                               PUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 15-7114


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

           v.

LANCE ANTONIO WILLIAMS,

                Defendant – Appellant.

------------------------

JOHN DONLEY ADAMS,

                Court-Assigned Amicus Counsel.



Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro.   William L. Osteen,
Jr., Chief District Judge. (1:07-cr-00429-JAB-6)


Argued:   October 7, 2015                  Decided:     December 14, 2015


Before TRAXLER,   Chief     Judge,   and   KING   and    THACKER,   Circuit
Judges.


Vacated and remanded by published opinion. Judge King wrote the
majority opinion, in which Judge Thacker joined.    Chief Judge
Traxler wrote a dissenting opinion.


ARGUED: Eric David Placke, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Greensboro, North Carolina, for Appellant. Robert
Michael Hamilton, OFFICE OF THE UNITED STATES ATTORNEY,
Greensboro, North Carolina, for Appellee.    John Donley Adams,
MCGUIREWOODS LLP, Richmond, Virginia, as Court-Assigned Amicus
Counsel.   ON BRIEF: Louis C. Allen, Federal Public Defender,
OFFICE OF THE FEDERAL PUBLIC DEFENDER, Greensboro, North
Carolina, for Appellant.   Ripley Rand, United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Greensboro, North
Carolina, for Appellee. Brian D. Schmalzbach, MCGUIREWOODS LLP,
Richmond, Virginia, for Amicus Curiae.




                               2
KING, Circuit Judge:

      Lance Antonio Williams appeals from the district court’s

denial of his motion for a reduced sentence under 18 U.S.C.

§ 3582(c)(2).      Williams seeks the benefit of recent amendments

to the Sentencing Guidelines and contends that the court in the

Middle      District   of    North   Carolina    erred    when   it     ruled   him

ineligible for a sentence reduction.                According to Williams,

Guidelines     Amendment      780,   which    revised    the   policy    statement

governing § 3582(c)(2) sentence reductions, renders him eligible

for   relief.      The      United   States   Attorney    supports      Williams’s

position in this appeal.              As explained below, we vacate and

remand. 1



                                        I.

      On March 3, 2008, Williams pleaded guilty to distributing

cocaine base, in contravention of 21 U.S.C. § 841(a)(1).                    Prior

to his guilty plea, the United States Attorney filed a notice,

pursuant to 21 U.S.C. § 851, advising Williams and the district




      1Because the United States Attorney sides with Williams in
this appeal, we appointed attorney John Donley Adams of
Richmond, Virginia, as amicus counsel to support the district
court’s ruling. We appreciate his valuable service to our Court
in this matter.



                                         3
court that Williams’s prior North Carolina drug conviction would

be utilized to seek an enhanced penalty under § 841(b)(1)(A). 2

      The   Probation    Officer    prepared     Williams’s       presentence

report (the “PSR”) and recommended that he be sentenced to 240

months in prison. 3     The PSR made that recommendation by starting

at a base offense level of 30, predicated on a drug weight of

fifty-six grams.      The offense level was then lowered to reflect

Williams’s acceptance of responsibility, resulting in a final

offense level of 27.      With Williams’s criminal history category

of VI, the Guidelines advised a sentencing range of 130 to 162

months.     The    prosecutor’s    § 851     notice,   however,       triggered

§ 841(b)(1)(A)’s      mandatory    minimum    sentence   of     240    months.

Because Williams’s entire advisory Guidelines range fell below

the   statutory    mandatory      minimum    sentence,    his     Guidelines

sentence was the statutory minimum of 240 months.                     See USSG

§ 5G1.1(b) (“Where a statutorily required minimum sentence is

greater than the maximum of the applicable guideline range, the



      2Section 841(b)(1)(A) of Title 21 mandates that, if a
person commits a violation specified in that provision “after a
prior conviction for a felony drug offense has become final,
such person shall be sentenced to a term of imprisonment which
may not be less than 20 years.”
      3The PSR relied on the 2007 edition of the Sentencing
Guidelines.    Unless otherwise specified, we refer to the 2014
edition,   the   Guidelines  edition  applicable  to  Williams’s
§ 3582(c)(2) motion. See USSG § 1B1.10(b)(1).



                                     4
statutorily      required      minimum    sentence     shall   be    the   guideline

sentence.”).

      Prior    to     the    December    9,    2008    sentencing     hearing,   the

prosecutors filed a motion for a downward departure, pursuant to

18    U.S.C.        § 3553(e),        recognizing      Williams’s      substantial

assistance       to     the     authorities. 4          On     the    prosecutors’

recommendation,        the    court    imposed   a    sentence   of    180   months,

reflecting a twenty-five percent reduction from the 240-month

Guidelines sentence.

      On May 9, 2012, more than three years after his conviction

and sentencing, Williams filed a pro se motion for a sentence

reduction under 18 U.S.C. § 3582(c)(2).                  The district court did

not   act   on      that     motion   until    after    the    Probation     Officer

submitted a memorandum to the court on May 18, 2015, advising

that Williams was eligible for a sentence reduction.                         On June

18, 2015, the court appointed a lawyer to represent Williams and

ordered briefing on the sentence-reduction motion.                    Williams and

      4Pursuant to 18 U.S.C. § 3553(e), a prosecutor’s downward-
departure motion confers upon a sentencing court “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 a sentence must be imposed
“in accordance with the guidelines and policy statements issued
by the Sentencing Commission.”   Id.; see USSG 5K1.1 (requiring
sentencing court to consider quality, credibility, extent,
riskiness, and timeliness of assistance to determine extent of
departure under § 3553(e)).



                                           5
the United States Attorney agreed that Williams was eligible for

a sentence reduction under Guidelines Amendments 750 and 782 —

both   of   which    reduced     the    offense        level     applicable     to   his

conviction     —    due   to     the    procedural        changes      introduced     by

Guidelines Amendment 780.              See USSG app. C, amend. 780 (Supp.

2014) (revising Guidelines to clarify § 3582(c)(2) eligibility

for    defendant      sentenced        below        statutory     minimum      due    to

substantial-assistance departure).

       By memorandum opinion of July 10, 2015, the district court

denied Williams’s § 3582(c)(2) motion.                        See United States v.

Williams, No. 1:07-cr-00429 (M.D.N.C. July 10, 2015), ECF No.

372 (the “Opinion”).           The Opinion acknowledged that, based on

Amendments 750 and 782, Williams’s final offense level would be

21 instead of 27, resulting in a Guidelines range of 77 to 96

months.      Nonetheless,       the    court     ruled    that    Williams     had    not

satisfied the eligibility requirements of § 3582(c)(2) because

his    180-month     sentence     was       based    on   a    statutory      mandatory

minimum and a statutorily authorized departure for substantial

assistance,    rather     than    on    a    Guidelines       range    that   had    been

subsequently       lowered.      The    court       reached     that   conclusion     in

reliance on our 2009 decision in United States v. Hood, 556 F.3d

226 (4th Cir. 2009).




                                             6
      Williams filed a timely notice of appeal, and we possess

jurisdiction     pursuant       to    28     U.S.C.       § 1291    and     18   U.S.C.

§ 3742(a).



                                           II.

      We review de novo a district court’s ruling on the scope of

its legal authority under 18 U.S.C. § 3582(c)(2).                          See United

States v. Mann, 709 F.3d 301, 304 (4th Cir. 2013).



                                       III.

      On appeal, Williams maintains that he is eligible for a

sentence reduction under 18 U.S.C. § 3582(c)(2).                          The district

court,    in   its    Opinion    denying         Williams’s     sentence-reduction

motion,    disagreed    with    that       contention.        The   amicus       counsel

defends the position of the district court in this proceeding.

Williams and the United States Attorney counter that the court

misunderstood    the    scope    of    its       authority    under   § 3582(c)(2),

because, inter alia, Amendment 780, promulgated in 2014, revised

the      Sentencing     Commission’s             policy      statement       governing

eligibility for a sentence reduction.                 As a result, they contend

that the court’s denial of Williams’s § 3582(c)(2) motion should

be vacated.




                                            7
                                                 A.

     In order to properly assess Williams’s eligibility for a

sentence    reduction         under       § 3582(c)(2),          we       first     identify        the

relevant principles governing such reductions.                                   That discussion

implicates       the       Supreme   Court’s          mandate        that    a     federal       court

determine     a        prisoner’s         eligibility            under       § 3582(c)(2)           by

adhering     to     the       Commission’s            policy      statements,             and     also

involves     the       Commission’s            authority        to        dictate     the        proper

application of the Guidelines.

                                                 1.

     Congress          created       the       Commission            in     1984     to      provide

guidance, clarity, and fairness in sentencing.                                    See 28 U.S.C.

§ 991(b).        The Guidelines reflect the Commission’s efforts to

that end and assist the federal courts in imposing appropriate

sentences     on       a     case-by-case            basis.          To     ensure        that     the

Guidelines       reflect       current          views      on    criminal           behavior        and

account    for     revisions         to    statutory          provisions,           Congress       has

empowered    the       Commission         to     amend     the       Guidelines.            See    id.

§ 994(o), (p).          Those amendments are effective unless “otherwise

modified    or     disapproved        by       Act    of   Congress.”              Id.    § 994(p).

When an amendment lowers the Guidelines range for a particular

offense,     the       Commission         must       indicate        whether        and     in    what

circumstances such amendment will have retroactive effect — that

is, by “specify[ing] in what circumstances and by what amount

                                                 8
the sentences of prisoners serving terms of imprisonment for the

offense may be reduced.”          Id. § 994(u).

       Congress      has   authorized        the        federal     courts      to    grant

sentence      reductions       based    on       the     Commission’s          retroactive

amendments through a narrow exception to the general rule that a

court may not modify a defendant’s sentence “once it has been

imposed.”     See 18 U.S.C. § 3582(c).              Pursuant thereto,

       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 pursuant to 28 U.S.C. 994(o), upon motion
       of the defendant . . . , the court may reduce the term
       of imprisonment, 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. § 3582(c)(2).

       As   the    Supreme     Court    recognized          in    2010,     the      “policy

statement governing § 3582(c)(2) proceedings” is set forth in

Guidelines section 1B1.10.              See Dillon v. United States, 560

U.S.   817,    819    (2010).      Section         1B1.10    lists       the   Guidelines

amendments        designated     by     the        Commission       for        retroactive

application in a § 3582(c)(2) proceeding.                    See USSG § 1B1.10(d).

Pertinent here, a sentence reduction is not authorized unless

one    of   those     amendments       has       “the    effect     of     lowering      the

defendant’s          applicable          guideline               range.”                USSG

§ 1B1.10(a)(2)(B).         To determine whether a particular amendment


                                             9
has that effect, the sentencing court must “substitute only the

amendments” rendered retroactive by the Commission and “leave

all    other    guideline     application            decisions         unaffected.”           Id.

§ 1B1.10(b)(1).         When assessing a § 3582(c)(2) motion, the court

must   “use     the    version      of   [the]       policy     statement       that     is    in

effect on the date on which the court reduces the defendant’s

term of imprisonment.”           See id. § 1B1.10 cmt. n.8.

       In    Dillon,    the    Supreme         Court       reinforced      § 3582(c)(2)’s

emphasis on the Commission’s policy statements, and it spelled

out    a    two-step    inquiry      for      the    review      of    sentence-reduction

motions.        See    560    U.S.       at   827.         At    the    first     step,       the

sentencing court must review “the Commission’s instructions in

§ 1B1.10 to determine the prisoner’s eligibility for a sentence

modification and the extent of the reduction authorized.”                                     Id.

(emphasis added).         If the court determines that the prisoner is

eligible for a sentence reduction, the court moves to the second

step and determines the extent of the reduction.                          Id.

                                              2.

       The     Commission     possesses         the    authority         to     dictate       the

proper application of the Guidelines through the promulgation of

Guidelines amendments.               As the Supreme Court has recognized,

“Congress      necessarily       contemplated          that      the    Commission        would

periodically      review      the    work      of    the     courts,      and    would     make

whatever       clarifying     revisions         to     the      Guidelines       conflicting

                                              10
judicial decisions might suggest.”                             Braxton v. United States,

500 U.S. 344, 348 (1991).                     The Court applied that principle in

its Braxton opinion by declining to resolve the circuit split on

which    it     had    granted      certiorari,            because       the      Commission         was

poised to “eliminate [the] circuit conflict.”                                  See id. at 348-

49.     By deferring to the Commission’s anticipated resolution of

a circuit split regarding an interpretation of the Guidelines,

the     Court     implicitly         recognized           the        Commission’s      power          to

abrogate precedent in the courts of appeals.

       We     have    similarly         recognized            the    Commission’s      power          to

override      our     precedent         through         amendments       to    the   Guidelines.

See, e.g., United States v. Capers, 61 F.3d 1100, 1112-13 (4th

Cir. 1995) (recognizing that amendment to Guidelines commentary

required       “us     to    scrap       our       earlier          interpretation        of        that

guideline”); United States v. Turner, 59 F.3d 481, 488 (4th Cir.

1995)    (explaining         that       the       “Commission         has   the     authority         to

review      the   work      of    the    courts         and    revise       the    Guidelines         by

adopting an interpretation of a particular guideline in conflict

with prior judicial constructions of that guideline”).                                     We are

not    alone      among     the     courts         of    appeals       in     yielding     to        the

Commission’s          authority          to        promulgate          amendments         to         the

Guidelines        that      effectively           vacate       circuit      precedent.              See,

e.g., United States v. Vasquez-Cruz, 692 F.3d 1001, 1006 (9th

Cir.     2012)       (“Of    course,          a    change       in    the      language        of     an

                                                   11
applicable           Guidelines       provision,           including         a      change      in

application          notes     or    commentary,          supersedes        prior    decisions

applying earlier versions of that provision, just as we would be

bound    to     apply        the    updated       version      of    an     agency    rule      or

regulation.”); United States v. Marmolejos, 140 F.3d 488, 493

n.7 (3d Cir. 1998) (“[B]ecause of the Sentencing Commission’s

broad power to interpret the Guidelines, clarifying amendments

should     be     considered         by     the        sentencing     court       despite      any

conflict        with    established          precedent,          unless     ex     post     facto

concerns are present.”); United States v. Prezioso, 989 F.2d 52,

54 & n.1 (1st Cir. 1993) (recognizing applicability of amendment

to commentary despite contrary circuit precedent).

     Writing for this Court in United States v. Goines, our then

Chief Judge recognized in 2004 the Commission’s power to impact

precedent       in     the    various      circuits,       explaining        that     “Congress

anticipated that the Commission would use the amendment process

to resolve disagreements among courts of appeals.”                                See 357 F.3d

469, 474 (4th Cir. 2004).                   When the circuits have split on the

application of a Guidelines provision, the Commission typically

resolves      such      a     disagreement         by     promulgating        a     “clarifying

amendment,”          which    does    not     alter       “the      legal    effect       of   the

guidelines, but merely clarifies what the Commission deems the

guidelines to have already meant.”                       Id.     As Goines explained, if

a   clarifying         amendment          “conflicts       with      our    precedent,”         we

                                                  12
recognize that it has “the effect of changing the law in this

circuit.”    Id.

      Consistent      with     the   foregoing,     our     precedent    in   the

sentence-reduction context must give way if it conflicts with

the Commission’s amendments.           As the Goines decision emphasized,

      Congress has granted the Commission the unusual
      explicit power to decide whether and to what extent
      its amendments reducing sentences will be given
      retroactive effect.   The amendment and retroactivity
      powers operate in tandem:  The Commission decides how
      to modify the guidelines and also decides how such
      modifications  should   be  implemented.     This  is
      appropriate, as the Commission has both the authority
      and the obligation to enact policies designed to
      achieve the underlying purposes of the Sentencing
      Reform Act.

357 F.3d at 476 (internal quotation marks omitted).                  Chief Judge

Wilkins   also     explained    that    the    Commission    can    utilize   that

“unusual explicit power” to abrogate decisions concerning the

Guidelines     that   risk     producing      “wildly   disparate    sentences.”

Id.

                                        B.

      Having     identified      the     legal     framework       for   sentence

reductions under § 3582(c)(2) and the Commission’s authority to

dictate the availability of such relief, we now turn to our

decision in United States v. Hood, on which the district court

relied.     See 556 F.3d 226 (4th Cir. 2009).             We then discuss the

Commission’s promulgation of Amendment 780, which, according to




                                        13
the United States Attorney and Williams, undermines the court’s

reliance on Hood.

                                               1.

      Decided    in    2009,       Hood   involved       the    issue     of   whether    a

defendant who received a substantial-assistance departure from

an   above-Guidelines-range               mandatory          minimum      sentence       was

eligible for a sentence reduction under § 3582(c)(2).                            See 556

F.3d at 228.        Consistent with the Guidelines then in effect, we

ruled that Hood was ineligible for such relief.                        See id. at 233.

      In 2001, Hood pleaded guilty to conspiracy to possess with

intent to distribute cocaine and cocaine base, in contravention

of   21    U.S.C.    § 846.         See       Hood,    556   F.3d    at   228.        After

calculating Hood’s Guidelines range as 188 to 235 months, the

district     court     acknowledged           that     Hood’s     prior      felony    drug

conviction     triggered       a    240-month         mandatory     minimum     sentence.

See id. at 228-29.           Accordingly, by applying Guidelines section

5G1.1(b), the court identified 240 months as Hood’s Guidelines

sentence.       On the basis of a § 3553(e) motion, however, the

court departed downward and imposed a sentence of 100 months.

See id. at 229.

      In    2008,     Hood    filed       a     § 3582(c)(2)        motion     seeking    a

sentence reduction pursuant to Guidelines Amendment 706, which

had lowered the offense level applicable to his underlying drug

offense.      See Hood, 556 F.3d at 230.                        The sentencing court

                                               14
denied    Hood’s          motion,    and    we    affirmed.               Id.     In     our    Hood

decision, we explained that, because Amendment 706 had no impact

on either the statutory mandatory minimum or the substantial-

assistance departure, it did “not have the effect of lowering

the    defendant’s          applicable       guidelines          range.”           Id.    at     232

(quoting USSG § 1B1.10(a)(2)(B)).                       Instead, Hood’s sentence was

“based   on     a     statutory      minimum      and        USSG       § 5G1.1(b),”      both    of

which    remained         in    place     after       Amendment          706.     Id.     at    233.

Moreover,       the       sentence      resulted        from        a    § 3553(e)       departure

predicated on Hood’s substantial assistance to the authorities

and guided by the factors outlined in Guidelines section 5K1.1.

Id. at 233-34.              Because Amendment 706 did not impact any of

those provisions, it could not provide relief for Hood under

§ 3582(c)(2).         Id. at 234.

       Several       of    the    other     courts       of    appeals          adhered    to    the

approach enunciated in Hood and denied sentence reductions to

prisoners       who       had    been     sentenced          below       statutory       mandatory

minimums as a result of substantial-assistance motions.                                         See,

e.g., United States v. Moore, 734 F.3d 836 (8th Cir. 2013);

United States v. Joiner, 727 F.3d 601 (6th Cir. 2013); United

States v. Glover, 686 F.3d 1203 (11th Cir. 2012); United States

v.    Carter,       595    F.3d     575    (5th       Cir.    2010);       United      States     v.

Williams, 551 F.3d 182 (2d Cir. 2009).                                   The Third and D.C.

Circuits,       in     contrast,        ruled     that        such       prisoners       could    be

                                                 15
eligible for relief under § 3582(c)(2).                See In re Sealed Case,

722 F.3d 361 (D.C. Cir. 2013); United States v. Savani, 733 F.3d

56 (3d Cir. 2013).

                                         2.

     In   recognition       of     the    foregoing      circuit     split,       the

Commission      promulgated      Guidelines      Amendment   780     in   2014     to

clarify “when, if at all, § 1B1.10 provides that a statutory

minimum continues to limit the amount by which a defendant’s

sentence may be reduced under 18 U.S.C. § 3582(c)(2) when the

defendant’s original sentence was below the statutory minimum.”

USSG app. C, amend. 780 (Supp. 2014).                  The Commission embraced

the apparent minority view, explaining that its Amendment 780

“generally adopts the approach of the Third Circuit in Savani

and the District of Columbia Circuit in In re Sealed Case.”                      Id.

     To   that    end,    Amendment      780   revised     Guidelines      section

1B1.10,   the    policy     statement     that    dictates       eligibility      for

§ 3582(c)(2)      relief.         Amendment      780     moved     the    list     of

retroactive amendments from subsection (c) to subsection (d) and

inserted the following in subsection (c):

     If the case involves a statutorily required minimum
     sentence and the court had the authority to impose a
     sentence  below   the  statutorily   required  minimum
     sentence pursuant to a government motion to reflect
     the defendant’s substantial assistance to authorities,
     then for purposes of this policy statement the amended
     guideline range shall be determined without regard to
     the operation of § 5G1.1 (Sentencing on a Single Count


                                         16
       of Conviction) and § 5G1.2             (Sentencing        on    Multiple
       Counts of Conviction).

USSG    § 1B1.10(c).   In    justifying        the       foregoing     mandate,      the

Commission    recognized     the    value     to    our   system      of   justice   of

those cooperating defendants who provide substantial assistance

to     the   authorities.          According        to    the   Commission,       such

cooperating defendants should be rewarded because they

       are differently situated than other defendants and
       should be considered for a sentence below a guideline
       or statutory minimum even when defendants who are
       otherwise similar (but did not provide substantial
       assistance) are subject to a guideline or statutory
       minimum.   Applying this principle when the guideline
       range has been reduced and made available for
       retroactive   application   under section  3582(c)(2)
       appropriately maintains this distinction and furthers
       the purposes of sentencing.

USSG app. C, amend. 780 (Supp. 2014).

                                        C.

       This appeal requires us to assess the impact of Amendment

780 on our decision in Hood.            The amicus counsel contends that

the district court correctly recognized the viability of Hood as

our    circuit   precedent     and     thus        properly     denied     Williams’s

§ 3582(c)(2) motion.        The United States Attorney, on the other

hand, agrees with Williams and maintains that the court erred by

failing to recognize that Amendment 780 altered the course we

followed in Hood.      As explained below, we agree with the United

States Attorney and Williams.




                                        17
                                             1.

     In this circuit, we are bound by “the basic principle that

one panel cannot overrule a decision issued by another panel.”

McMellon v. United States, 387 F.3d 329, 332 (4th Cir. 2004) (en

banc).     When panel opinions conflict, we are obliged to apply

the “earliest-case-governs” rule and adhere to “the earlier of

the conflicting opinions.”              Id. at 333.            At the same time, “[a]

decision by a panel of this court, or by the court sitting en

banc, does not bind subsequent panels if the decision rests on

authority that subsequently proves untenable.”                           U.S. Dep’t of

Health & Human Servs. v. Fed. Labor Relations Auth., 983 F.2d

578, 581-82 (4th Cir. 1992).                 Moreover, the Commission has the

authority       to   “chang[e]       the     law   in    this       circuit”    regarding

§ 3582(c)(2) eligibility.            See Goines, 357 F.3d at 474.

     The    district        court,     in    deeming      Williams       ineligible    for

relief,    applied      our   Hood     decision.         It     failed    to   recognize,

however,    that      Amendment      780’s    revision         to   Guidelines    section

1B1.10    had    modified     the    process       for    determining        § 3582(c)(2)

eligibility.         Although the Commission did not mention Hood in

its “Reason for Amendment” accompanying Amendment 780, the Hood

decision was consistent with the rulings made in two of the

three     appellate        decisions       that    the    Commission         specifically

disapproved.         See USSG app. C, amend. 780 (Supp. 2014); see also

United    States      v.   Joiner,     727    F.3d      601,    609   (6th     Cir.   2013)

                                             18
(affirming    denial     of        § 3582(c)(2)   motion      where    defendant’s

sentence was based on statutory mandatory minimum sentence not

lowered by subsequent Guidelines amendment); United States v.

Glover, 686 F.3d 1203, 1207 (11th Cir. 2012) (same).                      Moreover,

the Commission explained that Amendment 780 “generally adopts”

the D.C. Circuit’s approach in 2013 in In re Sealed Case, which

had expressly rejected Hood.            See USSG app. C, amend. 780 (Supp.

2014); see also In re Sealed Case, 722 F.3d at 368-69.

       Amendment   780   explicitly        provides       that   a    defendant    in

Williams’s   situation        is    eligible   for    a    § 3582(c)(2)    sentence

reduction.     The     applicable       policy    statement      now    requires   a

sentencing court to remove Guidelines section 5G1.1 from the

§ 3582(c)(2) eligibility determination.                   Compare Hood, 556 F.3d

at 234-35 (denying § 3582(c)(2) relief because the impact of

“§ 5G1.1(b) . . . was never removed from operation”), with USSG

app. C, amend. 780 (Supp. 2014) (requiring sentencing court to

determine    § 3582(c)(2)           eligibility      “without    regard    to     the

operation of § 5G1.1”).              Because Amendment 780 clarifies the

applicability of § 3582(c)(2) relief in this case and “conflicts

with our precedent,” we must recognize, pursuant to Goines, its

“effect of changing the law in this circuit.”                    See 357 F.3d at

474.

       Hood’s logic, which was predicated on the pre-Amendment 780

Guidelines, is simply inapplicable here.                    Consistent with the

                                          19
Commission’s power to determine “how to modify the guidelines”

and “how such modifications should be implemented,” Goines, 357

F.3d at 476, the revised Guidelines section 1B1.10(c) mandates a

different    result.      And,   in   any   event,     we    are    bound    by    the

“earliest-case-governs” rule.          Pursuant thereto, we must adhere

to our pre-Hood decisions — for example, Turner, Capers, and

Goines — and recognize the Commission’s authority to dictate the

proper application of the Guidelines.            See McMellon, 387 F.3d at

333.

                                      2.

       Our approval of the position espoused by the United States

Attorney and Williams is also consistent with the Sentencing

Reform Act’s focus on “the elimination of unwarranted sentencing

disparity.”     See Goines, 357 F.3d at 475-76.               A contrary ruling

would permit cooperating defendants with Guidelines ranges above

their statutory minimums — perhaps due to extensive criminal

histories or severe offense conduct — to nevertheless secure

sentencing    relief   under     § 3582(c)(2).         On     the    other       hand,

cooperating defendants such as Williams, whose Guidelines ranges

are entirely below their statutory minimums, would be denied

relief.     Such a disparity should not occur within the category

of defendants who should benefit from Amendment 780:                   those “who

provide     substantial    assistance       to   the        government      in     the

investigation    and   prosecution     of   others.”         See    USSG    app.    C,

                                      20
amend.      780    (Supp.       2014).        Moreover,    Amendment      780   makes    no

distinction among such defendants, and we lack the authority to

create one.            See United States v. Maroquin-Bran, 587 F.3d 214,

217       (4th     Cir.       2009)        (recognizing        that    “rewriting      [the

Guidelines] is beyond our purview as a court and remains the

domain of either the Sentencing Commission or the Congress”).

          Finally,      our      ruling       today      furthers       “the    expressed

Congressional           policy        of     rewarding     cooperation”         with    the

authorities.           See United States v. Wade, 936 F.2d 169, 171 (4th

Cir. 1991).            Our criminal justice system advances that policy

by,       inter    alia,       affording          prosecutors    the     discretion     and

authority         to    file     § 3553(e)          motions,    which     moderate     “the

rigorous inflexibility of mandatory sentences where the offender

has rendered substantial assistance to the Government.”                              United

States v. Daiagi, 892 F.2d 31, 32 (4th Cir. 1989).                          The prospect

of securing substantial-assistance motions from the prosecutors

encourages defendants to aid in investigations and prosecutions

of their coconspirators and criminal cohorts.                            That inducement

is    a    powerful      tool    for       more    effective    law    enforcement,     and

placing       restrictions         on       sentence-reduction          eligibility     for

cooperating defendants such as Williams would weaken that tool.

                                                  D.

          In these circumstances, we reject the contention of the

amicus      counsel       that    the      Hood     decision    is    controlling.       We

                                                  21
therefore    turn    to     the    issue    of    Williams’s    eligibility        for   a

sentence     reduction      under     the    policy      statement   in     Guidelines

section 1B1.10.           As explained below, Williams is eligible for

such a reduction.

      Section 3582(c)(2) requires a sentencing court to adhere to

the Commission’s policy statement in Guidelines section 1B1.10

when assessing a motion for a sentence reduction.                          See Dillon,

560   U.S.   at    827     (requiring       the    sentencing    court      to   assess

Guidelines        section     1B1.10        “to     determine     the       prisoner’s

eligibility for a sentence reduction”); United States v. Dunphy,

551   F.3d    247,    250     (4th    Cir.       2009)   (recognizing       that    “the

Commission’s       policy         statements      implementing       the     statute’s

authorization of retroactive sentence reductions are binding”).

Because Amendment 780 went into effect prior to the district

court’s resolution of Williams’s § 3582(c)(2) motion, the court

was required to assess the motion in light of the now applicable

policy statement in Guidelines section 1B1.10(c).                          See USSG §

1B1.10 cmt. n.8 (requiring court to “use the version of this

policy statement that is in effect on the date on which the

court reduces the defendant’s term of imprisonment as provided

by 18 U.S.C. § 3582(c)(2)”).

      In determining whether a retroactive Guidelines amendment

has the effect of lowering a defendant’s advisory Guidelines

range, the court must import the amendment as it appears in the

                                            22
most    recent     edition    of     the    Guidelines          into      the    original

sentencing       calculations,       substituting            only   the      retroactive

provisions       and    leaving      “all        other       guideline       application

decisions     unaffected.”          USSG        § 1B1.10(b)(1).            If    the     new

Guidelines calculation results in a lower advisory range, the

prisoner is eligible for a sentence reduction.

       The   proper      application        of        the    policy      statement        in

Guidelines section 1B1.10 shows that Williams is eligible for

relief.      Since      Williams’s    original          sentencing     in       2008,   the

Commission        has    promulgated            two      retroactively          effective

Guidelines amendments that lowered the base offense levels for

cocaine base offenses:            Amendments 750 and 782.                See USSG app.

C, amend. 782 (Supp. 2014); id. app. C, amend. 750 (2011).                               As

the    district    court   recognized,          Amendments      750    and      782    would

reduce Williams’s original total offense level from 27 to 21,

and his advisory Guidelines range would now be 77 to 96 months.

See Opinion 4-5.           Although Guidelines section 5G1.1(b) would

otherwise turn the 240-month mandatory minimum into Williams’s

revised “guideline sentence,” the revisions made to Guidelines

section 1B1.10 by Amendment 780 bar the sentencing court from

calculating      his    amended    range    in        that   manner.       Accordingly,

because Williams’s revised Guidelines range is lower than his

original range, he is eligible for a sentence reduction under

§ 3582(c)(2).

                                           23
      The fact that Williams is eligible for a sentence reduction

under § 3582(c)(2) does not dictate the propriety or amount of

any such reduction.      See United States v. Stewart, 595 F.3d 197,

200 (4th Cir. 2010).         That decision is for the sentencing court,

after “consider[ing] the factors set forth in section 3553(a) to

the extent that they are applicable.”             18 U.S.C. § 3582(c)(2);

see   Dillon,   560   U.S.    at   827    (recognizing    sentencing   court’s

discretion to decide whether sentence reduction is warranted).



                                         IV.

      Pursuant to the foregoing, we vacate the judgment of the

district court and remand for such other and further proceedings

as may be appropriate.

                                                         VACATED AND REMANDED




                                         24
TRAXLER, Chief Judge, dissenting:

      Williams’s     sentence     was    based    on    a     statutory       mandatory

minimum.      Congress     has    not    lowered       it,    and    the    Sentencing

Commission    has    no   power   to    lower    it.         Accordingly,      I   would

affirm.

                                         I.

      District courts “are forbidden, as a general matter, to

modify    a   term   of    imprisonment        once    it     has    been     imposed.”

Freeman v. United States, 131 S. Ct. 2685, 2690 (2011) (internal

quotation marks omitted).             This “rule of finality is subject to

a few narrow exceptions” prescribed by Congress in 18 U.S.C. §

3582(c).       Id.        One    of    these    exceptions          applies    when    a

defendant’s    applicable       sentencing      range    is    lowered      after     the

sentencing court has already imposed a prison term:

           [I]n 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 . . . , the court may reduce
      the term of imprisonment, 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.

18 U.S.C. § 3582(c)(2) (emphasis added).

      Based on his criminal history and the characteristics of

his   crack-distribution         offense,      Williams’s       original      advisory

sentencing range was 130-162 months.                   But, because of a prior

felony drug offense, Williams was subject to a mandatory minimum

                                         25
sentence fixed by Congress of 240 months.                               See 21 U.S.C. §

841(b)(1)(A).             When    a    crime       carries     a    mandatory     minimum

sentence, a district court must impose at least the mandatory

minimum      unless       a    statutory       exception—such           as    a   downward

departure     for    substantial         assistance     under       §   3553(e)—applies.

See United States v. Campbell, 995 F.2d 173, 175 (10th Cir.

1993) (“When a sentence is fixed by statute, any exception to

the statutory directive must also be given by statute.”).                              “Only

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 prosecution of

another person who has committed an offense.’”                          United States v.

Hood, 556 F.3d 226, 233 (4th Cir. 2009) (quoting 18 U.S.C. §

3553(e)).           The       district       court    when     sentencing         Williams

determined that a statutory minimum term of 240 months applied

but then departed downward to 180 months under § 3553(e) to

reflect    Williams’s         substantial         assistance       to   the   government.

Since the applicable mandatory minimum sentence was greater than

the   high    end     of      Williams’s       advisory      sentencing       range,    the

district     court    was      required      to    impose    the    mandatory     minimum

sentence without regard to the advisory sentencing range.                                 In

essence, the advisory sentencing range “became irrelevant.”                             Id.

Accordingly, Williams’s 180-month term of imprisonment could not

                                              26
have been “based on a sentencing range that [was] subsequently .

.   .    lowered       by     the     Sentencing        Commission,”       18     U.S.C.      §

3582(c)(2)      (emphasis          added),    because         it   was   not   based    on     a

sentencing range in the first instance.

        Likewise,      Williams’s         advisory      sentencing       range    played     no

part     in     the     calculation          of    the        downward    departure          for

substantial          assistance.           First,       “§     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).             Thus, the baseline for that departure is the

statutory minimum—not the otherwise applicable sentencing range.

See id. (concluding a downward departure motion under § 3553(e)

does    not    “restore[]          the   otherwise       applicable      guideline      range

that would have applied absent the mandatory minimum sentence”).

The fact that the Commission lowered the advisory sentencing

range has no bearing on the factors relevant to the substantial

assistance given by Williams.                 See United States v. Spinks, 770

F.3d 285, 287 (4th Cir. 2014) (“[O]ur precedent on this point is

clear:        the extent of a § 3553(e) departure below a mandatory

minimum       must    be     based       solely    on    a    defendant’s        substantial

assistance and factors related to that assistance.”).

        In sum, Williams’s sentence was based on the applicable

mandatory minimum fixed by 21 U.S.C. § 841(b)(1)(A), and the

downward departure he received under 18 U.S.C. § 3553(e) was

                                              27
based    on      the    substantial          assistance              he    gave   the     government.

Since only Congress, not the Sentencing Commission, can change

either      of     these       factors,          I       must    conclude         that    Williams’s

sentence         was     not     “based      on          a     sentencing         range    that   has

subsequently           been     lowered          by      the     Sentencing        Commission,”     §

3582(c)(2), and that he is therefore not eligible for a sentence

reduction under that section.

                                                      II.

     This court’s decision in United States v. Hood is on all

fours with this case and, in my view, is still good law.                                           In

Hood, the defendant pled guilty to a crack drug offense that

yielded a sentencing range of 188 to 235 months, but he was

subject to a 240-month mandatory minimum as a result of a prior

felony drug conviction.                     The district court imposed the 240-

month sentence but departed downward to 100 months pursuant to §

3553(e)     for        Hood’s    substantial               assistance        to   the     government.

The Sentencing Commission subsequently reduced the base offense

level applicable to crack offenses, and Hood sought a reduction

on   that      basis      pursuant          to       §     3582(c).          We    held    that   the

defendant’s sentence “was not ‘based on’ the sentencing range

for crack cocaine offenses that was lowered by Amendment 706.”

Hood,    556      F.3d     at        236.        Rather,         we       concluded      that   Hood’s

sentence “was based on a statutory minimum fixed by 21 U.S.C. §

841(b)(1)(A),           and     it    was    reduced            to    an    appropriate     sentence

                                                      28
authorized under § 3553(e) for his substantial assistance.”                                    Id.

at    236-37.             Hood    explained           that    because       “the     Sentencing

Commission          has    no    authority       to     lower       a   statutory        mandatory

minimum,” Amendment 706 “did not have the effect of lowering

Hood’s Guidelines Range.”              Id. at 233.              Nor, the court reasoned,

did   Hood’s         sentencing      range       play        any    role    in     the    court’s

substantial          assistance      downward          departure.           See     id.     (“Only

Congress        could      authorize        a    departure          from    the     statutorily

mandated minimum sentence . . . .”).

      Hood, in my view, remains good law despite the apparent

conflict    with          Sentencing   Guidelines             Amendment      780,    which     the

Sentencing          Commission       added        to         address       “Cases        Involving

Mandatory       Minimum         Sentences       and    Substantial         Assistance.”         It

states:

      If the case involves a statutorily required minimum
      sentence and the court had the authority to impose a
      sentence   below  the   statutorily  required  minimum
      sentence pursuant to a government motion to reflect
      the defendant’s substantial assistance to authorities,
      then for purposes of this policy statement the amended
      guideline range shall be determined without regard to
      the operation of § 5G1.1 . . . .

U.S.S.G.        §    1B1.10(c)       (emphasis          added).            Section       5G1.1(b)

recognizes that a mandatory minimum sentence fixed by Congress

trumps     an       advisory      sentencing          range        determined      pursuant    to

application of the Sentencing Guidelines:                               “Where a statutorily

required minimum sentence is greater than the maximum of the


                                                 29
applicable      guideline        range,       the    statutorily          required       minimum

sentence shall be the guideline sentence.”

      The parties contend that Amendment 780 eviscerated Hood’s

prohibition against a sentence reduction under § 3582(c) where

the   original     sentence       was       “based       on   a   statutory         minimum    and

U.S.S.G.    §     5G1.1(b).”            556       F.3d    at      233    (emphasis       added).

Amendment    780       directs    the       sentencing         court     to     determine      the

amended sentencing range in these circumstances “without regard

to the operation of § 5G1.1.”                  U.S.S.G. § 1B1.10(c).                  Since Hood

referred    to     §    5G1.1(b)       in     explaining          that    the       sentence    in

question    was     “based       on    a    statutory          minimum        and    U.S.S.G.    §

5G1.1(b),” and § 5G1.1 can now be disregarded under Amendment

780 for purposes of determining whether a defendant is eligible

for a sentence reduction under § 3582(c)(2), the contention is

that Hood no longer controls cases such as the one before the

court.

      Hood, however, did not turn on the operation of U.S.S.G. §

5G1.1.      Rather, Hood’s holding clearly rested on the court’s

conclusion      that     Hood’s       100-month      sentence           was    based    “on    the

mandated statutory minimum sentence required by [21 U.S.C.] §

841(b)(1)(A)       from      which          the     district        court           departed    as

authorized by § 3553(e), employing the factors identified in

U.S.S.G. § 5K1.1.”           Hood, 556 F.3d at 235-36.                         Indeed, Hood’s

sentence would have been the same with or without § 5G1.1--21

                                               30
U.S.C. § 841(b)(1)(A) required the imposition of the mandatory

minimum sentence and 18 U.S.C. § 3553(e) allowed the imposition

of    a   sentence       below   the   statutory   minimum    only   based     on

substantial assistance factors.           Section 3582(c) provides that a

defendant’s sentence may be reduced if the sentence he received

was   “based   on    a    sentencing   range   that   has   subsequently     been

lowered by the Sentencing Commission.”                Hood interpreted that

statutory language and held that a statutorily mandated minimum

sentence is not a sentence that is based on a sentencing range.

While the Sentencing Commission has the authority to overrule

circuit precedent interpreting Guidelines provisions, it cannot

overrule circuit precedent interpreting a statutory provision.

Hood’s interpretation of the statutory phrase “based on” thus

remains controlling.

      Accordingly, I must conclude that Williams’s sentence was

not   “based   on    a    sentencing   range   that   has   been   subsequently

lowered by the Sentencing Commission,” § 3582(c)(2), and that he

is therefore not eligible for a sentence reduction under that

section.    I respectfully dissent.




                                        31
