quantities and its interpretation of defendant's objection as a Blakely objection rather
than a quantity objection, such that the Government was not required to establish
quantity at the original hearing).

      Hodge argues that there was no valid reason for the Government to refuse to
make the § 3553(e) motion at his resentencing. According to Hodge, the Government
had already concluded that his substantial assistance warranted the motion as
evidenced by the Government's § 3553(e) motion at the original sentencing
proceeding. Without a substantial-assistance motion from the Government, which the
Government had no duty to make based on the terms of the plea agreement, the district
court lacked the authority to impose a sentence below the 120-month statutory
mandatory minimum "unless the refusal to file the motion was based upon [an]
unconstitutional motive." United States v. Pamperin, 456 F.3d 822, 824 (8th Cir.
2006).

       An unconstitutional motive is one based on invidious discrimination, such as
race or religion, or one that is "not rationally related to any legitimate Government
end." Wade v. United States, 504 U.S. 181, 185-86 (1992); United States v. Moeller,
383 F.3d 710, 712 (8th Cir. 2004) (noting that a substantive due process violation
involves government conduct that shocks the conscience and an equal protection
violation requires unlawful and purposeful discrimination). Hodge does not argue that
the Government's motive was unconstitutional, rather he says that its refusal was made
in a bad faith attempt to limit the district court's sentencing discretion. As we have
recently noted, however, "bad faith is not a constitutional standard." Moeller, 383
F.3d at 712. The limited exception recognized in Wade does not aid Hodge, who does
not allege an unconstitutional motive behind the Government's withdrawal of its
§ 3553(e) motion.

                                          -5-
       We recognize that there is an intracircuit split over whether bad faith can
provide the basis for compelling the Government to file a § 3553(e) motion absent an
otherwise unconstitutional motive. See Pamperin, 456 F.3d at 824 n.2 (comparing
Moeller, 383 F.3d at 712, with United States v. Wolf, 270 F.3d 1188, 1191 (8th Cir.
2001), and United States v. Kelly, 18 F.3d 612, 617-18 (8th Cir. 1994)); see also
United States v. Davis, 397 F.3d 672, 677 (8th Cir. 2005) (Colloton, J., concurring)
(urging discontinuance of the "bad faith" terminology following Moeller's clarification
of Wade). While we note our agreement with Moeller and the Davis concurrence, we
need not wade into the debate here. "[A] claim that a defendant merely provided
substantial assistance will not entitle a defendant to a remedy or even to discovery or
an evidentiary hearing." Wade, 504 U.S. at 186. Hodge has made nothing more than
"generalized allegations of [an] improper motive," which likewise do not entitle him
to a remedy. Id.

       Even if Hodge's bad faith argument could be characterized as asserting a
constitutional violation, that is that the Government's withdrawal of the motion was
an attempt to limit the district court's sentencing discretion and therefore "not
rationally related to a legitimate Government end," Wade, 504 U.S. at 186, we would
reject it. "The government's refusal to file a § 3553(e) or § 5K1.1 motion always has
the effect of limiting the sentencing court's discretion. But so long as the government
is exercising the statutory power conferred by those laws and its action is not based
on an unconstitutional motive, its refusal to file the motion is unreviewable." Moeller,
383 F.3d at 713.

      Here, the Government recognized Hodge's assistance on remand by making the
§ 5K1.1 motion, allowing the district court to consider Hodge's assistance in deciding
whether to depart below the correct advisory Guidelines range of 292 to 365 months.
This is not a case where the Government agreed that the defendant provided
substantial assistance but refused to make any motion acknowledging that assistance.
Cf. United States v. Anzalone, 148 F.3d 940, 941-42 (8th Cir.) (requiring the

                                          -6-
Government to file a § 5K1.1 motion where the Government conceded that the
defendant provided substantial assistance but refused to file the motion based on
unrelated misconduct), reinstated by, 161 F.3d 1125 (8th Cir. 1998). The decision to
make a § 5K1.1 motion but not a § 3553(e) motion, where the defendant faces a 172-
month differential between the bottom of the advisory Guidelines range and the
statutory mandatory minimum, is within the Government's discretion based "on its
rational assessment of the cost and benefit that would flow from moving." Wade, 504
U.S. at 187. See also Pamperin, 456 F.3d at 825 (holding that the Government
provided a sufficient reason for making a § 5K1.1 motion but refusing to make a
§ 3553(e) motion on the basis that no further reduction below the mandatory minimum
was appropriate where the defendant faced a 210 to 240-month Guidelines range and
a 120-month mandatory minimum). To hold otherwise would require the Government
to always make a § 3553(e) motion any time it makes a § 5K1.1 motion. This clearly
is not the law. See Pamperin, 456 F.3d at 825; cf. United States v. Stockdall, 45 F.3d
1257, 1260 (8th Cir. 1995) (holding that § 3553(e) allowed the Government to limit
its motion to one count of a multicount conviction involving multiple mandatory
minimum sentences). The district court did not err in declining to compel the
Government to make a § 3553(e) motion.

                          III. Government's Cross-Appeal

       The Government cross-appeals Hodge's sentence, challenging the district court's
procedure of considering the § 3553(a) factors prior to considering the § 5K1.1
departure motion and arguing that the 120-month sentence is unreasonable. We
review the district court's application of the Guidelines de novo. See United States v.
Zeigler, 463 F.3d 814, 817 (8th Cir. 2006). We review the reasonableness of the
ultimate sentence under an abuse of discretion standard, measuring the extent of a
district court's variance from the advisory Guidelines range against the statutory
factors contained in § 3553(a). Id.



                                          -7-
        Post-Booker, the first step in sentencing a defendant is to determine the
appropriate advisory Guidelines range, including traditional departures. See United
States v. Haack, 403 F.3d 997, 1002-03 (8th Cir.), cert. denied, 126 S. Ct. 276 (2005).
In this case, the district court inappropriately applied the § 3553(a) factors before
considering the Government's § 5K1.1 departure motion. We have made clear post-
Booker that Guideline departures remain an important and relevant part of
determining a defendant's advisory Guidelines range. See United States v. McDonald,
461 F.3d 948, 952 (8th Cir. 2006) ("The guidelines sentencing range remains the
'critical starting point' of our analysis."); United States v. Kiertzner, 460 F.3d 988, 989
(8th Cir. 2006) ("[P]ost- Booker, . . . it is necessary for sentencing courts to calculate
the applicable, advisory Guidelines range, including any traditional departures or
reductions, and use that range as one of the factors under § 3553(a) to determine an
overall, reasonable sentence."); United States v. Whitrock, 454 F.3d 866, 868 (8th Cir.
2006) ("[A] departure under Chapter 5, Part K is part of the determination of the
advisory Guidelines range."). The district court erred in failing to rule on the § 5K1.1
motion prior to considering the § 3553(a) factors.

      Although the district court's failure to consider departures before considering
the § 3553(a) factors is subject to harmless error analysis and would generally be
harmless to the Government in this situation, see Pamperin, 456 F.3d at 824, it is not
harmless here where the Government challenges the reasonableness of the ultimate
sentence. A sentence within the advisory Guidelines range is presumptively
reasonable, and the farther a sentence varies from that range based on the other
§ 3553(a) factors, the more compelling the justification needs to be to support the
variance. See United States v. Beal, 463 F.3d 834, 836 (8th Cir. 2006). Thus, an
accurately calculated advisory Guidelines range, including any legitimate authorized
departure, is imperative to ascertaining the reasonableness of the ultimate sentence.
We agree with the Government that the 120-month sentence is not justified by the
§ 3553(a) factors relied upon by the district court, as explained in more detail below,



                                            -8-
and the district court's error in failing to consider first the § 5K1.1 departure motion
is therefore not harmless.

       The Government asserts that Hodge's 120-month sentence is unreasonable. On
this record, we agree. Although the Guidelines range is advisory and the district court
has discretion in determining a defendant's sentence, the § 3553(a) factors relied upon
by the district court do not support a 172-month reduction from the presumptively
reasonable Guidelines range (absent consideration of any departure motion) of 292 to
365 months. Therefore, the district court abused its discretion in reaching that
sentence based on the articulated factors.

       The district court relied on the following facts to support its below-Guidelines
sentence: Hodge was addicted to methamphetamine and supplied pseudoephedrine
pills in exchange for user quantities of methamphetamine, § 3553(a)(1); a shorter
sentence was adequate to meet the goals of deterrence, punishment, and protection of
the public, § 3553(a)(2); the Government would not have been able to attribute such
a large quantity of drugs to Hodge without his self-incriminating statements and the
Government refused to give Hodge immunity for his statements under USSG § 1B1.8,
§ 3553(a)(4); and a coconspirator whom the district court found to be more culpable
received a 120-month sentence, § 3553(a)(6).

       "A sentence may be unreasonable if (1) a court fails to consider a relevant factor
that should have received significant weight; (2) a court gives significant weight to an
improper or irrelevant factor; or (3) a court considers only the appropriate factors but
in weighing those factors commits a clear error of judgment." Beal, 463 F.3d at 836
(internal marks omitted). In discounting Hodge's sentence based on his drug
addiction, the district court failed to consider the policy statements promulgated by
the Sentencing Commission, which are relevant factors that should have received
significant weight under § 3553(a)(5), separate and apart from considering the
advisory Guidelines range under § 3553(a)(4). The Sentencing Commission has

                                           -9-
determined that "[d]rug or alcohol dependence is not a reason for a downward
departure." USSG § 5H1.4 (policy statement). Although the district court was not
considering a downward departure, the policy statements, as directed by § 3553(a)(5),
remain relevant to the determination of a reasonable sentence. See Beal, 463 F.3d at
837 ("[P]ost-Booker, it remains relevant to consider the Guidelines and the
commentary in our assessment of reasonableness."). We have previously held that
drug addiction is not a proper basis for sentencing a defendant below the advisory
Guidelines range, absent extraordinary circumstances. See United States v. Likens,
464 F.3d 823, 826 (8th Cir. 2006); United States v. Lee, 454 F.3d 836, 839 (8th Cir.
2006). The district court did not articulate any extraordinary circumstances and
abused its discretion in failing to consider the policy statement concerning drug
addiction.

       Hodge's drug addiction may have motivated his participation in the conspiracy,
but he was more than a mere user. Hodge stipulated in his plea agreement that he
received a total of over 1,080 grams of pure methamphetamine (clearly not a user
quantity) in exchange for supplying hundreds of thousands of pseudoephedrine pills
over a two-year period. He also stipulated that he sold methamphetamine. Hodge was
denied a minor role reduction in the first appeal because his involvement–providing
hundreds of thousands of pseudoephedrine pills–made him not significantly less
culpable than his coconspirators. 142 Fed. Appx. at 269. Hodge's addiction does not
support shaving over fourteen years off his sentence.

      The district court also erred by giving significant weight to an improper factor,
see Beal, 463 F.3d at 836, namely the Government's refusal to grant Hodge use
immunity for information he provided during debriefing. The district court relied on
§ 3553(a)(4) as the basis for reducing Hodge's sentence because the Government
learned of the extent of Hodge's involvement in the drug conspiracy only through
Hodge's own incriminating statements. Section 3553(a)(4) directs the sentencing
court to consider the applicable category of offense and the sentencing range

                                         -10-
established by the Guidelines. We have held, however, that the prosecutor's denial of
use immunity under USSG § 1B1.8 is not a basis for granting a downward departure,
as that provision gives the Government the power, but not the duty, to grant a
defendant immunity from self-incriminating information provided during the plea
process. See United States v. Buckendahl, 251 F.3d 753, 762 (8th Cir.), cert. denied,
534 U.S. 1049 (2001). While a § 1B1.8 agreement precludes the Government from
using the self-incriminating information in the calculation of the proper Guidelines
range, absent such an agreement, self-incriminating information is properly considered
in calculating the advisory Guidelines range. In other words, the Guidelines would
include the self-incriminating evidence in this case, and § 3553(a)(4), directing the
court to consider the Guidelines, does not justify the district court's exclusion of
Hodge's self-incriminating information to support a sentence below the advisory
Guidelines range.

       The district court also relied on § 3553(a)(2) to support a lesser sentence, but
the court failed to articulate what facts about Hodge, who has an extensive criminal
history, made a lesser sentence adequate to meet the goals of sentencing discussed in
that section. Finally, the district court found the disparity between Hodge's Guidelines
range and the 120-month sentence received by Williams, Hodge's coconspirator, to
support a lesser sentence. It is not clear from the record that Hodge and Williams
were similarly situated. Hodge was in a criminal history category IV and agreed that
he participated in the manufacture of at least 15,000 grams of methamphetamine and
the distribution of at least 3 kilograms of pseudoephedrine, some of which involved
coconspirators other than Williams. The record on appeal does not reveal Williams's
criminal history score or the quantity of drugs attributable to him. The fact that
Williams was a cooker and Hodge supplied precursors does not necessarily entitle
Hodge to a lesser sentence than Williams.

       The district court abused its discretion by failing to consider the relevant factor
of the Guidelines policy statement concerning drug addiction and by giving too much

                                           -11-
weight to the improper factor of the Government's refusal to give Hodge immunity for
his self-incriminating statements. The remaining facts relied upon by the district court
do not support a sentence 172 months below the advisory Guidelines range, and the
120-month sentence is therefore unreasonable on this record.

                                          IV.

       Hodge's sentence is vacated, and the case is remanded once again for
resentencing consistent with this opinion.
                       ______________________________




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