                                UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                                No. 08-4959


UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

             v.

JERMAINE VERNARD HAYES,

                  Defendant - Appellant.



Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. N. Carlton Tilley, Jr.,
Senior District Judge. (1:07-cr-00376-NCT-1)


Submitted:    August 13, 2009                 Decided:   August 27, 2009


Before MOTZ and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


David Bruce Freedman, CRUMPLER, FREEDMAN, PARKER & WITT,
Winston-Salem, North Carolina, for Appellant.     Anna Mills
Wagoner, United States Attorney, Harry L. Hobgood, Assistant
United   States Attorney,  Greensboro, North  Carolina,  for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Jermaine Vernard Hayes appeals his sentence.                          Hayes

pled guilty to one count of conspiracy to distribute fifty grams

or   more     of     crack    cocaine,       in     violation      of    21       U.S.C.

§§ 841(b)(1)(A), 846 (2006).           Because he had a prior felony drug

conviction,    his     statutory      sentence      was    a   minimum       of   twenty

years’   imprisonment.          The    Government         moved   for    a    downward

departure under 18 U.S.C. § 3553(e) (2006) * and U.S. Sentencing

Guidelines     Manual        § 5K1.1     based       on     Hayes’s      substantial

assistance and recommended departing below the statutory minimum

sentence by forty percent, which would result in a sentence of

144 months.        Hayes moved for an even lower sentence based on the

sentencing factors under 18 U.S.C. § 3553(a).                     The court denied

Hayes’s motion, granted the Government’s motion, and sentenced

Hayes to 144 months’ imprisonment.                We affirm.




     *
       Section 3553(e) is titled “Limited authority to impose a
sentence below a statutory minimum” and states that

          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.



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              Hayes     argues        the    district       court      had       authority     to

consider the § 3553(a) sentencing factors and impose a sentence

below the twenty-year statutory minimum and below the 144-month

sentence recommended by the Government due to his substantial

assistance.           Pure    legal         questions      regarding         sentencing       are

reviewed de novo.             United States v. Green, 436 F.3d 449, 456

(4th     Cir.    2006).          In     Green,       the    court         noted    that       when

determining what sentence was appropriate, it should consider

the § 3553(a) factors, but stated that “[t]he statutory limits

for both maximum and minimum sentences must be honored except as

statute    otherwise         authorizes.”            Green,     436       F.3d    at    456   n.*

(citing 28 U.S.C. § 3553(e)).                       In United States v. Hood, 556

F.3d   226,     234    n.2    (4th     Cir.     2009),      this     court       rejected     the

argument Hayes now raises, concluding that “in determining the

extent of a departure below a statutory minimum a district court

should    look    to    the    substantial          assistance        factors       listed     in

U.S.S.G. § 5K1.1(a).           United States v. Pillow, 191 F.3d 403, 407

(4th Cir. 1999). . . . [T]he extent of a § 3553(e) departure is

based solely on the defendant’s substantial assistance and other

factors related to that assistance.”                        The court further stated

that   “[o]nly        Congress    could        authorize        a    departure         from   the

statutorily      mandated        minimum        sentence,           and    it     did    so    in

§ 3553(e) for the limited purpose stated there -- ‘to reflect a

defendant’s      substantial           assistance          in   the       investigation        or

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prosecution of another person who has committed an offense.’”

Hood,     556    F.3d    at     233     (quoting          28      U.S.C.       § 3553(e)).

Accordingly, we find the district court correctly found it was

without     authority     to    consider         other    factors       than     those    in

§ 3553(e) and U.S.S.G. § 5K1.1 before ordering a sentence below

the    statutory    minimum.      See       United       States v.      A.B.,     529    F.3d

1275, 1285 (10th Cir.), cert. denied, 129 S. Ct. 440 (2008);

United    States    v.   Williams,      474      F.3d     1130,    1130-31      (8th     Cir.

2007).

             Hayes also argues the sentence was unreasonable.                             We

review a sentence for reasonableness, and “whether inside, just

outside, or significantly outside the Guidelines range,” this

court     applies    a   “deferential            abuse-of-discretion            standard.”

Gall v. United States, 128 S. Ct. 586, 591 (2007).                              This court

first     must   “ensure       that    the       district       court      committed      no

significant      procedural      error.”           Id.    at    597.       Only    if     the

sentence is procedurally reasonable can this court evaluate the

substantive      reasonableness        of    the     sentence,       again      using     the

abuse-of-discretion standard of review.                        Id.; United States v.

Carter, 564 F.3d 325, 328 (4th Cir. 2009).                      We find no error and

conclude the sentence is reasonable.

             Accordingly, we affirm the sentence.                      We dispense with

oral     argument   because      the    facts       and    legal       contentions       are



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adequately   presented   in   the   materials   before   the   court   and

argument would not aid the decisional process.

                                                                AFFIRMED




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