FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 09-50291
Plaintiff-Appellee, D.C. No.
v. 2:06-cr-00369-
LEISEA MICHELLE WIPF, GAF-1
Defendant-Appellant.
OPINION
Appeal from the United States District Court
for the Central District of California
Gary A. Feess, District Judge, Presiding
Submitted July 12, 2010*
Pasadena, California
Filed August 31, 2010
Before: Jerome Farris, Cynthia Holcomb Hall and
Barry G. Silverman, Circuit Judges.
Opinion by Judge Hall
*This panel unanimously agrees that this case is appropriate for submis-
sion without oral argument pursuant to Fed. R. App. P. 34(a)(2).
13111
UNITED STATES v. WIPF 13113
COUNSEL
Kathryn A. Young, Deputy Federal Public Defender, Los
Angeles, California, for the defendant-appellant.
Judson O. Littleton, United States Department of Justice,
Washington, D.C., for the plaintiff-appellee.
13114 UNITED STATES v. WIPF
OPINION
HALL, Circuit Judge:
Appellant Leisea Michelle Wipf pled guilty to one count of
possession with intent to distribute more than 100 grams of
PCP, in violation of 21 U.S.C. §§ 841(a)(1) & (b)(1)(A). The
district court imposed the statutory mandatory minimum sen-
tence of 120 months, five years of supervised release, and a
$100 special assessment. Appellant timely appealed. This
court has jurisdiction pursuant to 28 U.S.C. § 1291 and 18
U.S.C. § 3742(a). We affirm.1
I.
At sentencing, the district court calculated a Guidelines
range of 78 to 97 months, but observed that Appellant’s crime
was subject to a ten-year mandatory minimum. Appellant
argued that the district court had discretion under 18 U.S.C.
§ 3553(a) to impose a sentence below the mandatory mini-
mum, and that it should do so given her particular circum-
stances. She contended that there was a conflict between
§ 3553(a)—which requires district courts to impose the lowest
sentence possible to achieve Congress’s sentencing goals—
and the ten-year mandatory statutory minimum. Although the
district court noted that “if it were a matter within my discre-
tion, I would impose a sentence below 120 months,” it
rejected Appellant’s contention that it had discretion to depart
below the statutory minimum.
II.
We review the district court’s refusal to depart below the
statutory minimum sentence de novo, because that decision
involved a question of law and not the exercise of discretion.
1
We address several of Appellant’s arguments in a separate memoran-
dum disposition, concurrently filed under seal.
UNITED STATES v. WIPF 13115
United States v. Jackson, 577 F.3d 1032, 1033 (9th Cir.
2009).
III.
[1] We have never addressed explicitly the question of
whether 18 U.S.C. § 3553(a) permits a district court to impose
a sentence below a mandatory statutory minimum. Every
other circuit to have done so has held that § 3553(a) does not
confer such authority. See United States v. Samas, 561 F.3d
108, 111 (2d Cir. 2009); United States v. Castaing-Sosa, 530
F.3d 1358, 1361-62 (11th Cir. 2008); United States v. A.B.,
529 F.3d 1275, 1280-83 (10th Cir. 2008); United States v.
Franklin, 499 F.3d 578, 585-86 (6th Cir. 2007); United States
v. Duncan, 479 F.3d 924, 930 (7th Cir. 2007); United States
v. Williams, 474 F.3d 1130, 1131-32 (8th Cir. 2007); United
States v. Kellum, 356 F.3d 285, 289 (3d Cir. 2004); United
States v. Ahlers, 305 F.3d 54, 61-62 (1st Cir. 2002). We reach
the same conclusion.
[2] Under 21 U.S.C. § 841(b)(1)(A)(iv), a defendant who
possesses with intent to distribute 100 grams or more of PCP
“shall be sentenced to a term of imprisonment which may not
be less than ten years.” We have previously held that this
minimum sentence is mandatory. United States v. Haynes,
216 F.3d 789, 799 (9th Cir. 2000). “The statutory minimum
sentence must be imposed unless the defendant is a first-time
offender who qualifies for the ‘safety valve’ under the guide-
line section 5C1.2, or the government moves for a downward
departure based on the defendant’s ‘substantial assistance’
under guideline section 5K1.1 or 18 U.S.C. § 3553(e) or Rule
35(b) of the Federal Rules of Criminal Procedure.” Id.
Because the safety valve was unavailable due to Appellant’s
prior drug conviction, and the government did not file a
motion for substantial assistance, the district court imposed
the mandatory minimum sentence.
13116 UNITED STATES v. WIPF
Appellant argues that 18 U.S.C. § 3553(a) independently
permits the district court to avoid the mandatory statutory
minimum, because the statute requires a district court to “im-
pose a sentence sufficient, but not greater than necessary” and
to consider in all cases, inter alia, the specific circumstances
of the offense, defendant’s individual history, the need to
deter criminal conduct, and the public safety.2 She also argues
2
Section § 3553 (a) provides, in relevant part:
Factors to be considered in imposing a sentence.—The court
shall impose a sentence sufficient, but not greater than necessary,
to comply with the purposes set forth in paragraph (2) of this sub-
section. The court, in determining the particular sentence to be
imposed, shall consider—
(1) the nature and circumstances of the offense and the history
and characteristics of the defendant;
(2) the need for the sentence imposed—
(A) to reflect the seriousness of the offense, to promote respect
for the law, and to provide just punishment for the offense;
(B) to afford adequate deterrence to criminal conduct;
(C) to protect the public from further crimes of the defendant;
and
(D) to provide the defendant with needed educational or voca-
tional training, medical care, or other correctional treatment in
the most effective manner;
(3) the kinds of sentences available;
(4) the kinds of sentence and the sentencing range established for
—
(A) the applicable category of offense committed by the appli-
cable category of defendant as set forth in the guidelines . . .
(5) any pertinent policy statement [issued by the Sentencing
Commission] . . .
(6) the need to avoid unwarranted sentence disparities among
defendants with similar records who have been found guilty of
similar conduct; and
(7) the need to provide restitution to any victims of the offense.
18 U.S.C.A. § 3553.
UNITED STATES v. WIPF 13117
that the Supreme Court decision in Kimbrough v. United
States, 552 U.S. 85 (2007), allows a sentencing court to reject
a mandatory minimum sentence based upon the “overarching”
parsimony principle enshrined in § 3553(a). These arguments
are without merit.
[3] Although we have held that a district court must con-
sider the § 3553(a) factors in all cases, see, e.g., United States
v. Carty, 520 F.3d 984, 991-993 (9th Cir. 2008) (en banc),
and that a district court may depart below the applicable
Guidelines range on the basis of the remaining § 3553(a) fac-
tors, id., the plain language and structure of § 3553 indicate
that only subsections (e) and (f) permit a district judge to
reject a mandatory minimum sentence. Subsection (e) is titled
“Limited authority to impose a sentence below a statutory
minimum” and requires that the government file a motion for
substantial assistance before departing below the statutory
minimum. Subsection (f) is titled “Limitation on applicability
of statutory minimums in certain cases” and outlines circum-
stances in which first-time offenders may be relieved of statu-
tory minimums for non-violent crimes. By contrast,
subsection (a) makes no mention of statutory minimums, and
the sentencing chapter begins by instructing courts that “ex-
cept as otherwise specifically provided, a defendant who has
been found guilty of an offense described in any Federal stat-
ute . . . shall be sentenced . . . so as to achieve the purposes
set forth in subparagraphs (A) through (D) of section
3553(a)(2) . . . .” 18 U.S.C. § 3551(a) (emphasis added).
[4] Because Congress specifically included language in
subsections (e) and (f) of § 3553 addressing limited circum-
stances in which a district court may depart below statutory
minimums and did not include such language in subsection
(a), it should be presumed that Congress intended not to dis-
turb statutory minimums through application of the § 3553(a)
factors. See Russello v. United States, 464 U.S. 16, 23 (1983)
(“[W]here Congress includes particular language in one sec-
tion of a statute but omits it in another section of the same
13118 UNITED STATES v. WIPF
Act, it is generally presumed that Congress acts intentionally
and purposely in the disparate inclusion or exclusion.” (quota-
tion marks and citation omitted)). Moreover, through the stat-
utory minimum set forth in 21 U.S.C. § 841(b)(1)(A)(iv),
Congress “otherwise specifically provided” that the § 3553(a)
factors do not control. See Samas, 561 F.3d at 111 (holding
that § 3553(a) did not permit courts to sentence below the
statutory minimums in 21 U.S.C. § 841(b)); Castaing-Sosa,
530 F.3d at 1361-62 (same).
[5] The Supreme Court’s decision in Kimbrough supports,
rather than undermines, the conclusion that a sentencing court
may not depart below statutory minimums based upon the
§ 3553(a) factors. In Kimbrough, the Court held that a district
court may reject the 100-to-1 equivalency between crack and
powder cocaine used to determine the applicable Guidelines
range for crack cocaine convictions, even though Congress
adopted a 100-to-1 ratio in determining the statutory mini-
mum sentences in § 841(b). Although a sentencing court
could reject the Sentencing Commission’s use of the 100-to-
1 ratio in the Guidelines, the Court stated that sentencing
courts are still subject to statutory mandatory minimum sen-
tences. See Kimbrough, 552 U.S. at 104-05 (“[T]he 1986 Act
does not require . . . sentencing courts to adhere to the 100-to-
1 ratio for crack cocaine quantities other than those that trig-
ger the statutory mandatory minimum sentences.”) (emphasis
added); id. at 107 (acknowledging that there could be sentenc-
ing “cliffs” around quantities that trigger the mandatory mini-
mums). Kimbrough does not stand for the broad proposition
that the district court has discretion to reject Congress’s sen-
tencing determinations; it simply reaffirms the conclusion in
United States v. Booker, 543 U.S. 220 (2005), that the Guide-
lines ranges, including the Sentencing Commission’s use of a
drug equivalency employed elsewhere by Congress, are advi-
sory in nature. The district court had no discretion to depart
below the ten-year minimum sentence set forth by Congress,
notwithstanding Kimbrough and Booker. Accord Samas, 561
UNITED STATES v. WIPF 13119
F.3d at 110; United States v. Harris, 567 F.3d 846, 852 (7th
Cir. 2009).
IV.
[6] For the foregoing reasons, we AFFIRM Appellant’s
120-month sentence, but we REMAND for a technical cor-
rection of the written judgment as ordered in a memorandum
filed under seal contemporaneously with this opinion.