**ON REHEARING**
**UN PUBLISHED**  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.

Vacat ed and remanded by un published 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 Judge Michael did not participate.2 Unpublished opinio ns are not binding precedent in this circuit.3 PER CURIAM: Kenneth Langley filed a petition seeking rehearing o f our opinion affirming the district court’s grant of Langley’s 18 U.S.C. §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 t he 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 St ates 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 fo r 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

mon ths’ imprisonment. Id. Fen nell 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 that4 his actual sentence represented approximately a twenty percent downwar d 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 12 5 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, ra ther 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 Fenne ll’s original sentence. Id. Fennell disagreed with the probation officer’s recommendation, again contending that the appropriate guideline
range wa s 100 to 125 months. at 508.

Fennell , 592 F.3d at 508. Alternatively, Fennell argued that the district c ourt 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 thir ty

- six percent reduction from the top of the new guideline5 range of 120 to 125 months would yield a sentence of eighty months’ imprisonment. The district court adopted the recommendation of the

re sentencing report, granted Fennell’s motion, and limi ted 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 authorit y 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.
I d. 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, Langl ey argue d 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 ;6 however, we declined at that point to vacate our earlier opin ion. 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 tha t 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 Fe nn ell. See
Fe nn ell

However, the remaining issues raised by Langley may afford him some relief, in light of our holding in , 592 F.3d at 5 08 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 gui deline 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 hel d that “a sentencing court may use any reasonable method in calculating a downward departure during resentencing and is not lim ited by any specific method previously used.” Id. Therefore, the district court erred when7 it found that “it was bound to use the identical percentage

based 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

erroneou s 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 resenten ced Fennell

— strongly suggests this to be the case. Accordingly, we vacate Langley’s sentence and remand for resentencing consistent with at 511 (emphasis o mitted)
.

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 rem and 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 e xpedite.

Id.8 We dispense with oral argum ent 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