                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 16-6461


UNITED STATES OF AMERICA,

                      Plaintiff – Appellee,

          v.

ALBERT EUGENE HARDY, JR.,

                      Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Asheville. Martin K. Reidinger,
District Judge. (1:07-cr-00010-MR-1)


Submitted:   November 17, 2016            Decided:   December 5, 2016


Before TRAXLER, KING, and THACKER, Circuit Judges.


Vacated and remanded by unpublished per curiam opinion.


Ross Hall Richardson, Executive Director, Joshua B. Carpenter,
FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA, INC., Asheville,
North Carolina, for Appellant. Jill Westmoreland Rose, United
States Attorney, Amy E. Ray, Assistant United States Attorney,
Asheville, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

       Albert Eugene Hardy, Jr., appeals from the district court’s

order    granting     in    part    and   denying        in    part    his    18     U.S.C.

§ 3582(c)(2) (2012) motion for a sentence reduction.                          On appeal,

he contends that the district court erred in failing to consider

relevant 18 U.S.C. § 3553(a) factors and analyze them explicitly

on the record.        We agree, and thus, we vacate and remand for

further proceedings.

       After Hardy originally pled guilty, the probation officer

prepared      a   presentence      report       (PSR),    calculating        an    offense

level of 31 and finding that Hardy’s criminal history category

was V.        Hardy’s Sentencing Guidelines range was 168-210 months

in   prison.       However,     because         Hardy    was    also    subject       to   a

statutory mandatory minimum term of 20 years in prison under 21

U.S.C.    §    841(b)(1)(A)     (2012),     and    pursuant      to    the    21     U.S.C.

§ 851 (2012) notice filed by the Government, the PSR recognized

that     Hardy’s    Guidelines       range       was     240    months       under    U.S.

Sentencing Guidelines Manual § 5G1.1(b) (2006).

       The Government moved for a downward departure based upon

Hardy’s       substantial     assistance         under    USSG    §      5K1.1.         The

Government recommended a downward departure to the Guidelines

range of 168-210 months in prison.                     The district court granted

the motion for a downward departure and sentenced Hardy to 168

months in prison.

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     In    2015,       Hardy      moved    for       a   reduction         in     sentence      under

§ 3582(c)(2) (2012), arguing that he was eligible for immediate

relief under Amendments 750 and 780.                                 In Hardy’s motion, he

described    the       operation          of    USSG       §§    1B1.10         and     5G1.1     and

concluded that he was eligible for a term of imprisonment as low

as 84 months.          Regarding the appropriate sentence to be imposed,

the only reasoning Hardy provided was the assertion that he had

a clean disciplinary record in prison and that he had completed

numerous     education         programs         and       work       assignments        while       in

prison.

     The     probation             officer       prepared            a     supplemental          PSR,

concluding that, due to the amount of crack cocaine, Hardy was

ineligible       for    a      reduction        under       Amendments            750   and     780.

However, the probation officer determined that Hardy would be

eligible    for    a     reduction         under         Amendment         782.    Specifically,

Hardy’s offense level would be reduced to 29, resulting in a

Guidelines range of 140 to 175 months in prison.                                      Noting that

USSG § 1B1.10(c) instructs a court to disregard § 5G1.1 where a

defendant     received         a     substantial           assistance           departure,       the

probation    officer         determined         that       Hardy         was    eligible      for   a

reduction in his sentence to 98 months in prison, or a reduction

to   70%    of    the       low     end    of    the       amended         Guidelines         range,

representing       a    reduction         comparable            to       the    reduction       Hardy



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received from the Guidelines term of 240 months as a result of

the Government’s original motion for a downward departure.

       The Government agreed with the PSR and consented to the

full    extent    of   the      reduction.        The   district     court    granted

Hardy’s motion for a reduced sentence, but limited the reduction

to 140 months in prison.              The court noted that Hardy’s sentence

was originally enhanced as a result of the § 851 notice and his

cooperation       garnered      a    reduction     to    the   low    end     of    the

Guidelines range, without consideration of the § 851 notice.

The    district    court     stated     that   Hardy’s     reduced    sentence       was

likewise at the low end of the amended Guidelines range without

consideration of the § 851 enhancement.                  The court filled out a

form, stating that the Guidelines range both before and after

the amendment was 240 months, the statutory mandatory minimum.

       On appeal, we vacated Hardy’s sentence and remanded for

further consideration.              We noted that the district court failed

to explicitly “specify the extent of the permissible reduction”

to     98   months.        We    also    stated     that    the    district        court

incorrectly concluded that the amended Guidelines range was 240

months, even though the Guidelines specifically direct that “the

amended guideline range shall be determined without regard to”

the statutory mandatory minimum.               USSG § 1B1.10(c).            For these

reasons, we concluded that the district court did not appreciate



                                           4
the scope of its authority under § 3582(c)(2).                       United States v.

Hardy, 640 F. App’x 233, 236-37 (4th Cir. 2016) (No. 15-6966).

       On remand, on February 10, 2016, Hardy filed a supplemental

sentencing memorandum, again requesting a sentence of 98 months

in prison.      This memorandum was much more detailed regarding the

applicable      factors      to    be   considered.          Hardy    noted    that    the

Government had reiterated its consent to a 98-month sentence at

oral   argument      on    appeal.        Hardy     argued    that     the    Sentencing

Commission      determined         that      “cooperating      defendants          deserve

special treatment when it comes to sentence reductions under

§ 3582(c)(2).”         According to Hardy, the Commission decided that

the    best    way   to    effectuate        that   policy    goal     was    to   remove

consideration of the mandatory minimum (and thus any affect from

the § 851 notice) from the sentencing calculus.                         Hardy averred

that the amended Guidelines range of 140 to 175 months was a

“rough    approximation            of   [a    sentence]       that     might       achieve

§ 3553(a)’s objectives” and that this Guidelines range did not

account for Hardy’s substantial assistance.                          Hardy argued for

the full extent of the permissible reduction, contending that he

had an exemplary prison record and the Government would likely

not file an § 851 notice in Hardy’s case were he prosecuted

under current policy.

       Hardy    also      stated    that,     while   his    criminal        history   was

lengthy, his most serious conviction (the predicate drug felony)

                                              5
occurred in 1990, more than 17 years before the offense in this

case,   and     several   convictions     occurred      in    his      youth.        Hardy

argued, for the first time, that two of his convictions were

erroneously assigned points.              He conceded that he was barred

from    challenging       the    calculation      of    his       criminal         history

category at this late date, but he noted the issue was a factor

to   consider     under    §    3553.      Finally,     Hardy         stated       that    a

co-defendant, for whom Hardy worked, was eventually sentenced

within the amended Guideline range of 84 to 105 months, which

created a sentencing disparity in his case.                    The Government did

not file a response.

       On March 9, 2016, the district court granted the motion for

a reduction in sentence and again entered a sentence of 140

months.    The court provided a factual background and noted that

the issue was ripe for review, without recognizing that Hardy

had filed a supplemental sentencing memorandum on remand.                                 The

court explicitly stated that Hardy was eligible for a sentence

as   low   as    98   months     and    averred   that       it       “concluded      this

originally, but did not adequately document it.”                       The court then

noted   that,     while    a    defendant’s    eligibility            for    a    sentence

reduction must be determined without regard for the mandatory

minimum sentence, the § 851 notice can still be considered in

analyzing the § 3553 factors.                 In so doing, the court again

reasoned      that,   without    consideration     of    the      §    851       notice,   a

                                          6
defendant could be sentenced to a “lower sentence because of a

prior felony drug conviction that served as the basis for the

§ 851 notice.”

     The     court    claimed      that        “this   issue”      (presumably       the

interplay    between      an   §   851    notice,      a   substantial       assistance

departure, and a § 3582 reduction) was not addressed by Hardy’s

counsel.    The court continued that “the third step of the Dillon *

analysis    was     simply     ignored     and    replaced        with   a   formulaic

request for the lowest possible sentence for which the Defendant

is eligible, without any further explanation and without any

acknowledgement of the impact of the Defendant’s § 851 Notice.”

The court reasoned that a 140-month sentence reduced Hardy’s

sentence the equivalent of two offense levels, which was the

general    intent    of   Amendment       782    and   was   in    accord     with   the

§ 3553(a)    factors      as   originally        analyzed     by     the     sentencing

court.     In addition, the district court stated that, analyzing

the § 3553 factors anew would result in the same sentence.                           The

court     noted   that    Hardy     was    responsible        for    a     substantial

quantity of a dangerous drug and that, absent some recognition



     * Dillon v. United States, 560 U.S. 817 (2010). The Supreme
Court described the “third” step of the Dillon analysis as
follows:   “consider   any  applicable   § 3553(a)  factors  and
determine whether, in its discretion, the reduction authorized
. . . is warranted in whole or in part under the particular
circumstances of the case.” Id. at 827.



                                           7
of    the    §     851   notice,       the    resulting          sentence    would    create

sentencing disparities.               Hardy timely appealed.

       This court “review[s] a district court’s grant or denial of

a § 3582(c)(2) motion for abuse of discretion. . . .                                 But the

question of whether a court ruling on a § 3582(c)(2) motion must

provide an individualized explanation is one of law that [this

court] consider[s] de novo.”                  United States v. Smalls, 720 F.3d

193,   195       (4th    Cir.    2013)       (citation         omitted).      In    deciding

whether to grant a motion for a sentence reduction, the district

court must first determine whether the defendant is eligible for

the reduction, consistent with USSG § 1B1.10, p.s., and then

“consider whether the authorized reduction is warranted, either

in whole or in part, according to the factors set forth in

§ 3553(a),” Dillon v. United States, 560 U.S. 817, 826 (2010),

“to    the        extent       that        they       are     applicable,”     18        U.S.C.

§ 3582(c)(2).            The    court       may       also    consider   “post-sentencing

conduct of the defendant that occurred after imposition of the

term    of       imprisonment”        in    determining          whether,    and    to    what

extent, a sentence reduction is warranted.                          USSG § 1B1.10, p.s.,

cmt. n.1(B)(iii).

       In United States v. Legree, 205 F.3d 724 (4th Cir. 2000),

we considered the adequacy of a district court’s explanation in

a § 3582(c)(2) proceeding.                   Although Legree was eligible for a

sentence         reduction,     the     district            court   denied   relief      after

                                                  8
“describing [the] motion, recounting the history of Amendment

505, and observing that a court is not required to reduce a

sentence under the Amendment.”               Id. at 728.         Legree argued that

“the district court erred by neglecting to undertake a two-prong

analysis on the record when considering the motion for reduction

of sentence,” id. at 727-28, and in failing to “state on the

record with sufficient specificity its reasons for denying the

motion,” id. at 729 n.3.             We disagreed, holding that, “absent a

contrary indication,” it is presumed that the district court has

considered the § 3553(a) factors and other “issues that have

been fully presented for determination,” and thus “[n]o greater

specificity   was     required.”         Id.       at   728-29      &   n.3   (internal

quotation marks omitted).

      We concluded that the case had been fully presented for

determination because the same district court that had denied

Legree’s § 3582(c)(2) motion had presided over his sentencing

hearing,    during     which    it     had       considered    several        mitigating

factors.    Id. at 729.         We deemed it significant that Legree had

not   presented      any   additional            mitigating        factors      when   he

submitted his sentence reduction motion.                    Id.; see also Smalls,

720 F.3d at 195-97, 199 (rejecting challenge to sufficiency of

explanation    when     court    reduced         sentence     to    top    of    amended

Guidelines range, stating only that it had considered § 3553(a)

factors).     In     Smalls,    this    Court       reemphasized        “that,   in    the

                                             9
absence   of    evidence     a     court     neglected        to    consider    relevant

factors, the court does not err in failing to provide a full

explanation for its § 3582(c)(2) decision.”                       720 F.3d at 196.

      We conclude that here there is, in fact, evidence that the

court neglected to consider relevant factors.                            Because Hardy

presented plausible arguments as to the propriety of considering

the   § 851    notice   as    well      as    the    application        of    the   § 3553

factors and because the district court did not acknowledge these

arguments and, in fact, stated that no such arguments had been

made, the district court either overlooked Hardy’s filing or

made a mistake of fact in reading it.                     In addition, because the

judge is not the same judge who presided over Hardy’s original

sentencing and because the memorandum addressed new issues not

addressed at sentencing or in the original sentencing memorandum

in the § 3582 motion, we find that the failure to provide more

detailed reasoning prevents us from determining whether there

was an abuse of discretion.

      Thus,    we   vacate       and    remand      to    the     district     court    for

further   proceedings        consistent           with   this      opinion.     We     deny

Hardy’s   request    for     the       assignment        of   a    different    judge    on

remand.       We dispense with oral argument because the facts and




                                             10
legal    contentions    are   adequately   presented     in   the   materials

before   this   court   and   argument   would   not   aid    the   decisional

process.



                                                       VACATED AND REMANDED




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