                   United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                  ___________

                                Nos. 06-2284/2497
                                  ___________

United States of America,           *
                                    *
     Appellee/Cross-Appellant,      *
                                    * Appeals from the United States
     v.                             * District Court for the Northern
                                    * District of Iowa.
Rodney Jay Jensen,                  *
                                    *
     Appellant/Cross-Appellee.      *
                               ___________

                             Submitted: April 23, 2008
                                Filed: November 12, 2009
                                 ___________

Before COLLOTON and GRUENDER, Circuit Judges, and GOLDBERG,1 Judge.
                         ___________

COLLOTON, Circuit Judge.

       The district court sentenced Rodney Jay Jensen to a term of 180 months’
imprisonment after he was convicted of conspiracy to distribute 500 grams or more
of methamphetamine and possession with intent to distribute 500 grams or more of
methamphetamine. Jensen was subject to a mandatory term of life imprisonment
under 21 U.S.C. §§ 841(b)(1)(A) and 851, but the government moved the district
court, pursuant to USSG § 5K1.1 and 18 U.S.C. § 3553(e), to reduce the sentence


      1
       The Honorable Richard W. Goldberg, Judge, United States Court of
International Trade, sitting by designation.
based on Jensen’s provision of substantial assistance. The court imposed a sentence
of 180 months’ imprisonment, and both Jensen and the government appealed. We
vacated the judgment of the district court, because the court impermissibly considered
factors unrelated to Jensen’s assistance in making a reduction under § 3553(e). We
remanded for imposition of a sentence of 216 months’ imprisonment, after rejecting
the government’s contention that the degree of reduction based solely on Jensen’s
assistance was unreasonable. United States v. Jensen, 493 F.3d 997 (8th Cir. 2007).

       Jensen petitioned for a writ of certiorari. The Supreme Court granted the
petition, vacated our judgment, and remanded the case for further consideration in
light of Gall v. United States, 128 S. Ct. 586 (2007). See Jensen v. United States, 128
S. Ct. 1069 (2008). We asked the parties to file supplemental briefs, and both parties
directed us to the following statement of the district court at Jensen’s sentencing:

      And for the extent of the departure, I’m going to depart 40 percent for
      substantial assistance. Under existing Eighth Circuit law, I find what the
      defendant has done is not extraordinary for purposes of a 50 percent or
      greater departure. He did debrief. I am – and I am giving him credit for
      testimony in the grand jury, although the government did not give him
      credit. That would reflect some of the difference between the
      government’s recommendation of 10 percent and my finding of 40
      percent. I think what the defendant did here was about average in terms
      of what defendants do in cases. And so if the Eighth Circuit were to
      adopt a different approach than saying 50 percent is extraordinary and
      saying 50 percent is an average departure like I suggested in my recent
      decision in United States v. Saenz, then I would depart upward to 50 or
      even 55 percent, but I have to follow the law as it is, not the law as I
      wrote that I thought it should be. And so I think because this is not
      extraordinary it’s entitled to a 40 percent departure, but because it’s well
      within the average range and the average departure is 49.9 percent for a
      substantial assistance motion, if the circuit court changes their view, then
      I would have given at least a 50 percent departure.

(S. Tr. 28-29).

                                          -2-
       Jensen argues in his supplemental brief that the district court “relied on and was
restricted by” this court’s decision in United States v. Dalton, 404 F.3d 1029 (8th Cir.
2005), which held in the context of a substantial-assistance reduction that “[a]n
extraordinary reduction must be supported by extraordinary circumstances,” and cited
United States v. Enriquez, 205 F.3d 345, 348 (8th Cir. 2000), for the proposition that
a 50 percent downward departure, where the government recommended a 20 percent
departure, was “an extraordinary sentence reduction.” Dalton, 404 F.3d at 1033-34.
See United States v. Saenz, 428 F.3d 1159, 1162 (8th Cir. 2005) (explaining that
Dalton “cited favorably our observation elsewhere that a 50 percent downward
departure was an ‘extraordinary sentence reduction’”) (citing Dalton, 404 F.3d at
1033, and Enriquez, 205 F.3d at 348); see also United States v. Kendall, 446 F.3d 782,
785 (8th Cir. 2006) (citing Enriquez and Saenz).

       Jensen contends that “[t]he district court clearly would have reduced Jensen’s
sentence by more than 50 percent based on his substantial assistance in this case were
it not for this Court’s precedent requiring extraordinary circumstances.” (Jensen
Supp. Br. 3). He argues that the Supreme Court in Gall rejected an appellate rule that
requires extraordinary circumstances to justify an extraordinary reduction, and
rejected the use of “a rigid mathematical formula that uses the percentage of a
departure as the standard for determining the strength of the justifications required for
a specific sentence.” See Gall, 128 S. Ct. at 594-95. Jensen urges this court to
remand the case for the district court to resentence him in light of Gall and its
rejection of an extraordinary circumstances rule.

       The government, in its supplemental brief, contends that the district court’s
decision was correct based on then-existing Eighth Circuit precedent, but
acknowledges that since then, the Supreme Court in Gall rejected use of an
“extraordinary circumstances” requirement or “a rigid mathematical formula.” The
government concludes that “[t]he district court understandably erred in its substantial
assistance departure decision when it believed that it lacked authority to depart by

                                          -3-
50% or more,” and that “the case should be remanded to the district court for
reconsideration on this issue.” (United States Supp. Br. 5).

       We held this case pending a decision by the en banc court in United States v.
Burns, 577 F.3d 887 (8th Cir. 2009) (en banc), concerning whether and how Gall
should apply in the context of reductions under § 3553(e). The en banc court in Burns
saw “no basis upon which to say that the Court’s admonitions [in Gall] regarding the
highly deferential view that appellate courts should take towards a district court’s
appraisal of the § 3553(a) factors should not also apply to the district court’s findings
and determinations regarding the five § 5K1.1 factors as it calculates the substantiality
of the defendant’s assistance when ruling on the government’s motion for a reduction
under § 3553(e).” 577 F.3d at 895. The court in Burns concluded that when
considering the reasonableness of reductions under § 3553(e), as when evaluating
variances under § 3553(a), the court of appeals must rule after “putting aside all
notions of exceptional/extraordinary circumstances, departure percentages,
proportionality review, and similar data-based standards of review.” Id. at 896.2

        We agree with the interpretation of the transcript of Jensen’s sentencing hearing
that is advanced by both parties. The record reflects that the district court believed
that it lacked authority to reduce Jensen’s sentence by fifty percent of the statutory
minimum penalty unless Jensen’s assistance was “extraordinary.” See Jensen I, 493
F.3d at 1001 (“The court here determined that Jensen’s assistance was not
‘extraordinary’ within the meaning of our cases, and that the reduction in sentence


      2
        The en banc court also reaffirmed our decision in United States v. Williams,
474 F.3d 1130, 1131 (8th Cir. 2007), applied in Jensen I, 493 F.3d at 999, that a
district court may not consider factors unrelated to assistance to justify a reduction
under § 3553(e). Burns, 577 F.3d at 894. On remand, Jensen does not challenge this
portion of Jensen I or seek a remand for consideration of factors unrelated to
assistance. We reinstate our holding in Jensen I that the district court’s reduction
based on factors unrelated to assistance was impermissible.

                                          -4-
should be less than fifty percent of a starting point expressed in a number of
months.”). As of May 2006, when Jensen was sentenced, the district court’s
understanding of circuit precedent was reasonable, at a minimum, in light of Dalton
and Saenz. See also United States v. Meyer, 452 F.3d 998, 1001 (8th Cir. 2006)
(“Meyer’s sentence represented a fifty percent increase from his guidelines range.
This is an extraordinary variance from the presumptive sentencing range.”), cert.
denied, 128 S. Ct. 2953 (2008). The decisions in Gall and Burns changed the law of
the circuit and granted authority to the district courts that they lacked under our pre-
Gall precedents, including the authority to make certain major reductions in the
absence of extraordinary assistance. Accordingly, this case should be remanded for
resentencing in light of Gall and Burns. See Moore v. United States, 129 S. Ct. 4, 5
(2008) (per curiam).3

       The judgment of the district court is vacated, and the case is remanded for
resentencing in light of Gall v. United States, 128 S. Ct. 586 (2007), and United States
v. Burns, 577 F.3d 887 (8th Cir. 2009) (en banc). We express no view on how the
district court, at resentencing, should exercise its discretion to evaluate Jensen’s
assistance or the reduction warranted by that assistance.
                             ______________________________




      3
         The panel majority in United States v. Brunken, 581 F.3d 635 (8th Cir. 2009),
concluded that our opinion in Jensen I established that “a fifty percent departure (six
levels)” would “almost certainly be affirmed,” even in the absence of extraordinary
assistance. Id. at 638 (citing Jensen I, 493 F.3d at 1001). Jensen I affirmed a
reduction of six guideline ranges that adjusted the sentence from life imprisonment to
216 months (i.e., forty percent, assuming the district court’s equation of “life” with
360 months), while the district court’s contemplated reduction of “fifty percent” (from
life to 180 months) would require a reduction of eight guideline ranges. In any event,
the district court in this case obviously sentenced Jensen before the decision in Jensen
I, so Brunken is not controlling.

                                          -5-
