NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted September 17, 2008
Decided September 18, 2008
Before
JOEL M. FLAUM, Circuit Judge
TERENCE T. EVANS, Circuit Judge
DIANE S. SYKES, Circuit Judge
No. 08‐1400
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff‐Appellant, Court for the Northern District of
Illinois, Eastern Division.
v.
No. 06 CR 67‐2
RICHARD HARRINGTON,
Defendant‐Appellee. William J. Hibbler,
Judge.
O R D E R
Richard Harrington pleaded guilty to one count of conspiring to possess with the
intent to distribute and to distribute more than 500 grams of cocaine. See 21 U.S.C.
§§ 841(a)(1) and 846. The amount of cocaine triggered a mandatory minimum sentence of
five years’ imprisonment. See id. § 841(b)(1)(B). The written plea agreement acknowledged
the mandatory minimum sentence but also stated that based on the evidence known at the
time of the agreement Harrington was eligible for application of the “safety valve”
provision, so he could receive a sentence below the mandatory minimum. See 18 U.S.C.
§ 3553(f). But while preparing the presentence investigation report, the probation officer
No. 08‐1400 Page 2
discovered that Harrington had a previous drug conviction that translated to three criminal
history points, which made him ineligible for the safety‐valve provision. See id. § 3553(f)(1).
The district court nevertheless sentenced Harrington to 51 months’ imprisonment—nine
months shy of the mandatory minimum—reasoning that Harrington’s poor physical
condition and cooperation with the government rendered the mandatory minimum
sentence unreasonable.
The government appealed the sentence. Both the government and Harrington’s
counsel agree that the district court did not have discretion to impose a sentence below the
mandatory minimum. Indeed, district courts may not apply the factors listed in § 3553(a) to
impose a sentence below the statutory mandatory minimum even after United States v.
Booker, 543 U.S. 220 (2005). See United States v. James, 487 F.3d 518, 530 (7th Cir. 2007); United
States v. Duncan, 479 F.3d 924, 930 (7th Cir. 2007). District courts may impose a sentence
below the mandatory minimum only if the government moves for a departure based on
substantial assistance or if the defendant is eligible for the safety‐valve provision. See United
States v. Crickon, 240 F.3d 652, 655 (7th Cir. 2001). Neither of these exceptions apply here,
which all parties and the district court acknowledged. Accordingly, we grant the parties’
agreed motion to waive oral argument, vacate Harrington’s sentence, and remand the case
to the district court for resentencing.