                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                    ___________

                                 No. 06-1952/2154
                                  ___________

United States of America,           *
                                    *
          Cross-Appellant/Appellee, *
                                    * Appeals from the United States
    v.                              * District Court for the
                                    * Northern District of Iowa.
Thomas Eugene Mills, Jr.,           *
                                    *
          Appellant/Cross-Appellee. *
                              ___________

                              Submitted: March 13, 2007
                                 Filed: July 2, 2007
                                  ___________

Before MELLOY, SMITH, and BENTON, Circuit Judges.
                            ___________

SMITH, Circuit Judge.

      Thomas Eugene Mills, Jr. pleaded guilty to one count of conspiracy to distribute
methamphetamine. This court reversed his original sentence in United States v. Mills,
375 F.3d 689 (8th Cir. 2004) (Mills I). On remand, the district court sentenced Mills
to 120 months' imprisonment. Both Mills and the government challenge the sentence
as unreasonable. We reverse and remand.

                                    I. Background
      The facts of Mills's crime are detailed in our opinion Mills I, where we reversed
the sentencing court's consolidation of several burglary offenses. Mills, 375 F.3d at
693. On remand, Mills's initial Guidelines sentencing range was 262 to 327 months.
The district court departed downward after concluding that Mills's criminal history
was over-represented, reducing his Guidelines sentencing range to 151 to 188 months.
U.S.S.G. § 4A1.3. The court then added 12 months to the bottom of the Guidelines
sentencing range to take into account Mills's career-offender status, raising the range
to 163 to 200 months. U.S.S.G. § 4B1.1. The court then granted the government's
motion for a 30% downward departure based on substantial assistance to authorities,
bringing his Guidelines sentencing range to 114 to 140 months, U.S.S.G. § 5K 1.1, a
range that has a bottom six months below the 120-month mandatory statutory
minimum. The government declined to file a § 3553(e) motion necessary for the
district court to impose a sentence below the mandatory statutory minimum. 18 U.S.C.
§ 3553(e).

       The district court ordered the government to explain its refusal to file the
§ 3553(e) motion. In response, the government argued that it lacked the authority,
pursuant to 18 U.S.C. § 3742(g), to enter such a motion in a remanded proceeding and
that the existing substantial non-assistance departures made filing the motion
inappropriate.

       Mills appeals, alleging that the district court erred when it: (1) determined he
qualified as a career offender and (2) declined to compel the government to enter a §
3553(e) motion. The government cross-appeals, alleging that the district court erred
by: (1) granting a downward departure based upon over-representation and (2)
calculating Mills's non-Guidelines sentence. The government also asks, should we
remand, that it be reassigned to a different judge within the district.

                                     II. Discussion
      We review de novo whether the district court based its departure on a
permissible factor; factual findings supporting a departure are reviewed for clear error,
and the ultimate sentence is reviewed for reasonableness. United States v. Tjaden, 473
F.3d 877, 879 (8th Cir. 2007). A sentence within the Guidelines sentencing range is

                                          -2-
presumptively reasonable. United States v. Lincoln, 413 F.3d 716, 718 (8th Cir. 2005).
This court still reviews the sentence imposed for reasonableness under 18 U.S.C. §
3553(a), even if the sentence is within the Guidelines sentencing range. United States
v. Watson, 480 F.3d 1175, 1177 (8th Cir. 2007). Whether a sentence is reasonable in
light of § 3553(a) is reviewed for an abuse of discretion. Id. A sentencing court abuses
its discretion if it fails to consider a relevant factor that should have received
significant weight, gives significant weight to an improper or irrelevant factor, or
considers only the appropriate factors but commits a clear error of judgment in
weighing those factors. Id.

                                  A. Career Offender
       Mills argues that the district court erred by failing to consolidate his state
burglary offenses because the state courts do not issue formal, written consolidated
orders. Mills made a similar argument in Mills I, contending that his prior sentences
were related because of a common scheme or plan. The district court, at that time,
treated the prior sentences as related. We held, however, that no common scheme or
plan existed and remanded the matter. On remand, the district court rejected Mills's
renewed argument that the sentences should be related for sentencing purposes.

       In this appeal, Mills renews his contention that his three prior burglary
sentences should be treated as one. Specifically, Mills now asks this court to "relax"
our requirement that cases must be consolidated in a written order so that multiple
convictions can be treated as one arrest. At oral argument, Mills's counsel conceded
that in order for this panel to do so, we would have to overturn established circuit
precedent. Our panel is not empowered to do so. Mills must make this argument to the
court en banc. United States v. Blahowski, 324 F.3d 592, 597 (8th Cir. 2003). We
affirm the district court's treatment of Mills's prior felonies.




                                          -3-
                               B. § 3553(e) Motion
      Mills also argues that the district court erred when it did not compel the
government to enter a § 3553(e) motion. Mills contends the government
impermissibly declined to make the motion based upon an unconstitutional motive.
Mills concedes that he never moved to compel the government to enter a § 3553(e)
motion. We, therefore, review for plain error. United States v. Olano, 507 U.S. 725,
730 (1993).

        Mills's original Guidelines sentencing range was 262 to 327 months'
imprisonment. The district court's career-offender and over-representation departures
reduced his range to 163 to 200 months; an additional reduction, based upon § 5K.1,
lowered the Guidelines sentencing range to 114 to 140 months, a range with a bottom
six months below the statutory mandatory minimum of 120 months.1 Absent a §
3553(e) motion by the government, the district court lacked the authority to impose
a sentence below the statutory mandatory minimum unless the government's refusal
to file the motion was based upon an unconstitutional motive. United States v. Hodge,
469 F.3d 749, 754 (8th Cir. 2006); United States v. Pamperin, 456 F.3d 822, 824–25
(8th Cir. 2006).

        The district court ordered the government to submit a formal explanation for
its refusal to file the § 3553(e) motion. In its memorandum, the government offered
two reasons for its refusal: (1) it lacked the authority, pursuant to § 3742(g), to enter
a § 3553(e) motion on remand and (2) the substantial non-assistance departures
already granted by the court made filing the motion inappropriate. The government's
interpretation of § 3742(g) is incorrect. By its plain language § 3742(g) restrains only


      1
       Mills also argues that the district court erred by considering the 5K.1 departure
before it considered the 3553(a) factors. The district court did not err. See Haack, 403
F.3d at 997(outlining the procedure for sentencing); United States v. Williams, 474
F.3d 1130 (8th Cir. 2007) (discussing the role of 5K.1 and § 3553(3) in sentencing
procedure).

                                          -4-
the district court; the government's authority to make recommendations under §
3553(e) is unaffected.

       In addition to its statutory-authority argument, the government also avers that,
given the other non-assistance departures Mills received, filing the motion was not
warranted. The government's point is well taken. We upheld a similar justification in
Pamperin, 456 F.3d at 824–825 (8th Cir. 2006). As in the instant case, the government
in Pamperin filed a § 5K.1 motion but not a § 3553(e) motion after the district court
departed from a 210 to 240 months' Guidelines sentencing range to a 120-month
mandatory-statutory minimum. The district court in Pamperin was not able to
sentence the defendant below the 120-month mandatory minimum even though the
§ 5K.1 departure created a Guidelines sentencing range that was less than that
statutory minimum. We held that the government's "belief no further reduction in
Pamperin's sentence was appropriate" amounted to a permissible policy choice. Id. at
826. A criminal defendant may indeed show, in some circumstance, that the
government improperly declined to make a § 3553(e) motion but Mills does not do so
here. Based upon our holding in Pamperin, we cannot say that the government acted
with an unconstitutional motive. On the record before us, the district court committed
no error, plain or otherwise, in declining to compel the government to file a § 3553(e)
motion.

                              C. Over Representation
      On cross-appeal, the government argues that the district court erred on remand
when it departed based upon Mills's over-represented criminal history. This departure,
the government argues, violates § 3742(g)(2)2, which limits permissible departures on
remand. We agree. On remand, a district court may not impose a sentence outside the
applicable Guidelines sentencing range unless the ground "was specifically and

      2
       Mills was first sentenced on May 9, 2003, ten days after 18 U.S.C. § 3742(g)
was enacted. Therefore, a written statement of reasons was required of the district
court.

                                         -5-
affirmatively included in the written statement of reasons required by section 3553(c)
in connection with the previous sentencing of the defendant prior to the appeal." 18
U.S.C. § 3742(g)(2)(A)3; United States v. Andrews, 390 F.3d 840, 852 (5th Cir. 2004)
(holding that "the plain language of § 3742(g) appears to handcuff any court on
remand").

       In Mills I, the district court erroneously consolidated Mills's prior three burglary
offenses into one offense. Mills's "criminal history calculation went from category VI
to category IV; his offense level went from 34 to 31; his sentencing range went from
262 to 326 months to 151 to 188 months." Mills, 375 F.3d at 690. On remand, the
district court determined that Mills's criminal history was over-represented and
departed downward, causing Mills's criminal history calculation to decline from
category VI to category IV; his offense level to go from 34 to 31; his sentencing range
to go from 262 to 327 months to 151 to 188 months. Criminal history over-
representation does not appear as a grounds for departure in the district court's first
written statement of reasons. Therefore, the departure granted by the district court
violates § 3742(g). We, therefore, reverse.

                                  D. 3553(a) Factors
       The government also alleges that the district court failed to consider a relevant
factor that should have received significant weight. Generally, the government asserts
the sentence imposed did not take into account the seriousness of Mills's offense; the
need to promote respect for the law and to provide just punishment for the offense; the
need to deter criminal conduct and to protect the public; the need to provide Mills with
necessary training and medical or other correctional treatment; and the need to avoid
unwarranted sentencing disparities. Our review of the record shows that the district


      3
      Congress enacted the restriction in order to "prevent sentencing courts, upon
remand, from imposing the same illegal departure on a different theory." H.R. Conf.
Rep. No. 108-66, at 59 (2003), reprinted in 2003 U.S.C.C.A.N. 683, 694.

                                           -6-
court did not engage in the required § 3553(a) analysis. Therefore, we remand to the
district court for re-sentencing with consideration of the § 3553(a) factors.

                                  E. Reassignment
       Lastly, the government requests that this case be reassigned to a different judge
on remand. This court is empowered to do so if we find reassignment "may be just
under the circumstances." United States v. Rogers, 448 F.3d 1033, 1035 (8th Cir.
2006). Applying that standard, we believe reassignment is unwarranted based upon
the record before us.

                                   III. Conclusion
       After a careful review of the record, we remand for re-sentencing consistent
with this opinion.
                        ______________________________




                                          -7-
