United States of America v.  LARRY DONNELL LINDSEY,a/k/a Donnell

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 08-7715 
LARRY DONNELL LINDSEY,a/k/a
Donnell,
Defendant-Appellant. 
 UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 08-7728 
LONNIE DEWAYNE ROBINSON, a/k/a
Black Lonnie,
Defendant-Appellant. 
Appeals from the United States District Court
for the Western District of North Carolina, at Charlotte.
Frank D. Whitney, District Judge.
(3:98-cr-00050-FDW-1; 3:95-cr-00178-FDW-9)
Argued: December 2, 2008
Decided: February 20, 2009
Before WILLIAMS, Chief Judge, and NIEMEYER
and MOTZ, Circuit Judges.

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No. 08-7715 affirmed; No. 08-7728 vacated and remanded by
published opinion. Judge Niemeyer wrote the opinion, in
which Chief Judge Williams and Judge Motz joined.
COUNSEL
ARGUED: Matthew Segal, FEDERAL DEFENDERS OF
WESTERN NORTH CAROLINA, INC., Asheville, North
Carolina, for Appellants. Amy Elizabeth Ray, OFFICE OF
THE UNITED STATES ATTORNEY, Asheville, North Car-
olina, for Appellee. ON BRIEF: Claire J. Rauscher, Executive
Director, FEDERAL DEFENDERS OF WESTERN NORTH
CAROLINA, INC., Asheville, North Carolina; Cecilia Osegu-
era, Steven Slawinski, Charlotte, North Carolina, for Appel-
lants. Gretchen C. F. Shappert, United States Attorney,
Charlotte, North Carolina, for Appellee.
OPINION
NIEMEYER, Circuit Judge:
In light of Amendment 706 to the Sentencing Guidelines,
which retroactively reduced the offense levels for crack
cocaine offenses, Larry Donnell Lindsey and Lonnie
DeWayne Robinson filed motions in the district court to
reduce their sentences, relying on 18 U.S.C. § 3582(c)(2),
which authorizes a district court to reduce a sentence where
"a defendant . . . has been sentenced to a term of imprison-
ment based on a sentencing range that has subsequently been
lowered by the Sentencing Commission." (Emphasis added).
Both defendants’ sentences were based on sentencing ranges
determined under U.S.S.G. § 2D1.1, which Amendment 706
amended, and both defendants’ sentences were reduced by the
district court under U.S.S.G. § 5K1.1 for their substantial
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assistance to the government. But, even though Amendment
706 reduced these defendants’ offense levels, it did not lower
their sentencing ranges of 360 months’ to life imprisonment.
Yet, Lindsey and Robinson contend that because the district
court departed downward nine offense levels under § 5K1.1,
their sentencing ranges should be modified to correspond to
an offense level first reduced two levels under Amendment
706 and then reduced by the nine levels for substantial assis-
tance. The district court rejected this approach and denied the
defendants’ motions.
As to Lindsey, we affirm. Amendment 706, when applied
to Lindsey in accordance with U.S.S.G. § 1B1.10(b)(1), does
not lower his "sentencing range" or "applicable guideline
range," as required by 18 U.S.C. § 3582(c)(2) and U.S.S.G.
§ 1B1.10(a)(2)(B). The district court’s departure from the
"applicable guideline range" to impose a lower sentence under
U.S.S.G. § 5K1.1, based on Lindsey’s substantial assistance
to the government, has no legal effect on this analysis.
As to Robinson, we vacate and remand to a different dis-
trict judge on the ground that the sentencing judge operated
unwittingly under a conflict of interest that disqualified him
under 28 U.S.C. § 455(b)(3).
I
Larry Donnell Lindsey
Lindsey pleaded guilty, pursuant to a written plea agree-
ment, to one count of conspiracy to possess with intent to dis-
tribute cocaine and cocaine base, in violation of 21 U.S.C.
§§ 841(a)(1) and 846. In the plea agreement, Lindsey stipu-
lated that he was responsible for in excess of 1.5 kilograms of
crack cocaine.
The presentence report recommended a sentence within the
Guidelines range of 360 months’ to life imprisonment. The
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report began with a base offense level of 38 under U.S.S.G.
§ 2D1.1 for an offense involving 1.5 or more kilograms of
cocaine base. The probation officer then recommended a two-
level increase because a dangerous weapon was possessed, a
four-level increase because Lindsey led the drug organization,
and a three-level reduction for acceptance of responsibility,
yielding a final offense level of 41. With Lindsey’s criminal
history category of IV, the resulting Guidelines range was 360
months’ to life imprisonment.
At sentencing, after the district court adopted the presen-
tence report, the government made a motion under U.S.S.G.
§ 5K1.1 for a downward departure based on Lindsey’s sub-
stantial assistance to the government. The government stated
that Lindsey "was debriefed [and] provided truthful informa-
tion. He was the leader of the conspiracy and his cooperation,
which occurred roughly halfway through the process, led to,
I think, the conclusion of the conspiracy. Furthermore, he tes-
tified at trial some three to four weeks ago against one of his
co-defendants." Based on this assistance, the government rec-
ommended a downward departure "to offense level 32, crimi-
nal history category IV, which is a range of 168 to 210
months," and it recommended a sentence at "the low end of
that range." The district court granted the government’s
motion, noting that it
[found] that the defendant ha[d] rendered substantial
assistance; that it justifie[d] a departure to level 32,
category IV. The court would sentence at the low
end of that range with the hope that the defendant
will be rehabilitated when he comes out of prison.
The court then sentenced Lindsey to 168 months’ imprison-
ment, entering judgment on April 23, 1999.
Three years later, in April 2002, the government filed a
motion under Federal Rule of Criminal Procedure 35(b) to
reduce further Lindsey’s 168-month sentence based on his
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additional substantial assistance rendered after his sentence
had been imposed. The district court granted the motion and
reduced Lindsey’s sentence to a term of 150 months’ impris-
onment.
In June 2008, because of Amendment 706 to the Sentenc-
ing Guidelines, which retroactively lowered the base offense
levels applicable to crack cocaine offenses under U.S.S.G.
§ 2D1.1 by two levels, Lindsey filed a motion under 18
U.S.C. § 3582(c)(2) for a further reduction of his sentence. In
his motion, Lindsey maintained that after the sentencing
court’s departure under U.S.S.G. § 5K1.1 and its subsequent
reduction of his sentence under Rule 35(b), his 150-month
sentence was based on a sentencing range for offense level
32, not on the range for offense level 41 reflected in his pre-
sentence report. Arguing that Amendment 706 lowered his
sentencing range to the range that corresponds to offense level
30, Lindsey claimed that he was eligible for a revised sentenc-
ing range of 135 to 168 months’ imprisonment. Specifically,
he requested a revised sentence of 120 months’ imprisonment,
reflecting a reduction proportionate to the original sentence
after the district court had granted the government’s Rule 35
motion.
The probation officer submitted a supplemental presentence
report providing that under Amendment 706, Lindsey’s
offense level was lowered from level 41 to level 39. With
Lindsey’s criminal history category of IV, his Guidelines
range for imprisonment, after application of Amendment 706,
remained 360 months’ to life imprisonment. The probation
officer concluded that "[t]here was no change in the guideline
range, therefore, no reduction is recommended."
The district court denied Lindsey’s § 3582(c)(2) motion,
stating:
After giving defendant the benefit of Amendment
706’s two-level reduction, his revised offense level
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(prior to any downward departures for substantial
assistance) is 39 with a criminal history category IV,
corresponding to a guideline range of 360 months to
life imprisonment. Since this defendant’s guideline
range is not lowered by application of the amend-
ment, he is not eligible for a sentence reduction. . . .
The fact that this defendant was originally given a
sentence below the applicable guideline range on
account of the government’s 5K1.1 and Rule 35
motions has no impact on this conclusion . . . .
From the district court’s order of August 22, 2008, denying
Lindsey’s § 3582(c)(2) motion, Lindsey now appeals.
Lonnie DeWayne Robinson
Robinson pleaded guilty, pursuant to a written plea agree-
ment to one count of conspiracy to possess with intent to dis-
tribute crack cocaine near a protected location, in violation of
21 U.S.C. §§ 841(a)(1), 846, and 860. In his plea agreement,
Robinson stipulated that he was responsible for in excess of
1.5 kilograms of crack cocaine.
The presentence report recommended a Guidelines sen-
tence in the range of 360 months’ to life imprisonment. The
report began with a base offense level of 40 under U.S.S.G.
§§ 2D1.1 and 2D1.2 for an offense involving at least 1.5 kilo-
grams of crack cocaine (for which § 2D1.1 assigns a base
level of 38) where the violation occurred near a protected
location (for which § 2D1.2 assigns a base level of 2). The
probation officer recommended a two-level increase for pos-
session of a dangerous weapon and a three-level reduction for
acceptance of responsibility, yielding a final offense level of
39. The probation officer also found Robinson to be a career
offender within the meaning of U.S.S.G. § 4B1.1 on account
of his prior North Carolina state convictions, but the calcula-
tions under § 4B1.1 left his offense level at 39. With Robin-
son’s offense level of 39 and criminal history category of VI,
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the resulting Guidelines range was 360 months’ to life impris-
onment.
At sentencing, the district court began by adopting the pre-
sentence report, finding that it accurately calculated Robin-
son’s Guidelines sentencing range. The government then
made a motion under U.S.S.G. § 5K1.1 for a downward
departure based on Robinson’s substantial assistance to the
government. The government stated:
Mr. Robinson was one of the earliest cooperators
and the second person in this 12-person indictment
to enter a plea. . . . [H]e provided significant infor-
mation about the Greer Heights drug trade and about
Jamaican Harry . . . . Significant information he pro-
vided was actually used to indict Jamaican Harry.
The Government contemplates a possible Rule 35
motion in the future if he testifies against Jamaican
Harry.
In view of this assistance to the government, the government
recommended a sentence of 180 months’ imprisonment. The
government explained:
That’s a level 30, Category VI. The Government
notes that 180 months is a lengthy sentence for
someone to plead to, but Mr. Robinson faces 360 to
life and is a career offender with 11 points for crimes
plus three more points for enhancements, a total of
14 points. His sentence is so significant not because
of this crime but because of his life of crime.
The district court granted the government’s motion for a
downward departure,
find[ing] the appropriate level of departure would be
to level 30, category VI, which is 168 to 210 range.
The Court accept[ed] the recommendation of the
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Government as to the appropriate extent of the
departure. The Court [found] there [was] substantial
assistance meriting that departure. The Court recog-
nize[d] the Defendant’s change of heart and his sin-
cerity.
The court sentenced Robinson to 180 months’ imprisonment,
entering judgment on November 4, 1996.
In March 2008, because of Amendment 706 to the Sentenc-
ing Guidelines, which retroactively lowered the base offense
levels applicable to crack cocaine offenses under U.S.S.G.
§ 2D1.1 by two levels, Robinson pro se filed a motion under
18 U.S.C. § 3582(c)(2) for a further reduction of his sentence.
Counsel was appointed for him, and a formal brief was filed
in June 2008. Robinson contended that even though the
offense level calculated in his presentence report was 39, after
the district court departed downward pursuant to U.S.S.G.
§ 5K1.1, his 180-month sentence was based on a sentencing
range for offense level 30 and criminal history category VI.
Claiming that Amendment 706 lowered the offense level from
30 to 28, Robinson argued that he was eligible for a reduced
sentence in the corresponding range of 140 to 175 months’
imprisonment. He specifically requested a revised sentence of
150 months’ imprisonment, reflecting a reduction that was
proportionate to his original sentence.
The probation officer submitted a supplemental presentence
report that provided that under Amendment 706, Robinson’s
revised offense level was lowered from level 39 to level 37.
With Robinson’s criminal history category of VI, the revised
Guidelines range for imprisonment remained 360 months’ to
life imprisonment. The probation officer concluded that there
should be "no reduction" in Robinson’s sentence by reason of
Amendment 706.
The district court denied Robinson’s § 3582(c)(2) motion,
applying the same reasoning that it had applied in denying
Lindsey’s motion. The court stated:
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After giving defendant the benefit of Amendment
706’s two-level reduction, his revised offense level
(prior to any downward departures for substantial
assistance) is 37 with a criminal history category VI,
corresponding to a guideline range of 360 months’ to
life imprisonment. Since this defendant’s guideline
range [was] not lowered by application of the
amendment, he is not eligible for a sentence reduc-
tion. . . . The fact that this defendant was originally
given a sentence below the applicable guideline
range on account of the government’s 5K1.1 motion
has no impact on this conclusion . . . .
From the district court’s order of August 22, 2008, denying
Robinson’s § 3582(c)(2) motion, Robinson now appeals. In
his brief on appeal, he raised for the first time the objection
that the judge who denied his § 3582(c)(2) motion was also
the Assistant United States Attorney handling his sentencing
in 1996.
II. Lindsey
Section 3582(c)(2) authorizes a district court to modify a
defendant’s term of imprisonment "based on a sentencing
range that has subsequently been lowered by the Sentencing
Commission." 18 U.S.C. § 3582(c)(2). It also provides that
any such reduction of a sentence must be "consistent with
applicable policy statements issued by the Sentencing Com-
mission." Id.
The applicable policy statement issued by the Sentencing
Commission provides that a sentence reduction under
§ 3582(c)(2) "is not authorized" if the amendment to the Sen-
tencing Guidelines "does not have the effect of lowering the
defendant’s applicable guideline range." U.S.S.G.
§ 1B1.10(a)(2)(B). The Sentencing Guidelines also provide
specific instructions for a court when "determining whether,
and to what extent, a reduction in the defendant’s term of
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imprisonment . . . is warranted." Id. § 1B1.10(b)(1). They
instruct that "the court shall determine the amended guideline
range that would have been applicable to the defendant if the
amendment[ ] . . . had been in effect at the time the defendant
was sentenced[,] . . . substitut[ing] only the amendment[ ] . . .
for the corresponding guideline provision[ ] that [was]
applied" and "leav[ing] all other guideline application deci-
sions unaffected." Id.
Amendment 706, which was made effective November 1,
2007, and retroactive effective March 3, 2008, amended
§ 2D1.1 of the Sentencing Guidelines by reducing the offense
levels associated with crack cocaine quantities by two levels.
See U.S.S.G. supp. to app. C, amend. 706 (Nov. 1, 2007); id.
amend. 713 (May 1, 2008); U.S.S.G. § 2D1.1; U.S.S.G.
§ 1B1.10(c). Amendment 706, by retroactively lowering a
sentencing range, enables a defendant to seek a reduced sen-
tence through a motion filed under 18 U.S.C. § 3582(c)(2). To
be the basis of a reduction under § 3582(c)(2), however,
Amendment 706 must have "the effect of lowering the
defendant’s applicable guideline range." U.S.S.G.
§ 1B1.10(a)(2)(B) (emphasis added).
Lindsey contends that even though his sentencing range
was 360 months’ to life imprisonment, corresponding to
offense level 41, after the district court departed downward
under U.S.S.G. § 5K1.1, his sentence was "based on a sen-
tencing range" of 168 to 210 months, corresponding to
offense level 32. He argues that Amendment 706 should
therefore be applied to reduce his offense level from level 32
to level 30 with a corresponding sentencing range of 135 to
165 months’ imprisonment. And because the district court
sentenced him at the low end of the range corresponding to
level 32, his sentence should be at the low end of the revised
range, or 135 months’ imprisonment.* Lindsey thus argues
*In the district court, because the sentencing court had reduced Lind-
sey’s sentence a second time to 150 months’ imprisonment on the govern-
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that "sentencing range" as used in § 3582(c)(2) refers to the
range that the district court may consult in fashioning its
departure, based on substantial assistance under U.S.S.G.
§ 5K1.1, from the otherwise applicable Guidelines range.
While Lindsey acknowledges that Amendment 706 did not
lower his pre-departure sentencing range of 360 months’ to
life imprisonment, he contends that he was not sentenced
based on this pre-departure range because his sentence was
the result of a downward departure under U.S.S.G. § 5K1.1.
He argues that his sentence was the product of a nine-level
departure from the applicable pre-departure offense level and
that his final sentence was within the sentencing range corre-
sponding to offense level 32. He contends that when Amend-
ment 706 is applied to reduce his original offense level from
41 to 39 and his nine-level departure is applied, his ultimate
offense level should become 30, yielding a sentencing range
of 135 to 168 months’ imprisonment. A sentence at the low
end of that range would therefore be 135 months’ imprison-
ment.
Even though Lindsey’s argument is logically sound, the
calculation he espouses is not the one prescribed by 18 U.S.C.
§ 3582(c)(2) and U.S.S.G. § 1B1.10. Lindsey’s analysis
focuses on offense levels, whereas the calculations mandated
by § 1B1.10 focus on sentencing ranges, and, in this case, that
difference in focus makes a difference in outcome.
Section 1B1.10 of the Sentencing Guidelines, issued by the
Sentencing Commission to implement § 3582(c)(2), states
that a reduction under § 3582(c)(2) is "not authorized" if
ment’s Rule 35(b) motion, Lindsey argued that his sentence should
correspondingly be reduced to 120 months’ imprisonment, relying on
U.S.S.G. § 1B1.10(b)(2)(B). On appeal, however, he has modified his
request, asking for only a 135-month sentence, based on a sentence at the
low end of the range corresponding to offense level 30, because even
under this sentence, he is currently eligible for immediate release from
prison.
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Amendment 706 "does not have the effect of lowering the
defendant’s applicable guideline range." U.S.S.G.
§ 1B1.10(a)(2)(B) (emphasis added). To determine whether
Amendment 706 lowers the "applicable guideline range,"
§ 1B1.10(b)(1) provides the specific calculation that we must
make. It provides that we "substitute [Amendment 706] for
the corresponding guideline provisions that were applied
when [Lindsey] was sentenced" and that we "leave all other
guideline application decisions unaffected." Id.
§ 1B1.10(b)(1).
To apply Amendment 706 in this manner, we return to
Lindsey’s original sentencing. The district court began in the
original sentencing with offense level 38 derived from
U.S.S.G. § 2D1.1 (the guideline amended by Amendment
706) and then applied a two-level firearms enhancement, a
four-level leadership-role enhancement, and a three-level
reduction for acceptance of responsibility, ending with a final
offense level of 41. Because the initial offense level of 38
(derived from U.S.S.G. § 2D1.1) was amended by Amend-
ment 706, reducing it by two levels, we "substitute" the
amended offense level for "the corresponding guideline provi-
sion[ ] that [was] applied when [Lindsey] was sentenced."
U.S.S.G. § 1B1.10(b)(1). Thus, instead of beginning with
offense level 38, we begin with offense level 36 and then
"leave all other guideline application decisions unaffected."
Id. Following those instructions, we begin with amended
offense level 36 and apply a two-level firearms enhancement,
a four-level leadership-role enhancement, and a three-level
reduction for acceptance of responsibility, ending with a
revised offense level of 39 and an "amended guideline range"
of 360 months’ to life imprisonment. Because this "amended
guideline range" is the same as the original Guidelines range,
Amendment 706 does not "have the effect of lowering [Lind-
sey’s] applicable guideline range" and therefore no reduction
of Lindsey’s sentence is authorized by 18 U.S.C.
§ 3582(c)(2). Id. § 1B1.10(a)(2)(B).
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Under this specified method of applying Amendment 706
to determine whether a reduction under § 3582(c)(2) "is war-
ranted," id. § 1B1.10(b)(1), the Sentencing Guidelines require
the recalculation of Lindsey’s "applicable guideline range" as
if the amendment were in place from the beginning. Because
this recalculation leads to the same "applicable guideline
range," no modification of Lindsey’s sentence is authorized
by § 3582(c)(2). A modification is authorized only if, after
performing this specific substitution, Lindsey’s "applicable
guideline range" is lowered. See U.S.S.G. § 1B1.10(a)(2)(B).
Lindsey seeks to avoid the inescapable outcome of this
analysis by directing our attention to the manner in which the
district court applied U.S.S.G. § 5K1.1 to depart downward
nine offense levels. There are, however, several flaws in his
approach.
First, Lindsey’s approach bypasses the threshold determi-
nation required by U.S.S.G. § 1B1.10(b)(1) to determine if a
reduction "is warranted" at all. That determination has as its
object whether the amendment lowered the "guideline range
applicable to [Lindsey]." Id. § 1B1.10(a)(1) (emphasis added).
Lindsey applies his calculation based on a downward depar-
ture and offense levels, without first determining whether the
sentencing range was lowered by Amendment 706. Yet, had
he made that threshold calculation in the manner specified by
§ 1B1.10(b)(1), he would have faced the conclusion that a
reduction is "not authorized," U.S.S.G. § 1B1.10(a)(2), and he
would not have been able conceptually to perform some other
calculation to suggest that Amendment 706 somehow affected
his sentence.
Second, if the focus of Lindsey’s calculation is how to
apply a downward departure in a later reduction under
§ 3582(c)(2), then his calculation is still flawed because he
overlooks the limitations imposed by § 1B1.10(b)(2). That
provision directs that only after it is determined that a reduc-
tion under § 3582(c)(2) is warranted via the calculation in
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§ 1B1.10(b)(1), a downward departure may be made from the
amended sentence. Thus, if the sentencing range is lowered,
then, and only then, may we apply a comparable downward
departure. And even then the departure is reduced only pro-
portionately. If, for example, the original departure repre-
sented a 20% downward departure from the Guidelines
sentence, a 20% downward departure could be given from the
amended Guidelines sentence. See U.S.S.G. § 1B1.10(b)(2)
cmt. n.3. Of course, if no reduction is warranted as deter-
mined under § 1B1.10(b)(1) because his sentencing range is
not lowered, any calculation of his downward departure
becomes irrelevant.
Third, a downward departure under U.S.S.G. § 5K1.1 is an
authorized departure "from the guidelines" based on the
defendant’s substantial assistance. It does not provide a
Guidelines range of its own but rather a departure from the
Guidelines range, made after the applicable Guidelines range
has been calculated. See U.S.S.G. § 1B1.10(b)(2)(B) (explain-
ing how a departure is applied to an amended Guidelines
range after the threshold determination is made that a
§ 3582(c)(2) reduction is warranted). As the district court cor-
rectly noted:
This methodology is reflected in [the] Sentencing
Guidelines manual itself (which treats downward
departures as Part K of Chapter 5, after the applica-
ble guideline range is tabulated in Part A) and also
the Statement of Reasons given by the court at sen-
tencing (which requires a pre-departure determina-
tion of the defendant’s applicable guideline range on
the record prior to the court’s final sentencing deter-
mination, which would be reflective of any departure
or variances).
United States v. Lindsey, No. 3:98-CR-50-1-FDW (W.D.N.C.
Aug. 22, 2008).
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Finally, the district court’s downward departure was not
determined by any applicable Guidelines range. Section
5K1.1 of the Sentencing Guidelines gives the sentencing
judge discretion to award a defendant an "appropriate reduc-
tion," consistent with the non-exclusive list of factors for con-
sideration by the judge, all related to the nature and quality of
a defendant’s assistance. See U.S.S.G. § 5K1.1; Hood, ___
F.3d at ___, slip op. at 15-16; United States v. Pearce, 191
F.3d 488, 492 (4th Cir. 1999) (holding that under § 5K1.1, a
sentencing court may only consider the "nature, extent, and
significance" of the defendant’s assistance). But the Sentenc-
ing Commission has not adopted a Guidelines range to apply
in departing downward under § 5K1.1. Rather, the district
court was exercising its discretion when it sought to quantify
its downward departure by referring to level 32 and category
IV. It could just as well have used a percentage-based depar-
ture or stated a flat number of months to depart based on
Lindsey’s substantial assistance. Accordingly, the district
court’s reference to offense levels in making its discretionary
decision of how far to depart did not amount to the applica-
tion of a "sentencing range" authorized and made applicable
by the Sentencing Guidelines and therefore was of no legal
significance to the analysis under § 3582(c)(2). See United
States v. Hood, ___ F.3d ___, ___, No. 08-7019, slip op. at
16-17 (4th Cir. Feb. 20, 2009).
Lindsey argues that United States v. Goines, 357 F.3d 469,
473-80 (4th cir. 2004), entitled him to relief. In Goines, we
considered whether a clarifying amendment to the Sentencing
Guidelines lowered a sentencing range as required by
§ 3582(c)(2). In holding that "a defendant may rely on a clari-
fying . . . amendment to support a § 3582(c)(2) motion, so
long as the amendment has been designated for retroactive
application and would result in application of a sentencing
range lower than the range applied at the original sentencing
proceeding," id. at 480, we stated that "sentencing range" is
"the range actually applied by the district court," as distinct
from the range "prescribed by the sentencing guidelines." Id.
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at 474, 475 (emphasis added). Lindsey thus argues that
Goines requires us to determine whether Amendment 706
lowers not the range "prescribed by the guidelines," but rather
the range "applied by the district court," which here was a
post-departure sentencing range "derived from offense level
32."
Lindsey’s argument, however, is neither advanced nor sup-
ported by Goines. In Goines, the issue was whether a court,
in determining whether an amendment lowered a sentencing
range, should consider the Guidelines range that should have
been applied to the defendant or the Guidelines range actually
applied by the district court. In order to permit consideration
of the clarifying amendment in connection with the sentence
actually imposed, we held that we had to consider the Guide-
lines range actually applied by the district court that the clari-
fying amendment changed retroactively. Unlike the
sentencing court in Goines, however, the range "actually
applied by the district court" in this case was in fact the range
"prescribed by the Guidelines" under § 2D1.1. Thus, distin-
guishing between the "prescribed" range and the "applied"
range does not contribute to or change the analysis we apply
to Lindsey. When we apply Amendment 706—applied
according to the formula in U.S.S.G. § 1B1.10(b)—to the
range actually applied by the district court, it does not "result
in application of a sentencing range lower than the range
applied at the original sentencing proceeding," id. at 480, as
required by § 3582(c)(2) and Goines. Thus, Goines does not
entitle Lindsey to relief. In short, even though Amendment
706 reduced Lindsey’s offense level to 39, it did not lower his
Guidelines sentencing range. The "applicable guideline
range" was and remains 360 months’ to life imprisonment.
And because Amendment 706 "does not have the effect of
lowering [Lindsey’s] applicable guideline range," Lindsey is
not eligible for relief under § 3582(c)(2).
III. Robinson
Robinson’s § 3582(c)(2) motion was denied by District
Judge Frank Whitney, who also, it was later learned, partici-
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pated in Robinson’s case in 1996 (12 years earlier) as an
Assistant United States Attorney. Counsel for Robinson stated
that after filing this appeal, he received transcripts from Rob-
inson’s 1996 sentencing hearing and, for the first time,
learned that Judge Whitney was the Assistant United States
Attorney involved in the case at Robinson’s sentencing hear-
ing. Robinson now contends that we must vacate Judge Whit-
ney’s order denying his § 3582(c)(2) motion and remand,
even though the judge’s violation of 28 U.S.C. § 455(b)(3)
was unwitting. The government agrees.
Section 455 provides in relevant part that a judge "shall dis-
qualify himself in any proceeding . . . [w]here he has served
in governmental employment and in such capacity partici-
pated as counsel, adviser or material witness concerning the
proceeding or expressed an opinion concerning the merits of
the particular case in controversy." 28 U.S.C. § 455(a), (b)(3).
Although there is no evidence to suggest that Judge Whitney
recalled his participation in Robinson’s original sentencing
proceeding, nor did anyone bring it to his attention, his partic-
ipation at that time is nonetheless undisputed. Accordingly, in
light of 28 U.S.C. § 455(b)(3), we vacate the order denying
Robinson’s § 3582(c)(2) motion and remand for reconsidera-
tion before a different district judge in accordance with this
opinion.
IV
Finally, both Lindsey and Robinson argue that this court’s
practice of placing appeals from the orders denying relief
under § 3582(c)(2) on the informal briefing calendar under
Local Rule 34(b) results in a "delay or denial of relief" that
presents "serious constitutional problems." Under the reason-
ing set forth in Hood, ___ F.3d at ___, slip op. at 19-21, we
conclude that no due process violation occurred.
The dockets in Lindsey’s and Robinson’s cases show that
they filed their notices of appeal on August 27, 2008. By
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December 2, 2008, this court had ordered and received formal
briefs and heard oral argument, less than four months after the
defendants first filed their notices of appeal. We cannot con-
clude that "these processes denied [the defendants] due pro-
cess." Hood, __ F.3d at __, slip op. at 21 (holding that a six-
month period between a notice of appeal and oral argument
did not violate the defendant’s due process rights).
In sum, the order denying Lindsey’s § 3582(c)(2) motion is
affirmed, and the order denying Robinson’s § 3582(c)(2)
motion is vacated and remanded for proceedings before a dif-
ferent district judge in accordance with this opinion.
IT IS SO ORDERED.
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