UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 08-5159

UNITED STATES OF AMERICA,

Plaintiff - Appellant,

v.

GREGORY LYNN LIVELY,

Defendant - Appellee.

Appeal from the United States District Court for the District of 

Maryland, at Baltimore. J. Frederick Motz, District Judge. 

(1:08-cr-00236-JFM-1)

Argued: December 1, 2009 Decided: August 4, 2010

Before TRAXLER, Chief Judge, and WILKINSON and MICHAEL, Circuit 

Judges.

Vacated and remanded by unpublished per curiam opinion.

ARGUED: Michael Joseph Leotta, OFFICE OF THE UNITED STATES 

ATTORNEY, Baltimore, Maryland, for Appellant. Jason Wayne 

Shoemaker, SHOEMAKER & CONNOR, LLC, Bethesda, Maryland, for 

Appellee. ON BRIEF: Rod J. Rosenstein, United States Attorney, 

Baltimore, Maryland, for Appellant. 

Unpublished opinions are not binding precedent in this circuit.
2

PER CURIAM:

The government appeals Gregory Lively’s sentence of 

one day in prison and a lifetime of supervised release for 

distribution of child pornography. The government argues that 

the district court was not authorized to impose a sentence below 

the statutory mandatory minimum of five years because counsel 

for the government did not make a substantial assistance motion 

under 18 U.S.C. § 3553(e). The government further argues that 

even if the district court was authorized, it erred by departing 

below the mandatory minimum for reasons unrelated to substantial 

assistance.1

 1 Because we vacate Lively’s sentence on other grounds, we 

do not consider the government’s additional arguments that the 

district court could not “deem” served the one day in prison and 

that Lively’s sentence was substantively unreasonable.

 We agree with the government that the district 

court is not authorized to impose a sentence below the statutory 

minimum in the absence of a § 3553(e) motion. There remains a 

question, however, as to whether the government was obligated to 

make a § 3553(e) motion under the terms of Lively’s plea 

agreement. If it was, the district court is authorized to 

impose a sentence below the statutory minimum but only for 

reasons related to Lively’s substantial assistance. 

Accordingly, we vacate Lively’s sentence and remand for the 

district court (1) to decide in the first instance whether the 
3

government was obligated to make a § 3553(e) motion and (2) to 

impose an appropriate sentence.

I.

Lively first attracted the attention of law 

enforcement when he purchased from an undercover website a video 

of an eight-year-old girl being raped. Federal agents traced 

the purchase to Lively’s computer and his home address. When 

they arrived to make an arrest, they found a depressed young man 

in his early 20s living out of his parents’ basement. Lively

offered no resistance, confessed his guilt, and pointed agents 

to his computer where they found approximately 1300 images of 

child pornography. Lively told law enforcement that his 

involvement with child pornography was limited to trading 

pictures and videos online, occasionally purchasing but never 

selling or creating them. The pictures found on his computer 

featured adults having sex with various prepubescent children, 

some as young as eight years old. Lively said he felt guilty on 

several occasions, but always returned to trading. 

Lively eventually pled guilty to one count of 

distribution of child pornography under 18 U.S.C. 

§§ 2254(a)(2)(A), 2256. The plea agreement noted that Lively’s 

sentence was limited by statute to a maximum term of 20 years 

imprisonment and a minimum term of 5 years. Lively agreed to 
4

cooperate with the government and, if instructed, to act in an 

undercover capacity to assist in criminal investigations. He 

accepted the government’s guideline calculation of offense level 

37, which incorporated a three-level reduction for substantial 

assistance. Regarding the obligations of the U.S. Attorney, the 

agreement provided as follows:

If this Office determines that the Defendant has 

provided substantial assistance in an investigation or 

prosecution of others, and if he has fully complied 

with all of his obligations under this agreement, this 

Office will make a motion, pursuant to U.S.S.G. 

§ 5K1.1 and 18 U.S.C. § 3553(e), requesting that the 

Court sentence the Defendant in light of the advisory 

factors set forth in § 5K1.1(a)(1)-(5) and requesting 

a downward departure of up to two (2) levels. The 

Court is authorized to grant such a departure pursuant 

to 18 U.S.C. § 3553(e). This Office shall have sole 

discretion in determining whether the Defendant has 

provided such substantial assistance and, therefore, 

whether to make any motion pursuant to § 5K1.1 and 18 

U.S.C. § 3553(e). . . . If this Office makes a motion 

for a departure under § 5K1.1 and 18 U.S.C. § 3553(e),

the Defendant is not bound by the departure level 

recommended by this Office. . . . It is understood 

that, even if such a motion is made, the sentence to 

be imposed on the Defendant remains within the sole 

discretion of the Court.

J.A. 10-11. The agreement also provided that the U.S. Attorney 

“waives any right to appeal from any sentence within or above 

the advisory guidelines range resulting from an adjusted base 

offense level of 35.” J.A. 11. The agreement would not, 

however, constrain the U.S. Attorney from appealing a sentence 

“that is illegal or that . . . is less than any applicable 

statutory mandatory minimum provision.” J.A. 11.
5

At sentencing Lively put on several witnesses, 

including members of his family and his therapist. They 

testified that he had recently been making great strides in 

therapy and that he was not a danger to society. Drawing on the 

therapist’s testimony in particular, defense counsel argued that 

no jail time and a sentence of lifetime supervised release was 

appropriate.

The government moved for a two-level departure under 

§ 5K1.1 and advocated for an offense level of 35 and a sentence 

of 168 months — the low end of the guideline range for offense 

level 35, criminal history category I. The government told the 

court that Lively had provided substantial assistance to the 

government by allowing federal agents to use his online screen 

name and related information to investigate two of his child 

pornography trading partners. One of these partners was 

prosecuted and sentenced to 30 years in prison for the 

distribution of child pornography. At no point, however, did 

the government expressly make a motion, either verbally or in 

writing, under § 3553(e). 

The district court asked the government about the 

existence of a mandatory minimum and the court’s authority to 

sentence below that minimum. The following colloquy transpired:

THE COURT: Is there a mandatory minimum?
6

MS. GREENBURG: Your Honor, there’s a five-year 

mandatory minimum, but of course, there is a 5K 

motion.

THE COURT: Which takes it under?

MS. GREENBURG: Your Honor, the position of the 

office, I hate to — the position of the office is that 

the 5K only gets it — because the advisory guideline 

range is well above the mandatory minimum, it gets 

down the two-levels doesn’t get below the —

THE COURT: What’s the legality of that? I mean,

some motions for downward departure — I mean, there’s 

a legal question here, whether or not a motion for 

cooperation takes it under the mandatory minimum.

MS. GREENBURG: If the cooperation is of — to the 

extent to get below the mandatory minimum. In this

case the Court would have to find that the cooperation 

was worth —

THE COURT: That’s what the state of the law is?

MS. GREENBURG: I believe so.

J.A. 76. Shortly after this colloquy, the district court 

announced its sentence.

The district court imposed a sentence of one day of

imprisonment and a lifetime of supervised release. Although 

Lively had not previously been incarcerated, the district court 

“deemed” the one day of imprisonment to have already been 

served. The district court began its explanation of the 

sentence by granting the government’s motion for a downward 

departure. Instead of departing downward by two levels as 

recommended by the government, the court departed downward by 

eleven levels, reasoning that “the two levels suggested by the 
7

Government clearly is inadequate, since [Lively’s] cooperation 

resulted in a 30-year incarceration of someone who was molesting 

their grandchildren.” J.A. 80-81. Believing an eleven-level 

departure brought Lively’s range below the mandatory minimum 

(which would have required a twelve-level departure), the court 

then proceeded to vary the sentence all the way down to one day 

of imprisonment. In explaining the variance below the statutory 

minimum, the district court diligently applied the § 3553(a) 

factors. Finally, the court imposed a lifetime of supervised 

release under terms including the installation of monitoring 

software on computers in Lively’s home. 

After announcing its sentence, the district court 

acknowledged that there remained a “real question [as to] 

whether I’m properly applying the sections — the factors under 

3553, taking the guidelines into account.” J.A. 92. 

Ultimately, however, the court concluded that “this sentence is 

the right sentence.” J.A. 95. The government now appeals.

II.

We agree with the district court that the primary 

issue is whether it correctly applied § 3553. We also agree 

with the parties that, on this issue, United States v. Allen, 

450 F.3d 565 (4th Cir. 2006) controls. Our interpretation of 
8

Allen

In 

, however, requires a different result from that reached by 

the district court and that requested by either party.

Allen we held that district courts could not 

sentence defendants below a statutory minimum unless §§ 3553(e) 

or (f) permitted them to do so. 450 F.3d at 568. Section 

3553(f) does not apply to this case. Accordingly, Allen

Upon motion of the Government, the court shall have 

the authority to impose a sentence below a level 

established by statute as a minimum sentence so as to 

reflect a defendant’s substantial assistance in the 

investigation or prosecution of another person who has 

committed an offense. Such sentence shall be imposed 

in accordance with the guidelines and policy 

statements issued by the Sentencing Commission 

pursuant to section 994 of title 28, United States 

Code.

’s 

holding requires this panel to vacate and remand unless the 

conditions of § 3553(e) are met. That provision reads:

Citing Melendez v. United States, 518 U.S. 120 (1996), the panel 

in Allen held that § 3553(e) was not satisfied if the government 

merely moved for a departure under § 5K1.1. Allen, 450 F.3d at 

568. Rather, “before a district court could sentence below a 

statutory mandatory minimum, the government must specifically 

move [under § 3553(e)] for such departure.” Id.

Applying this rule to the facts before it, the panel 

in 

 

Allen held that the district court had erred because it 

departed below the statutory minimum in the absence of a 

§ 3553(e) motion. Id. at 570. In determining that no motion 
9

had been made, the panel relied primarily on the fact that the 

government had made no mention of § 3553(e) at sentencing or in 

its briefs. It also noted that the plea agreement had referred

to the statutory minimum but not § 3553(e), and that the 

agreement contained an exception to the government’s waiver of 

appeal for sentences below the statutory minimum. Id.

The panel rejected the argument that the district 

court was authorized to depart below the mandatory minimum 

because the government had

at 569. 

intended to make a motion under 

§ 3553(e). Counsel for the government actually admitted at oral 

argument: (1) that the government had intended to move under 

§ 3553(e); (2) that it was official policy for the motions to be 

made with 5K1.1 motions; and (3) that the parties and the 

district court had worked from the premise that the § 5K1.1

motion encompassed § 3553(e). Counsel for the defendant further 

represented that his client would not have pled guilty had the 

court been constrained. The panel nevertheless interpreted 

§ 3553(e) strictly and held that no motion had been made and 

that remand was therefore necessary. Id.

In a final footnote, the panel observed that “[g]iven 

counsel for the government's concession at oral argument that he 

intended the § 5K1.1 motion to include, albeit 

 

sub silentio, a 

§ 3553(e) motion as well, one would assume that the government 

has obligated itself to do so on remand.” Id. at 570 n.5. 
10

Assuming the government made that motion on remand, the panel 

emphasized that the district court should still calculate the 

guideline range and assess under the § 3553(a) factors whether a 

guideline sentence would be appropriate.

We think it is clear from Allen that the government 

did not make a § 3553(e) motion in this case. Section 3553(e) 

was never mentioned during the sentencing hearing, and no 

written motion citing § 3553(e) was submitted to the court. 

Regardless of what the government intended at the time — and 

unlike in Allen, the government here denies that it ever 

intended to make a motion under § 3553(e) — it did not make a 

§ 3553(e) motion. Accordingly, the district court was not 

authorized to depart or impose a variance below the statutory 

minimum.2

Lively argues that Allen

 2 Lively argues that even if § 3553(e) did not authorize the 

imposition of a sentence below the statutory minimum, the 

district court retains discretion to impose a sentence outside 

the statutory range under United States v. Booker, 543 U.S. 220 

(2005). This argument is foreclosed by circuit precedent. 

United States v. Robinson, 404 F.3d 850, 862 (4th Cir. 2005).

is distinguishable because 

the plea agreement in that case did not mention § 3553(e) while 

the plea agreement in this case does. We do not think this 

difference is material. The reference in the plea agreement to 

the government making a motion “under § 5K1.1 and 18 U.S.C. 
11

§ 3553(e)” suggests that the government intended to make both 

motions upon a showing of substantial assistance. It does not 

establish that the government actually made such a motion. 

Similarly, the colloquy concerning the mandatory minimum that 

transpired between the district court and the government 

suggests only that the government believed a § 5K1.1 motion 

permitted the district court to depart below the mandatory 

minimum. J.A. 76 (“Your Honor, there’s a five-year mandatory 

minimum, but of course, there is a 5K motion.”); id.

The reference in the plea agreement to the government 

making a motion “under § 5K1.1 and 18 U.S.C. § 3553(e)” is not, 

however, meaningless. Indeed, we think that, as in

(“If the 

cooperation is of — to the extent to get below the mandatory 

minimum. In this case the Court would have to find that the 

cooperation was worth [an amount taking it below the 

minimum].”). To the extent Lively is arguing that we should 

imply from this colloquy that the government in fact made a 

§ 3553(e) motion, we decline to do so. There are no implied 

§ 3553(e) motions. Either the government expressly makes the 

motion or it doesn’t.

Allen, the 

government may have been obligated to make a § 3553(e) motion. 

The plea agreement expressly provides that the government “will

make a motion, pursuant to U.S.S.G. § 5K1.1 and 18 U.S.C. 

§ 3553(e)” if it determines that Lively provided substantial 
12

assistance. If the government had wanted to reserve discretion 

to make one or the other or both motions even after finding 

substantial assistance, it could have simply replaced the “and” 

with an “or”. In fact, the phrase appears three times in the 

relevant portion of the plea agreement, and the word “and” is 

used in each. 

We need not decide this issue here or address the 

government’s position at oral argument that, read as a whole,

the plea agreement is best read to give the government 

discretion to make a § 3553(e) motion. The issue was not 

briefed by the parties, and interpreting the agreement may 

require findings of fact. Accordingly, the district court on 

remand should decide in the first instance whether the 

government was contractually obligated to make a § 3553(e) 

motion after determining that Lively provided substantial 

assistance.

Finally, we note that if the government was obligated 

to make a § 3553(e) motion, the district court may not, as it 

did here, justify imposing a sentence below the statutory 

minimum based on the § 3553(a) factors. District courts have

discretion to impose a non-guideline sentence between the 

statutory maxima and minima, provided the sentence comports with 

procedural and substantive reasonableness. See United States v. 

Curry, 523 F.3d 436, 439 (4th Cir. 2008). Applying the 
13

§ 3553(a) factors is just one requirement of procedural 

reasonableness. If the government was obligated to make a 

§ 3553(e) motion, then and only then is the district court 

authorized to impose a sentence below the mandatory minimum. 

Furthermore, while the district court may justify imposing the 

statutory minimum based solely on the § 3553(a) factors, it may 

justify imposing a sentence below the minimum only by reference 

to the defendant’s substantial assistance. United States v. 

Hood, 556 F.3d 226, 234 n.2 (4th Cir. 2009); 18 U.S.C. 

§ 3553(e). “As the plain language of the statute makes clear, 

§ 3553(e) allows for a departure from, not the removal of, a 

statutorily required minimum sentence.” United States v. 

Pillow, 191 F.3d 403, 407 (4th Cir. 1999). “[T]he district 

court should use the factors listed in § 5K1.1(a)(1)-(5) as its 

guide when it selects a sentence below the statutorily required 

minimum sentence.” Id.

III.

For the reasons stated, we vacate Lively’s sentence 

and remand for the district court both to determine whether the 

government obligated itself to make a § 3553(e) motion and to 

impose a new sentence consistent with this opinion.

VACATED AND REMANDED