                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 08-5159


UNITED STATES OF AMERICA,

                Plaintiff - Appellant,

           v.

GREGORY LYNN LIVELY,

                Defendant - Appellee.



Appeal from the United States District Court for the District of
Maryland, at Baltimore.     J. Frederick Motz, District Judge.
(1:08-cr-00236-JFM-1)


Argued:   December 1, 2009                 Decided:   August 4, 2010


Before TRAXLER, Chief Judge, and WILKINSON and MICHAEL, Circuit
Judges.


Vacated and remanded by unpublished per curiam opinion.


ARGUED: Michael Joseph Leotta, OFFICE OF THE UNITED STATES
ATTORNEY, Baltimore, Maryland, for Appellant.     Jason Wayne
Shoemaker, SHOEMAKER & CONNOR, LLC, Bethesda, Maryland, for
Appellee. ON BRIEF: Rod J. Rosenstein, United States Attorney,
Baltimore, Maryland, for Appellant.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

                       The    government       appeals       Gregory    Lively’s     sentence       of

one    day         in        prison    and     a    lifetime    of    supervised     release       for

distribution of child pornography.                              The government argues that

the district court was not authorized to impose a sentence below

the statutory mandatory minimum of five years because counsel

for the government did not make a substantial assistance motion

under 18 U.S.C. § 3553(e).                            The government further argues that

even if the district court was authorized, it erred by departing

below the mandatory minimum for reasons unrelated to substantial

assistance. 1                 We agree with the government that the district

court is not authorized to impose a sentence below the statutory

minimum in the absence of a § 3553(e) motion.                                     There remains a

question, however, as to whether the government was obligated to

make       a       §    3553(e)        motion       under     the    terms   of    Lively’s       plea

agreement.                   If   it   was,     the      district    court   is    authorized      to

impose         a       sentence        below       the   statutory     minimum     but     only    for

reasons                related          to         Lively’s         substantial       assistance.

Accordingly,                 we   vacate      Lively’s       sentence    and      remand    for   the

district court (1) to decide in the first instance whether the


       1
       Because we vacate Lively’s sentence on other grounds, we
do not consider the government’s additional arguments that the
district court could not “deem” served the one day in prison and
that Lively’s sentence was substantively unreasonable.



                                                         2
government was obligated to make a § 3553(e) motion and (2) to

impose an appropriate sentence.



                                      I.

          Lively      first      attracted      the     attention          of      law

enforcement when he purchased from an undercover website a video

of an eight-year-old girl being raped.                Federal agents traced

the purchase to Lively’s computer and his home address.                           When

they arrived to make an arrest, they found a depressed young man

in his early 20s living out of his parents’ basement.                           Lively

offered no resistance, confessed his guilt, and pointed agents

to his computer where they found approximately 1300 images of

child   pornography.       Lively     told     law    enforcement         that    his

involvement    with    child     pornography    was    limited       to     trading

pictures and videos online, occasionally purchasing but never

selling or creating them.          The pictures found on his computer

featured adults having sex with various prepubescent children,

some as young as eight years old.            Lively said he felt guilty on

several occasions, but always returned to trading.

          Lively      eventually     pled     guilty    to     one        count     of

distribution     of      child      pornography        under         18      U.S.C.

§§ 2254(a)(2)(A), 2256.        The plea agreement noted that Lively’s

sentence was limited by statute to a maximum term of 20 years

imprisonment and a minimum term of 5 years.                  Lively agreed to

                                      3
cooperate with the government and, if instructed, to act in an

undercover capacity to assist in criminal investigations.             He

accepted the government’s guideline calculation of offense level

37, which incorporated a three-level reduction for substantial

assistance.   Regarding the obligations of the U.S. Attorney, the

agreement provided as follows:

     If this Office determines that the Defendant has
     provided substantial assistance in an investigation or
     prosecution of others, and if he has fully complied
     with all of his obligations under this agreement, this
     Office will make a motion, pursuant to U.S.S.G.
     § 5K1.1 and 18 U.S.C. § 3553(e), requesting that the
     Court sentence the Defendant in light of the advisory
     factors set forth in § 5K1.1(a)(1)-(5) and requesting
     a downward departure of up to two (2) levels.      The
     Court is authorized to grant such a departure pursuant
     to 18 U.S.C. § 3553(e).   This Office shall have sole
     discretion in determining whether the Defendant has
     provided such substantial assistance and, therefore,
     whether to make any motion pursuant to § 5K1.1 and 18
     U.S.C. § 3553(e). . . . If this Office makes a motion
     for a departure under § 5K1.1 and 18 U.S.C. § 3553(e),
     the Defendant is not bound by the departure level
     recommended by this Office. . . . It is understood
     that, even if such a motion is made, the sentence to
     be imposed on the Defendant remains within the sole
     discretion of the Court.

J.A. 10-11.   The agreement also provided that the U.S. Attorney

“waives any right to appeal from any sentence within or above

the advisory guidelines range resulting from an adjusted base

offense   level   of   35.”   J.A.   11.   The   agreement   would   not,

however, constrain the U.S. Attorney from appealing a sentence

“that is illegal or that . . . is less than any applicable

statutory mandatory minimum provision.”      J.A. 11.

                                     4
            At     sentencing        Lively        put      on      several      witnesses,

including     members       of    his   family       and      his      therapist.        They

testified    that      he   had    recently      been      making      great   strides     in

therapy and that he was not a danger to society.                          Drawing on the

therapist’s testimony in particular, defense counsel argued that

no jail time and a sentence of lifetime supervised release was

appropriate.

            The government moved for a two-level departure under

§ 5K1.1 and advocated for an offense level of 35 and a sentence

of 168 months — the low end of the guideline range for offense

level 35, criminal history category I.                      The government told the

court that Lively had provided substantial assistance to the

government by allowing federal agents to use his online screen

name and related information to investigate two of his child

pornography       trading        partners.         One     of     these    partners       was

prosecuted       and    sentenced       to    30     years        in    prison    for    the

distribution of child pornography.                    At no point, however, did

the government expressly make a motion, either verbally or in

writing, under § 3553(e).

            The     district       court     asked      the      government      about   the

existence of a mandatory minimum and the court’s authority to

sentence below that minimum.               The following colloquy transpired:

     THE COURT:             Is there a mandatory minimum?



                                             5
       MS. GREENBURG:    Your Honor, there’s a                        five-year
       mandatory minimum, but of course, there                        is a 5K
       motion.

       THE COURT:           Which takes it under?

       MS. GREENBURG:      Your Honor, the position of the
       office, I hate to — the position of the office is that
       the 5K only gets it — because the advisory guideline
       range is well above the mandatory minimum, it gets
       down the two-levels doesn’t get below the —

       THE COURT:     What’s the legality of that?     I mean,
       some motions for downward departure — I mean, there’s
       a legal question here, whether or not a motion for
       cooperation takes it under the mandatory minimum.

       MS. GREENBURG: If the cooperation is of — to the
       extent to get below the mandatory minimum.     In this
       case the Court would have to find that the cooperation
       was worth —

       THE COURT:           That’s what the state of the law is?

       MS. GREENBURG: I believe so.

J.A.   76.        Shortly     after     this    colloquy,     the   district       court

announced its sentence.

             The district court imposed a sentence of one day of

imprisonment and a lifetime of supervised release.                              Although

Lively had not previously been incarcerated, the district court

“deemed”     the    one     day    of   imprisonment     to    have    already        been

served.       The    district       court      began   its    explanation        of   the

sentence     by    granting       the   government’s    motion      for     a   downward

departure.         Instead    of    departing     downward     by     two   levels     as

recommended by the government, the court departed downward by

eleven levels, reasoning that “the two levels suggested by the


                                            6
Government clearly is inadequate, since [Lively’s] cooperation

resulted in a 30-year incarceration of someone who was molesting

their grandchildren.”           J.A. 80-81.            Believing an eleven-level

departure    brought       Lively’s   range      below    the   mandatory     minimum

(which would have required a twelve-level departure), the court

then proceeded to vary the sentence all the way down to one day

of imprisonment.          In explaining the variance below the statutory

minimum, the district court diligently applied the § 3553(a)

factors.     Finally, the court imposed a lifetime of supervised

release    under    terms    including      the    installation      of    monitoring

software on computers in Lively’s home.

            After     announcing      its       sentence,    the   district       court

acknowledged       that    there   remained        a   “real    question     [as   to]

whether I’m properly applying the sections — the factors under

3553,     taking     the     guidelines         into     account.”         J.A.    92.

Ultimately, however, the court concluded that “this sentence is

the right sentence.”         J.A. 95.     The government now appeals.



                                         II.

            We     agree    with   the   district       court   that   the    primary

issue is whether it correctly applied § 3553.                        We also agree

with the parties that, on this issue, United States v. Allen,

450 F.3d 565 (4th Cir. 2006) controls.                      Our interpretation of



                                            7
Allen, however, requires a different result from that reached by

the district court and that requested by either party.

              In    Allen    we     held    that     district      courts    could     not

sentence defendants below a statutory minimum unless §§ 3553(e)

or (f) permitted them to do so.                      450 F.3d at 568.           Section

3553(f)      does    not    apply    to    this    case.         Accordingly,      Allen’s

holding    requires        this   panel    to     vacate    and    remand    unless       the

conditions of § 3553(e) are met.                  That provision reads:

       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. Such sentence shall be imposed
       in   accordance   with   the   guidelines   and   policy
       statements   issued   by   the   Sentencing   Commission
       pursuant to section 994 of title 28, United States
       Code.

Citing Melendez v. United States, 518 U.S. 120 (1996), the panel

in Allen held that § 3553(e) was not satisfied if the government

merely moved for a departure under § 5K1.1.                        Allen, 450 F.3d at

568.    Rather, “before a district court could sentence below a

statutory     mandatory       minimum,      the    government       must    specifically

move [under § 3553(e)] for such departure.”                       Id.

              Applying this rule to the facts before it, the panel

in   Allen    held    that    the    district       court   had     erred    because      it

departed      below    the    statutory          minimum    in     the   absence     of    a

§ 3553(e) motion.            Id. at 570.          In determining that no motion


                                             8
had been made, the panel relied primarily on the fact that the

government had made no mention of § 3553(e) at sentencing or in

its briefs.          It also noted that the plea agreement had referred

to   the   statutory       minimum       but       not     §    3553(e),         and    that   the

agreement contained an exception to the government’s waiver of

appeal for sentences below the statutory minimum.                                Id. at 569.

               The    panel   rejected         the    argument            that    the   district

court    was    authorized        to   depart        below          the    mandatory     minimum

because    the       government    had    intended             to    make    a    motion   under

§ 3553(e).       Counsel for the government actually admitted at oral

argument:        (1) that the government had intended to move under

§ 3553(e); (2) that it was official policy for the motions to be

made    with    5K1.1    motions;      and      (3)      that        the    parties      and   the

district court had worked from the premise that the § 5K1.1

motion encompassed § 3553(e).                  Counsel for the defendant further

represented that his client would not have pled guilty had the

court    been    constrained.            The       panel       nevertheless        interpreted

§ 3553(e) strictly and held that no motion had been made and

that remand was therefore necessary.                     Id.

               In a final footnote, the panel observed that “[g]iven

counsel for the government's concession at oral argument that he

intended the § 5K1.1 motion to include, albeit sub silentio, a

§ 3553(e) motion as well, one would assume that the government

has obligated itself to do so on remand.”                                   Id. at 570 n.5.

                                               9
Assuming the government made that motion on remand, the panel

emphasized that the district court should still calculate the

guideline range and assess under the § 3553(a) factors whether a

guideline sentence would be appropriate.

               We think it is clear from Allen that the government

did not make a § 3553(e) motion in this case.                       Section 3553(e)

was   never     mentioned      during      the   sentencing     hearing,       and    no

written   motion      citing    §    3553(e)     was    submitted   to   the    court.

Regardless of what the government intended at the time — and

unlike    in    Allen,   the        government     here    denies    that   it       ever

intended to make a motion under § 3553(e) — it did not make a

§ 3553(e)      motion.      Accordingly,         the    district    court   was       not

authorized to depart or impose a variance below the statutory

minimum. 2

             Lively    argues       that   Allen   is     distinguishable      because

the plea agreement in that case did not mention § 3553(e) while

the plea agreement in this case does.                      We do not think this

difference is material.             The reference in the plea agreement to

the government making a motion “under § 5K1.1 and 18 U.S.C.


      2
       Lively argues that even if § 3553(e) did not authorize the
imposition of a sentence below the statutory minimum, the
district court retains discretion to impose a sentence outside
the statutory range under United States v. Booker, 543 U.S. 220
(2005).    This argument is foreclosed by circuit precedent.
United States v. Robinson, 404 F.3d 850, 862 (4th Cir. 2005).



                                           10
§ 3553(e)” suggests that the government intended to make both

motions upon a showing of substantial assistance.                        It does not

establish    that     the   government      actually      made    such      a    motion.

Similarly, the colloquy concerning the mandatory minimum that

transpired     between      the    district      court     and    the       government

suggests only       that    the   government     believed    a    §    5K1.1      motion

permitted    the     district     court    to    depart   below       the    mandatory

minimum.     J.A. 76 (“Your Honor, there’s a five-year mandatory

minimum, but of course, there is a 5K motion.”); id. (“If the

cooperation is of — to the extent to get below the mandatory

minimum.     In this case the Court would have to find that the

cooperation     was      worth     [an     amount    taking       it        below    the

minimum].”).        To the extent Lively is arguing that we should

imply from this colloquy that the government in fact made a

§ 3553(e) motion, we decline to do so.                    There are no implied

§ 3553(e) motions.          Either the government expressly makes the

motion or it doesn’t.

             The reference in the plea agreement to the government

making a motion “under § 5K1.1 and 18 U.S.C. § 3553(e)” is not,

however, meaningless.           Indeed, we think that, as in Allen, the

government may have been obligated to make a § 3553(e) motion.

The plea agreement expressly provides that the government “will

make   a   motion,    pursuant     to     U.S.S.G.   §    5K1.1    and      18    U.S.C.

§ 3553(e)”    if    it   determines       that   Lively   provided       substantial

                                          11
assistance.        If the government had wanted to reserve discretion

to make one or the other or both motions even after finding

substantial assistance, it could have simply replaced the “and”

with an “or”.           In fact, the phrase appears three times in the

relevant portion of the plea agreement, and the word “and” is

used in each.

             We    need     not    decide         this       issue    here       or       address    the

government’s position at oral argument that, read as a whole,

the   plea      agreement         is    best          read    to      give       the       government

discretion      to     make   a    §    3553(e)         motion.            The    issue        was   not

briefed   by      the    parties,           and       interpreting         the    agreement          may

require findings of fact.                    Accordingly, the district court on

remand    should        decide         in     the       first      instance           whether        the

government      was     contractually             obligated          to    make       a    §   3553(e)

motion    after        determining           that       Lively        provided            substantial

assistance.

             Finally, we note that if the government was obligated

to make a § 3553(e) motion, the district court may not, as it

did   here,       justify     imposing            a    sentence       below       the       statutory

minimum based on the § 3553(a) factors.                               District courts have

discretion        to    impose     a        non-guideline            sentence          between       the

statutory maxima and minima, provided the sentence comports with

procedural and substantive reasonableness.                                See United States v.

Curry,    523     F.3d    436,         439    (4th       Cir.      2008).             Applying       the

                                                  12
§ 3553(a)     factors        is     just     one     requirement         of   procedural

reasonableness.         If     the    government          was   obligated     to   make   a

§ 3553(e)     motion,    then        and   only     then    is    the   district    court

authorized to impose a sentence below the mandatory minimum.

Furthermore, while the district court may justify imposing the

statutory minimum based solely on the § 3553(a) factors, it may

justify imposing a sentence below the minimum only by reference

to the defendant’s substantial assistance.                          United States v.

Hood,   556    F.3d     226,       234     n.2     (4th    Cir.    2009);     18   U.S.C.

§ 3553(e).     “As the plain language of the statute makes clear,

§ 3553(e) allows for a departure from, not the removal of, a

statutorily     required          minimum    sentence.”            United     States      v.

Pillow, 191 F.3d 403, 407 (4th Cir. 1999).                              “[T]he district

court should use the factors listed in § 5K1.1(a)(1)-(5) as its

guide when it selects a sentence below the statutorily required

minimum sentence.”       Id.



                                            III.

            For the reasons stated, we vacate Lively’s sentence

and remand for the district court both to determine whether the

government obligated itself to make a § 3553(e) motion and to

impose a new sentence consistent with this opinion.



                                                                  VACATED AND REMANDED

                                             13
