UNITED STATES of America, Appellant, v. Hamedah A. HASAN, also known as Stephanie Lomax, Appellee, 205 F.3d 1072

FAGG, Circuit Judge. After Hamedah A. Hasan was sentenced for conspiracy to distribute cocaine base in 1993, the drug quantity table in the U.S. Sentencing Guidelines (U.S.S.G.) was amended in a way that reduced Hasan’s base offense level and thus lowered her sentence from life imprisonment to 324 to 405 months. Because the Sentencing Commission made the amendment retroactive, Hasan filed a motion to lower her sentence under 18 U.S.C. § 3582(c)(2), then asked the district court to depart below 324 months under U.S.S.G. § 5K2.0 and its statutory equivalent, 18 U.S.C. § 3553(b), based on her extraordinary prison record. The district court concluded § 3582(

c) authorized consideration of Hasan’s departure motion. Finding Ha-san’s efforts at rehabilitation in prison were indeed extraordinary, the district court departed from the Guidelines range and resentenced Hasan to 144 months imprisonment. The Government appeals the district court’s resentencing order arguing the court lacked authority to depart from the resentencing range of 324 to 405 months. We disagree and affirm Hasan’s new sentence. When a defendant has been sentenced to a prison term based on a sentencing range that the Sentencing Commission later lowers, a court “may reduce the term of imprisonment, after considering the factors set forth in [18 U.S.C. § ] 3553(

a) to the extent that they are applicable, if such a reduction is consistent with applicable policy statements issued by the Sentencing Commission.” 18 U.S.C. § 3582(c)(2).

Section 3553(

a) states that in deciding the sentence, the court shall consider, among other things, “any pertinent policy statement issued by the Sentencing Commission ... that is in effect on the date the defendant is sentenced.” Id. § 3553(a)(5). Do these statutes permit consideration of a departure from the applicable resen-tencing range under the policy statement found in U.S.S.G. § 5K2.0 and its statutory counterpart, 18 U.S.C. § 3553(b), for “mitigating circumstance[s] of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission”?

Another court has said “no.” In that court’s view, the policy statement referred to by the statutes includes only U.S.S.G. § 1B1.10, the guideline implementing § 3582(c)(2), and not other guidelines like § 5K2.0. See United States v. Jordan, 162 F.3d 1, 3 (1st Cir.1998). The court also reasoned that because the § 5K2.0 argument was unavailable to the defendant at the time of original sentencing, the argument could not be considered at resentenc-ing. See id. at 5. Although this is not an unreasonable

interpretation of the statutes, we believe the statutes’ referral can also be reasonably viewed as including U.S.S.G. § 5K2.0. Eighth Circuit case law lends support to this view. A § 3582(c)(2) motion requires a district court to make two distinct decisions. See United States v. Mihm, 134 F.3d 1353, 1355 (8th Cir.1998). First, the district court must decide “ ‘what sentence it would have imposed had the new sentencing range been the range at the time of the original sentencing.’ ” Id. (quoting United States v. Wyatt, 115 F.3d 606, 609 (8th Cir.1997)).

This is an “exclusively Guidelines-based determination” mandated by U.S.S.G. § 1B1.10. Id. Second, a district court must analyze the initial Guidelines-based decision in light of the general sentencing considerations contained in 18 U.S.C. § 3553(

a) and “all relevant statutory sentencing factors.” Id. (emphasis in original). This second decision “is based upon the district court’s sentencing discretion at the time it rules on the § 3582(e)(2) motion." Id. (emphasis in original). We have held the general sentencing considerations at the second stage include a § 3553(

e) departure below both the resentencing range and the statutory minimum sentence for a defendant’s substantial post-original-sentencing assistance, even though no § 3553(

e) departure was sought at the original sentencing. See United States v. Williams, 103 F.3d 57, 58 (8th Cir.1996) (per curiam). The general sentencing considerations also include the § 3553(f) “safety valve” departure below a statutory minimum sentence, even when the safety valve was not yet enacted at the time of the defendant’s initial sentencing. See Mihm, 134 F.3d at 1355. This is so because “the grant of § 3582(c)(2) relief to [a defendant] is a distinct exercise, one that results in a sentence ‘imposed [at the time of the resentencing.]”’ Id.

Thus, contrary to the Jordan court’s view, we have held that when faced with a § 3582(c)(2) resentencing, a district court may consider grounds for departure unavailable to the defendant at the original sentencing. Further, the court in Jordan relied on the decision in United States v. Stockdale, 129 F.3d 1066 (9th Cir.1997), cert. denied, 525 U.S. 950, 119 S.Ct. 377, 142 L.Ed.2d 312 (1998), a case we recognized as directly contrary to our decision in Mihm, 134 F.3d at 1355-56. Because we have read § 3582(c)(2) and § 3553(

a) as permitting consideration of departures under § 3553(

e) and § 3553(f), we believe § 3582(c)(2) and § 3553(

a) can also reasonably be read to permit consideration of departures under § 3553(b). Although this may be debatable, because they are departures of different sorts, the rule of lenity requires us to resolve any reasonable doubt about the statutes’

interpretation in a defendant’s favor. See United States v. Warren, 149 F.3d 825,-828 (8th Cir.1998). We thus conclude a district court may consider a motion for a departure under § 5K2.0 or. § 3553(

b) at a § 3582(c)(2) resentencing. The district court in this case used the proper analysis at Hasan’s § 3582(c)(2) resentencing. First, the district court stated that if the resentencing range had applied at Hasan’s initial sentencing, he would have sentenced Hasan to 324 months, the lowest end of the new range. Second, the district court properly looked to all the relevant statutory factors in § 3553(

a) as they stood at the time of the resentencing. The district court noted Hasan’s extensive efforts to rehabilitate herself in prison when considering her history and characteristics, see 18 U.S.C. § 3553(a)(1), the need to protect the public from her further crimes, see id. § 3553(a)(2)(C), and her need for educational or vocational training, see id. § 3553(a)(2)(D). Under § 3553(a)(5), the district court also considered “pertinent policy statements] issued by the Sentencing Commission,” including a departure under § .5K2.0 or its statutory twin, § 3553(b).

The Government argues the district court improperly relied on post-original-sentencing facts. Again, we disagree. In the § 3582(c)(2) context, we have held a district court must evaluate the general sentencing considerations in § 3553 and exercise its “sentencing discretion at the time it rules on the § 3582(c)(2) motion.” Mihm, 134 F.3d at 1355 (emphasis in original). Thus, we have held that when considering a § 3582(c)(2) motion, a district court may weigh a defendant’s escape after his original sentencing when considering the defendant’s nature and characteristics under § 3553(a). See Wyatt, 115 F.3d at 610.

We have also held a district court properly considered a defendant’s post-original-sentencing assistance in deciding whether to depart under § 3553(

e) at a § 3582(c)(2) resentencing. See Williams, 103 F.3d at 58. The Government relies on United States v. Sims, 174 F.3d 911, 913 (8th Cir.1999), where we held rehabilitative conduct after original sentencing could not be considered at the defendant’s resen-tencing following a successful § 2255 motion. Sims did not involve a § 3582(c)(2) motion, however, and the statutory language makes the difference.

In sum, we conclude that when presented with Hasan’s § 3582(c)(2) resentencing motion, the district court properly considered Hasan’s motion to depart from the Guidelines range based on Hasan’s extraordinary rehabilitation in prison. Although the Government does not argue Hasan’s rehabilitative efforts are not extraordinary, we agree with the district court that they are. We thus affirm the district court’s resentencing order.