UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4988
UNITED STATES OF AMERICA,
Plaintiff – Appellant,
v.
JOHN S. ANDERSON,
Defendant – Appellee.
Appeal from the United States District Court for the Northern
District of West Virginia, at Elkins. John Preston Bailey,
Chief District Judge. (2:07-cr-00047-REM-1)
Submitted: March 18, 2009 Decided: April 23, 2009
Before WILKINSON, TRAXLER, and KING, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
Sharon L. Potter, United States Attorney, Shawn Angus Morgan,
Assistant United States Attorney, Clarksburg, West Virginia, for
Appellant. Thomas G. Dyer, DYER LAW FIRM, Clarksburg, West
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
John S. Anderson pled guilty pursuant to a plea
agreement to manufacturing 100 or more marijuana plants, in
violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B) (2006), and
was sentenced to a five-year probationary sentence. The
Government appealed, asserting that although Anderson met the
requirements for application of the safety-valve under 18 U.S.C.
§ 3553(f) (2006) and, accordingly, the district court was
justified in sentencing him below the five-year statutory
mandatory minimum, the district court lacked authority to impose
a probationary sentence under 18 U.S.C. § 3561(a)(1) (2006). We
hold that the district court was prohibited from sentencing
Anderson to a probationary sentence.
Section 841(b)(1)(B) carries a maximum penalty of
forty years in prison and is classified as a Class B felony.
See 18 U.S.C. § 3559(a)(2) (2006) (classifying an offense with a
twenty-five year or more maximum penalty as a Class B felony).
Under the plain language of 18 U.S.C. § 3561(a)(1), an
individual convicted of a Class B felony may not be sentenced to
a term of probation. 18 U.S.C. § 3561(a)(1) (2006) (“A
defendant who has been found guilty of an offense may be
sentenced to a term of probation unless . . . the offense is a
Class A or Class B felony and the defendant is an individual.”).
2
Moreover, § 841(b)(1)(B) explicitly states that
“[n]otwithstanding any other provision of law,” a district court
shall not place on probation any person sentenced under that
subparagraph. See 21 U.S.C. § 841(b)(1)(B). Accordingly, even
though the district court was justified in sentencing Anderson
below the statutory five-year mandatory minimum based on his
safety-valve qualification, § 841(b)(1)(B)’s proscription
against probation acted as a floor to any possible sentence.
See United States v. Dickerson, 381 F.3d 251, 258-60 (3d Cir.
2004) (holding that probationary sentences are barred where a
defendant is convicted of a Class B felony notwithstanding
eligibility for the safety valve); United States v. Green, 105
F.3d 1321, 1323-24 (9th Cir. 1997) (“We therefore hold that the
safety valve permits the court to disregard the mandatory 10-
year term of imprisonment contained in § 841, but that probation
is prohibited as a sentencing option under the remaining
provisions of § 841 and by the Guidelines themselves.”).
Despite the foregoing, Anderson asserts that § 3553(f)
trumps the statutory prohibition on probationary sentences under
§ 841(b)(1)(B). In support of this argument, Anderson relies on
this court’s holding in United States v. Daiagi, 892 F.2d 31
(4th Cir. 1989). In Daiagi, this court held that a probationary
sentence for a Class B felony (i.e., a 21 U.S.C. § 846
3
conviction) is authorized upon the Government’s substantial
assistance motion under 18 U.S.C. § 3553(e) (2006). Id. at 33.
Daiagi is distinguishable because the court limited
its holding to situations where the Government has made a
substantial assistance motion. Daiagi, 892 F.2d at 33. Because
the Government did not make a substantial assistance motion in
this case but actually opposed the imposition of a probationary
sentence, Daiagi’s narrow exception to § 3561(a)(1) is
inapplicable. Moreover, because the version of § 846 at issue
in Daiagi did not explicitly incorporate § 841(b)(1)(B)’s
penalties as its own, there was no additional proscription
against probation for such an offense.
Based on the foregoing, we affirm Anderson’s
conviction but vacate and remand the matter for resentencing
consistent with this opinion. We dispense with oral argument
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
4