                            ON REHEARING

                               UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                               No. 08-7908


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

KENNETH O. LANGLEY,

                Defendant - Appellant.


Appeal from the United States District Court for the Eastern
District of North Carolina, at New Bern.   Louise W. Flanagan,
Chief District Judge. (4:04-cr-00073-FL-1)


Submitted:   August 10, 2010                 Decided:   October 1, 2010


Before TRAXLER,   Chief Judge, and MICHAEL * and        SHEDD, Circuit
Judges.


Vacated and remanded by unpublished per curiam opinion.


Keith Alan Williams, KEITH A. WILLIAMS, PA, Greenville, North
Carolina, for Appellant.   Anne Margaret Hayes, Assistant United
States Attorney, Raleigh, North Carolina, for Appellee.




     *
       The opinion is filed by a quorum pursuant to 28 U.S.C.
§ 46(d). Judge Michael did not participate.
Unpublished opinions are not binding precedent in this circuit.




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PER CURIAM:

            Kenneth Langley filed a petition seeking rehearing of

our opinion affirming the district court’s grant of Langley’s 18

U.S.C. § 3582(c)(2) (2006) motion.                      In his petition, Langley

asserted    that,     in    affirming      the    district       court’s    order,   we

overlooked a case we had recently returned to the oral argument

calendar, United States v. Fennell, No. 08-7238.                           We granted

Langley’s     petition      for    panel        rehearing    on    July    26,   2010.

Because an understanding of the procedural history of Fennell is

necessary to determination of this petition, we outline it here:

            Fennell    pled       guilty    to    one    count    of    conspiracy   to

distribute and possess with the intent to distribute more than

50 grams of cocaine base.                See United States v. Fennell, 592

F.3d 506, 507 (4th Cir. 2010).                    Fennell’s offense level was

originally calculated at twenty-nine, with a criminal history

category of IV, resulting in a guidelines range of 121 to 151

months’ imprisonment.         Id.       The Government moved for a downward

departure     under    U.    S.     Sentencing       Guidelines         Manual   (USSG)

§ 5K1.1, p.s. and 18 U.S.C. § 3553 (2006), based on Fennell’s

substantial assistance to the Government.                        The district court

granted     the   motion,     and       sentenced       Fennell    to     ninety-seven

months’ imprisonment.             Id.      Fennell later filed an 18 U.S.C.

§ 3582(c)(2) motion seeking to receive the benefit of Amendment

706 to the guidelines.            Id.    In his motion, Fennell argued that

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his actual sentence represented approximately a twenty percent

downward departure from the bottom of his original guideline

range   of       121    months.        Id.      Fennell        requested      a   comparable

reduction of twenty percent from the new guideline range yielded

by   his     new       offense       level    of    twenty-seven,            which    Fennell

suggested was 100 to 125 months.                   Id.

                 In    the    resentencing      report,         the    probation      officer

agreed that Fennell’s new total offense level was twenty-seven,

but, in light of the statutory minimum sentence for his offense,

Fennell’s new guideline range would be 120 to 125 months, rather

than the 100 to 125 month range proposed by Fennell.                                 Fennell,

592 F.3d at 507-08.              The report concluded that a twenty percent

reduction from the bottom of the new guideline range would yield

a ninety-six month sentence, only one month less than Fennell’s

original sentence.             Id. at 508.

              Fennell         disagreed       with       the      probation          officer’s

recommendation, again contending that the appropriate guideline

range   was       100    to    125    months.        Fennell,          592    F.3d    at    508.

Alternatively,           Fennell     argued    that      the     district      court       could

perform      a     comparability        analysis        based    on     the    top    of    the

guidelines            range    recommended         by     the         probation      officer.

Fennell’s original sentence was a thirty-six percent reduction

from the top of his original 125 to 151 month guideline range; a

thirty-six percent reduction from the top of the new guideline

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range of 120 to 125 months would yield a sentence of eighty

months’ imprisonment.      Id.

              The district court adopted the recommendation of the

resentencing report, granted Fennell’s motion, and limited his

reduction in sentence to one month, for a reduced sentence of

ninety-six months’ imprisonment.          Fennell, 592 F.3d at 508.     In

explaining the basis for its sentence, the district court stated

that it did not believe it had the discretion or authority to

grant a reduction greater than one month, as this number was

twenty percent less than the bottom of Fennell’s new guideline

range of 120 to 125 months’ imprisonment, which resulted from

the statutorily prescribed ten-year minimum imprisonment term.

Id.   Fennell appealed, contending that the district court erred

in determining that it lacked the discretion to sentence Fennell

below ninety-six months’ imprisonment.          Id.    We calendared the

case for oral argument.

              In his timely rehearing petition, Langley argued that

due to the similarities between the two cases — both offenses

carried   a    statutory   minimum   of   ten-years   imprisonment,   both

defendants’ § 3582(c)(2) reductions were limited to one month,

and the same judge presided over both cases — we should vacate

our opinion and place his appeal in abeyance pending the outcome

of Fennell.       We agreed in part and deferred consideration of

Langley’s rehearing petition pending our decision in Fennell;

                                     5
however,      we     declined       at    that       point          to    vacate      our    earlier

opinion.           Following       issuance          of       this       court’s      decision    in

Fennell, Langley’s case has been removed from abeyance, and his

petition      for    panel    rehearing          was      granted.             His   arguments     on

rehearing are accordingly now ripe for review.

              In     Fennell,       we    first        noted         that       Fennell     did   not

challenge on appeal the district court’s finding that Fennell’s

amended guideline range was 120 to 125 months’ imprisonment.

Nevertheless, we determined that the district court correctly

calculated the appropriate amended guideline range, based on the

120   month    statutory          minimum       sentence            faced      by   Fennell.      See

Fennell, 592 F.3d at 508 n.1.                    Thus, to the extent that Langley

argues that the district court should have disregarded the 120

month mandatory minimum and found that his amended guideline

range was 97 to 121 months, this argument is without merit.

              However, the remaining issues raised by Langley may

afford him some relief, in light of our holding in Fennell.                                        In

Fennell,      we     concluded           that    the          district          court     erred   in

determining         that   there      was       only          one    permissible        method     of

calculating a sentence reduction under § 3582(c)(2).                                        592 F.3d

at 509.       Instead, we held that “a sentencing court may use any

reasonable      method       in    calculating            a    downward         departure      during

resentencing         and     is     not     limited            by        any    specific       method

previously used.”          Id.      Therefore, the district court erred when

                                                 6
it found that “it was bound to use the identical percentage-

based   reduction        method       that    apparently          was    employed       at    the

initial sentencing.”               Id. at 511 (emphasis omitted).

            Because the district court did not hold a resentencing

hearing prior to granting Langley’s § 3582(c)(2) motion, it is

impossible      to     know    whether       the     district      judge,       in     granting

Langley’s    motion,         limited    her    reduction          to    one    month    on    the

erroneous belief that she did not have the authority to use an

alternate       method        to     calculate       a     comparable          reduction       to

Langley’s       sentence.           However,       the     fact    the       district       judge

expressed       this     view        only    two     months       prior        to     Langley’s

resentencing — when she resentenced Fennell — strongly suggests

this to be the case.                Accordingly, we vacate Langley’s sentence

and remand for resentencing consistent with United States v.

Fennell,    592       F.3d    506     (4th    Cir.       2010).         In    light    of    this

disposition, we deny Langley’s motion to expedite.

            In so doing, we wish to emphasize that we offer no

opinion    as    to    the     particular      method       to     be    utilized       by    the

district court when calculating an Langley’s amended sentence on

remand, or the appropriate outcome of that proceeding.                                 Instead,

we remand to allow the district court to exercise its discretion

“to use any of the reasonable methods . . . to calculate a

sentence comparable to that previously imposed, in light of the

purpose and effect of Amendment 706.”                      Id.

                                               7
            We dispense with oral argument because the facts and

legal    contentions   are   adequately   presented     in   the    materials

before   the   court   and   argument   would   not   aid    the   decisional

process.

                                                      VACATED AND REMANDED




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