UNPUBLISHED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Vacated and remanded by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.
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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 
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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) 
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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 
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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.
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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 
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“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 
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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 
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legal contentions are adequately presented in the materials 

before this court and argument would not aid the decisional 

process.

VACATED AND REMANDED