United States v. Johnson , 80 F. App'x 291 ( 2003 )

Rehearing granted, February 4, 2004
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellant,
v.  No. 02-4413
DOUGLAS L. JOHNSON,
Defendant-Appellee.

Appeal from the United States District Court
for the District of South Carolina, at Rock Hill.
Matthew J. Perry, Jr., Senior District Judge.
(CR-01-677)
Submitted: May 19, 2003
Decided: November 4, 2003
Before WILKINSON and TRAXLER, Circuit Judges, and
HAMILTON, Senior Circuit Judge.
Vacated and remanded by unpublished per curiam opinion.
COUNSEL
J. Strom Thurmond, Jr., United States Attorney, Jane B. Taylor,
Assistant United States Attorney, Columbia, South Carolina, for
Appellant. Louis H. Lang, CALLISON, TIGHE & ROBINSON,
L.L.P., Columbia, South Carolina, for Appellee.
2 UNITED STATES v. JOHNSON
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
The United States appeals the eighty-four-month sentence imposed
upon Douglas Johnson pursuant to his conviction for possession with
intent to distribute in excess of fifty grams of crack cocaine. We
vacate and remand.
At sentencing, the district court granted the United States’ motion
for downward departure based on Johnson’s substantial assistance to
the government. The United States contends that the district court
departed downward from Johnson’s original guideline range of 135-
168 months. The United States further argues that the court instead
should have departed downward from 240 months, the minimum sen-
tence to which Johnson was statutorily subject and the sentence that
became Johnson’s guideline sentence pursuant to U.S. Sentencing
Guidelines Manual § 5G1.1(b) (2002).
Our review of the sentencing transcript reveals that, although the
district court initially determined that it would depart downward from
the original guideline range, the court subsequently corrected itself
and stated on at least two occasions that its starting point for the
departure was 240 months. However, under the procedure endorsed
in United States v. Pillow, 191 F.3d 403, 406-07 (4th Cir. 1999), the
departure from 240 months to eighty-four months was unwarranted.
Pillow specifically stated that when the district court departs below a
statutory minimum sentence that becomes the guideline sentence pur-
suant to USSG § 5G1.1(b), the defendant remains subject to a statu-
tory minimum sentence: the lowest sentence possible under the
original guideline range. 191 F.3d at 407. In the subject case, then,
Johnson should have received a sentence of not less than 135 months.
We accordingly vacate the sentence and remand for resentencing in
accordance with Pillow.
UNITED STATES v. JOHNSON 3
We dispense with oral argument because the facts and legal conten-
tions are adequately presented in the materials before the court and
argument would not aid the decisional process.
VACATED AND REMANDED