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UNPUBLISHED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Vacated and remanded by unpublished per curiam opinion.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. 
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Unpublished opinions are not binding precedent in this circuit.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

Fennell pled guilty to one count of conspiracy to 

distribute and possess with the intent to distribute more than 

50 grams of cocaine base. 

is 

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

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. 

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. 

Id.

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.

Fennell disagreed with the probation officer’s 

recommendation, again contending that the appropriate guideline 

range was 100 to 125 months. 

at 508.

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. 

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. 

Id.

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.

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 

 We calendared the 

case for oral argument.

Fennell. We agreed in part and deferred consideration of 

Langley’s rehearing petition pending our decision in Fennell; 
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however, we declined at that point to vacate our earlier 

opinion. Following issuance of this court’s decision in 

Fennell

In 

, 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.

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

However, the remaining issues raised by Langley may 

afford him some relief, in light of our holding in 

, 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.

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 
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it found that “it was bound to use the identical percentagebased reduction method that apparently was employed at the 

initial sentencing.” Id.

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 

at 511 (emphasis omitted).

United States v. 

Fennell

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.” 

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

disposition, we deny Langley’s motion to expedite.

Id. 
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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