                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 12-6650


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

           v.

GARY NELSON GAYNOR,

                Defendant – Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Greenville. Malcolm J. Howard,
Senior District Judge. (4:05-cr-00001-H-2)


Argued:   January 31, 2013                 Decided:   April 18, 2013


Before MOTZ, KING, and AGEE, Circuit Judges.


Vacated and remanded by unpublished per curiam opinion.


ARGUED: G. Alan DuBois, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Raleigh, North Carolina, for Appellant.       Kristine L. Fritz,
OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina,
for Appellee.    ON BRIEF: Thomas P. McNamara, Federal Public
Defender, Raleigh, North Carolina, for Appellant.      Thomas G.
Walker,   United  States   Attorney,   Jennifer   P.  May-Parker,
Assistant United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

        Defendant     Gary    Nelson      Gaynor         appeals      from     the     district

court’s denial of his 2012 motion for a reduction of sentence,

sought pursuant to 18 U.S.C. § 3582(c)(2) and Amendment 750 to

the Sentencing Guidelines.              Amendment 750 reduced the penalties

applicable       to   cocaine      base     (“crack”)              offenses,     and     Gaynor

maintains that the court erred in ruling that the amendment did

not lower his Guidelines range.                       As explained below, we are

constrained to agree, and thus vacate and remand.



                                           I.

                                           A.

        On September 6, 2005, Gaynor pleaded guilty in the Eastern

District    of    North      Carolina     to       two    offenses:          conspiracy      to

distribute and possess with intent to distribute more than fifty

grams of crack, a quantity of powder cocaine, and a quantity of

marijuana,    in      violation    of     21       U.S.C.      §    846   (the   “conspiracy

offense”); and possession of a firearm in connection with a drug

trafficking offense, in contravention of 18 U.S.C. 924(c) (the

“firearm    offense”).           For    sentencing            purposes,      Gaynor’s      base

offense level for the conspiracy offense was 34.                             After a three-

level    adjustment       for    acceptance          of       responsibility,          Gaynor’s

total offense level was 31, which, combined with his criminal

history    category      of     III,   resulted          in    an    advisory     Guidelines

                                               2
range of 135 to 168 months in prison.                   The statutory minimum for

the conspiracy offense was 120 months, and the statutory minimum

on   the    firearm     offense       was       sixty    months,        to     be     served

consecutively.

     On December 6, 2005, after granting a downward departure on

the basis of the government’s substantial assistance motion, the

district court sentenced Gaynor to concurrent terms of 120 and

sixty months. 1     Gaynor’s 120-month sentence represented an eleven

percent downward departure from the bottom of the applicable

Guidelines     range     (135    months),         as    well       as   a      sixty-month

departure from the aggregate statutory minimum (180 months).

     More    than   three     years    thereafter,        on       January      14,    2009,

Gaynor     moved   in   the   district       court      for    a    reduction       of    his

sentence, pursuant to 18 U.S.C. § 3582(c)(2) and Amendment 706

to   the    Guidelines,       which    was      effective          in   2007    and      made

retroactive by the Sentencing Commission in 2008.                           Amendment 706

reduced the base offense levels applicable to crack offenses by

     1
       The government’s substantial assistance motion advised the
district court that Gaynor had assisted the prosecutors and law
enforcement officers by providing evidence on the location of a
fugitive who had been federally indicted on conspiracy and
narcotics offenses.    The motion requested the court to “grant
the Government’s motion to reduce the defendant’s sentence based
upon his substantial assistance in [the conspiracy offense] and
sentence   the    defendant   to   120   months’   imprisonment.”
Government’s Motion for Downward Departure Due to Substantial
Assistance at 3, United States v. Gaynor, No. 4:05-cr-00001
(E.D.N.C. Dec. 2, 2005), ECF No. 39.



                                            3
two    levels,    and    the   retroactive       application        thereof    reduced

Gaynor’s      base   offense    level     from    34    to    32.         Factoring   in

Gaynor’s         three-level        adjustment          for         acceptance        of

responsibility, his total offense level then became 29, and his

Guidelines range became 108 to 135 months.                    As Gaynor recognized

in his 2009 sentence reduction request, however, the statutory

minimum on the conspiracy offense remained at 120 months, and

the minimum sentence was applicable to him if the government’s

2005       substantial   assistance       motion       was    filed       pursuant    to

Guidelines section 5K1.1, as opposed to the provisions of 18

U.S.C.      § 3553(e).         By   way   of     explanation,         a    substantial

assistance motion under § 3553(e) authorizes a sentence below

the statutory minimum, whereas such a motion under Guidelines

section 5K1.1 authorizes only a departure from the Guidelines

range. 2


       2
       Pursuant to 18 U.S.C. § 3553(e), “[u]pon 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.”     Section 3553(e) further provides that
“[s]uch sentence shall be imposed in accordance with the
guidelines and policy statements issued by the Sentencing
Commission.”   Meanwhile, Guidelines section 5K1.1 provides only
for a departure from the applicable Guidelines range, specifying
that, “[u]pon motion of the government stating that the
defendant    has   provided    substantial  assistance  in   the
investigation or prosecution of another person who has committed
an offense, the court may depart from the guidelines.”



                                          4
       Gaynor’s     2009    motion     for    a   sentence     reduction     explained

that       his   original    sentence        of   120   months        “represented     an

approximately       11%     downward    departure       from    the    bottom    of   the

applicable       guideline    range.”         J.A.   16. 3     Gaynor     requested      a

comparable reduction from the 108-month bottom of his revised

Guidelines       range,     seeking    a     sentence     of    ninety-six       months,

“unless a higher statutory minimum sentence is found to apply.”

Id.    On February 25, 2009, the district court granted Gaynor’s

sentence reduction request, fixing his revised Guidelines range

at 120 to 135 months (replacing the lower end of the revised

range — 108 months — with the statutory minimum of 120 months

for the conspiracy offense).                  As a result, the court reduced

Gaynor’s sentence on the conspiracy offense from 120 months to

106 months.         The court’s amended judgment made the following

explanation:

       The previous term of imprisonment imposed was less
       than the guideline range applicable to the defendant
       at the time of sentencing as a result of a departure
       . . ., and the reduced sentence is comparably less
       than the amended guideline range.

Id. at 19.

       After      Gaynor’s      2009         sentence        reduction     had        been

memorialized in an amended judgment, the government requested


       3
       Citations herein to “J.A. ____” refer to the contents of
the Joint Appendix filed by the parties in this appeal.



                                             5
reconsideration     by    the    district   court.        In     so   moving,   the

prosecutors contended that the court lacked any authority to

reduce the sentence below the statutory minimum of 120 months on

the conspiracy offense.          On June 12, 2009, the court rejected

that    contention,      specifying,   pursuant      to    § 3553(e),     that    a

district    court   is   authorized    to   impose    a   sentence      below   the

statutory    minimum      when   the   government        files    a   substantial

assistance motion.         In its order, the court further explained

that,

       [b]ecause 18 U.S.C. § 924(c)(1) requires imposition of
       a consecutive sentence of at least 60 months’
       imprisonment for possession of a firearm during and in
       relation to a drug trafficking offense, the 120-month
       sentence imposed [on December 6, 2005] could only have
       been accomplished by utilizing 18 U.S.C. § 3553(e) to
       run the sentence on [the firearm offense] concurrent
       with the [conspiracy offense].

J.A. 35.

       As the district court recognized in the foregoing order, it

had possessed the authority in 2005 to sentence Gaynor below the

statutory minimum.        The court explained further that, “in view

of the fact that the reduction was for fourteen months, the

court is not willing to modify its February 25, 2009, order

reducing    defendant’s     sentence   as    to   [the    conspiracy     offense]

from 120 months to 106 months.”             J.A. 36.      Thus, Gaynor’s 106-

month sentence on the conspiracy offense was left undisturbed.




                                       6
No appeals were pursued from the court’s 2009 sentence reduction

rulings.

                                          B.

     On March 9, 2012, Gaynor moved for an additional sentence

reduction, and on this occasion his motion was predicated on

Amendment 750 of the Guidelines.               That amendment was made by the

Sentencing    Commission      in    November      2010,   after    congressional

enactment of the Fair Sentencing Act (“FSA”) earlier that year.

See Fair Sentencing Act of 2010, Pub. L. No. 111–220, 124 Stat.

2372 (2010).      Amendment 750 to the Guidelines, like Amendment

706, retroactively reduced the base offense levels for crack

offenses.    In his 2012 sentence reduction motion, Gaynor argued

that Amendment 750 had reduced his base offense level to 30, and

that, factoring in his three-level adjustment for acceptance of

responsibility, his total offense level is now 27.                  As a result,

according    to   Gaynor,     his    revised       Guidelines     range   on   the

conspiracy offense should be 87 to 108 months.                     Because this

revised range is below the 120-month statutory minimum for that

offense, Gaynor maintained that the statutory minimum becomes

both the top and the bottom of his revised Guidelines range,

resulting    in   a   range   of    120    to    120   months.     Notably,    the

government agrees that Gaynor’s revised Guidelines range on the

conspiracy offense — taking account of Amendment 750 — is now

120 to 120 months.      See Br. of Appellee 17.

                                          7
       On   March        12,     2012,     the       probation      office    submitted      a

memorandum         to    the     district        court     evaluating        Gaynor’s     2012

sentence reduction motion.                  The memorandum recommended that the

motion be denied, explaining that Gaynor was not eligible for an

additional reduction, and asserting that,

       [a]lthough application of the Fair Sentencing Act of
       2010   retroactive  amendments   results  in   a  lower
       guideline imprisonment range, it does not have the
       effect of lowering the defendant’s guideline range
       because the low end of the revised range in [the
       conspiracy offense] is the mandatory minimum sentence.

J.A. 40.       On March 30, 2012, adopting the probation office’s

conclusion, the court denied Gaynor’s 2012 sentence reduction

motion, and his sentence on the conspiracy offense remained at

106    months.          Gaynor      has   timely       noticed     this    appeal,     and   we

possess jurisdiction pursuant to 28 U.S.C. § 1291.



                                                 II.

       We   review       for     abuse     of     discretion        a     district     court’s

decision      on    whether         to    reduce       a   sentence       under   18    U.S.C.

§ 3582(c)(2).           See United States v. Goines, 357 F.3d 469, 478

(4th   Cir.    2004).          We    review       de   novo,      however,    a   sentencing

court’s     determination            of    the     scope     of    its     authority     under

§ 3582(c)(2).           See United States v. Dunphy, 551 F.3d 247, 250

(4th Cir. 2009).




                                                 8
                                           III.

                                            A.

       Generally, a sentencing court is not entitled to “modify a

term   of     imprisonment    once    it    has    been    imposed.”      18    U.S.C.

§ 3582(c).         Nevertheless, a court possesses authority to reduce

a sentence “in the case of a defendant who has been sentenced to

a term of imprisonment based on a sentencing range that has

subsequently been lowered by the Sentencing Commission.”                            Id.

§ 3582(c)(2).        In those circumstances, the court may reduce the

sentence, “after considering the factors set forth in section

3553(a)       to   the   extent    that    they    are    applicable,    if    such   a

reduction is consistent with applicable policy statements issued

by the Sentencing Commission.”              Id.

       As the Supreme Court explained in Dillon v. United States,

the applicable “policy statements” referred to in § 3582(c) are

those found in Guidelines section 1B1.10.                    See 130 S. Ct. 2683,

2691     (2010).         Pursuant     to     subpart       (b)(2)(B)    thereof,      a

sentencing court, upon granting a sentence reduction, may only

impose    a    sentence    below    the    amended       Guidelines    range   if   the

original sentence was below the then-applicable Guidelines range

due to a substantial assistance motion.                     In such a situation,

the court possesses the authority to make a sentencing reduction

that is “comparably less” than the amended Guidelines range.

See    USSG    § 1B1.10(b)(2)(B).           A     reduction    below    the    amended

                                            9
Guidelines    range   is    not    authorized,   however,   if   the   amended

Guidelines range is not lower than the prior range.

                                       B.

     In this appeal, Gaynor maintains that he is eligible for a

sentence     reduction     under   Amendment     750   because   his   amended

Guidelines range is now 120 to 120 months.              According to Gaynor,

this Guidelines range is lower than his 2009 amended Guidelines

range of 120 to 135 months.           He thus contends that the district

court erred in denying his 2012 motion for a sentence reduction,

in   that    the   court    erroneously     perceived    that    his   amended

Guidelines range had not been lowered.             The government responds

that, because Gaynor’s original sentence in 2005 was based on

the 120-month statutory minimum — rather than on the applicable

Guidelines range — a sentence reduction is not authorized by

§ 3582(c).

                                       C.

     Put succinctly, Gaynor’s new Guidelines range of 120 to 120

months is lower than his 2009 Guidelines range of 120 to 135

months. 4    Although the bottom of his Guidelines range did not


     4
       In ruling on Gaynor’s 2012 sentence reduction motion, the
district court failed to explicitly identify the amended
Guidelines range now applicable to Gaynor.          Inasmuch as
Amendment 750 lowered the Guidelines range on the conspiracy
offense to a range below the statutory minimum, we are satisfied
with the parties’ agreement that Gaynor’s Guidelines range is
now 120 to 120 months.    See United States v. Carter, 595 F.3d
(Continued)
                                       10
change    from   2009   to    2012,     its    upper   boundary   decreased    by

fifteen months, from 135 to 120 months.                 And a reduction of one

of the boundaries of the applicable Guidelines range results in

a lower range.      See United States v. Garcia, 606 F.3d 209 (5th

Cir. 2010) (affirming sentence reduction when 2007 amendments

reduced defendant’s Guidelines range from 240 to 262 months to

240 to 240 months”). 5

     We   acknowledge        that   a   downward      departure   from   Gaynor’s

present    Guidelines    range      that      would    be   comparable   to   the

district court’s departures in 2005 and 2009 would be eleven

percent from the bottom of the applicable range — that is, his

current sentence of 106 months.               Gaynor maintains, however, that

he is eligible for — albeit not entitled to — a reduction below



575, 580-81 (5th Cir. 2010) (explaining that when statutory
minimum exceeds both boundaries of Guidelines range, range
becomes statutory minimum “even if it involves a ‘range’ of only
one number” (internal citations omitted)).
     5
        Our recent unpublished decision in United States v.
Gresham vacated a sentencing court’s denial of a sentence
reduction motion for the reasons underlying our ruling today.
See 482 F. App’x 822 (4th Cir. 2012).          In Gresham, the
defendant’s Guidelines range of 120 to 121 months had been
reduced to 120 to 120 months after the issuance of Amendment
750.   The district court denied a sentence reduction, however,
concluding that Amendment 750 did not lower Gresham’s Guidelines
range.    By our decision, we vacated the court’s ruling and
remanded, explaining that Amendment 750 “had the effect of
reducing the high end of Gresham’s Guidelines range by one
month.” Id. at 823. Although Gresham is not binding precedent,
we are persuaded that it was properly decided.



                                         11
106 months, and that the court erred by failing to recognize

that point.          See Br. of Appellant 13 (“Mr. Gaynor is not arguing

that       he   is   entitled          to    a    reduction.           However,      because   his

sentencing range was clearly lowered by the FSA amendments, he

is eligible to be considered for one.”).                                     Indeed, the court

would not be obligated to further reduce Gaynor’s sentence, even

if a comparable reduction would result in a lower sentence.                                    See

USSG       § 1B1.10(b)(2)(B)                (explaining       that      reduction       “may    be

appropriate” (emphasis added)).                          As we have hereto explained,

however, a sentencing court is not bound to use any specific

methodology           in     imposing             sentence,          especially       where    the

prosecution has moved for a downward departure for substantial

assistance.           See United States v. Fennell, 592 F.3d 506, 509

(4th Cir. 2010) (explaining that sentencing court may use any

reasonable           method        of       calculating          downward          departure    at

resentencing          and        “is    not       limited       by     any    specific    method

previously used”).                Thus, the court erred in determining that

Gaynor is ineligible for a further reduction, and in concluding

that       Amendment       750    did       not   have    the    effect       of    lowering   his

Guidelines range. 6              In such circumstances, we are constrained to


       6
        Finally, we reject the government’s contention that
Gaynor’s original 120-month sentence on the conspiracy offense
was based on the statutory minimum, rather than the Guidelines
range.     As the district court explained in denying the
government’s 2009 motion for reconsideration, the court had
(Continued)
                                                    12
vacate and remand so that the court may consider whether to

grant any further reduction for which Gaynor is eligible, with

the caveat that he is not entitled to it.



                                  IV.

     Pursuant   to   the   foregoing,   we   vacate   the   judgment   and

remand for such further proceedings as may be appropriate.



                                                  VACATED AND REMANDED




sentenced Gaynor in 2005 to a term below the statutory minimum
pursuant to § 3553(e).   With that authority, the court granted
Gaynor’s 2009 reduction request and modified his sentence to 106
months.   In so doing, the court necessarily determined that
Gaynor was originally sentenced “based on” his then-applicable
Guidelines range.     The government did not appeal the 2009
sentence reduction ruling, and it is not now before us.



                                  13
