                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 07-4267



UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

   v.


HARVEY DELTON MINTZ, a/k/a Tinker,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at New Bern.   Terrence W. Boyle,
District Judge. (7:05-cr-00130)


Submitted:   February 12, 2008            Decided:   March 6, 2008


Before WILLIAMS, Chief Judge, SHEDD, Circuit Judge, and William L.
OSTEEN, Jr., United States District Judge for the Middle District
of North Carolina, sitting by designation.


Vacated and remanded by unpublished per curiam opinion.


Geoffrey W. Hosford, HOSFORD & HOSFORD, P.C., Wilmington, North
Carolina, for Appellant.    George E. B. Holding, United States
Attorney, Anne M. Hayes, Banumathi Rangarajan, Assistant United
States Attorneys, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh,
North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

     Harvey Delton Mintz pled guilty to conspiring to possess with

intent to distribute and to distribute cocaine and cocaine base,

and he was sentenced to 180 months of imprisonment.                    Mintz now

appeals his sentence.          For the following reason, we vacate the

sentence and remand this case for further proceedings.

     Based on a calculated total offense level of 25 and criminal

history category of III, Mintz’s advisory guideline imprisonment

range    was     70-87    months.        The   district    court    adopted    this

calculation without objection.              From this range, the government

moved for an upward departure pursuant to U.S.S.G. § 4A1.3 and

argued    that    Mintz    should   be    sentenced   as   a   de   facto     career

offender. Mintz opposed this motion. As noted, the district court

ultimately sentenced Mintz to a term of 180 months.                 On appeal the

parties contend that the district court fashioned the 180-month

sentence by (1) granting the government’s motion and departing

upward to a range of 188-235 months and (2) then varying downward

from that range to 180 months.

        Viewing the case in this light, the parties have framed and

argued the primary appellate issue as being the propriety of the

purported upward departure.         However, notwithstanding the parties’

arguments, we believe that the record actually appears to establish

that the district court did not depart upward but, instead, varied




                                           2
upward.1        For example, after hearing from the parties during the

sentencing hearing, the district court stated:

       It’s my conclusion that the Government’s motion for an
       upward departure to a career offender status is – that if
       a departure were going to be the basis of sentencing,
       then the career offender status guideline of 188 to 235
       months would be a valid departure.        But I think a
       variance would be better advised in terms of the overall
       circumstances of this case, and so I am going to sentence
       the defendant to 180 months which is slightly below the
       departure level, but consistent with what I believe to be
       the sentencing purposes and all of the facts in this
       case.

J.A. 59.          From this statement, the district court apparently

rejected the government’s upward departure motion, finding an

upward variance to be more appropriate.             Reading this language in

this manner is consistent with several provisions of the district

court’s “Statement of Reasons” section of the Judgment.                In that

section, the district court listed the advisory guidelines range

(before departure) as 70-87 months and checked the box indicating

that       it   “imposed   a   sentence   outside   the   advisory   sentencing

guideline system.”         J.A. 116-17.       However, the district court did

not check the box that denoted a departure from the advisory range,




       1
      A departure and a variance are different sentencing options,
United States v. Moreland, 437 F.3d 424, 432-33 (4th Cir.), cert.
denied, 126 S. Ct. 2054 (2006) (noting distinction between a
departure and variance), and “[t]he permissible factors justifying
traditional departures differ from – and are more limited than –
the factors a court may look to in order to justify a . . .
variance.” United States v. Hampton, 441 F.3d 284, 288 n.2 (4th
Cir. 2006).

                                          3
and it likewise did not complete the accompanying section that

requires an explanation for a departure.        J.A. 117.

     Unfortunately, at the conclusion of the Statement of Reasons

section, the district court was somewhat contradictory, explaining

“the facts justifying a sentence outside the advisory guideline

system” as follows:

     The Court concluded that the Government’s sealed motion
     for upward departure is valid and the defendant is
     sentenced as a career offender which changed the dft’s
     TOL to 31; CHC of VI and Guideline range of 188 to 235
     mos. However, a variance to a sentence of 180 mos. is an
     (sic) approp. based on the facts of the case.

J.A. 118. This language indicates that the district court may have

granted the government’s motion, departed upward, and then varied

downward.     The parties rely on this language in making their

appellate arguments.

     Based on this record, we believe the best course of action is

to vacate the sentence and remand this case to the district court

in   order   to   allow   it   to   clarify   the   specific   reason   and

justification for the sentence imposed, and to enter a new Judgment

reflecting the clarification.2

                                                     VACATED AND REMANDED




     2
      We note that the Sentencing Commission has recently amended
the sentencing guidelines to modify the penalties for crack cocaine
offenses.   Nothing in this opinion shall preclude the district
court from applying the amendment, if applicable, to Mintz’s
sentence.

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