[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 06-11714 OCTOBER 10, 2006
Non-Argument Calendar THOMAS K. KAHN
CLERK
________________________
D. C. Docket No. 04-00518-CR-T-23-TGW
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
SHAWN STROBELE,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(October 10, 2006)
Before CARNES, BARKETT and PRYOR, Circuit Judges.
PER CURIAM:
Shawn Strobele appeals his 51-month sentence for conspiring to possess
with intent to distribute 1,000 or more marijuana plants, in violation of 21 U.S.C.
§§ 846, 841(b)(1)(A)(vii), and for possession with intent to distribute 100 or more
marijuana plants, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(B)(vii). Because
Strobele’s 120-month statutory minimum sentence exceeded the applicable
Guideline range, the district court first applied U.S.S.G. § 5G1.1(b), under which
the Guideline range became the statutory minimum 120 months’ imprisonment,
before departing downward pursuant to U.S.S.G. § 5K1.1.
On appeal, Strobele argues that the district court erred in concluding that the
Guideline range was the statutory minimum sentence, as opposed to the lesser
range found in the Guidelines sentencing table, in violation of United States v.
Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). He argues that
Booker invalidated our opinion in United States v. Head, 178 F.3d 1205 (11th Cir.
1999), in which we held that the appropriate starting point for a U.S.S.G. § 5K1.1
departure when a defendant faces a statutory minimum sentence was not the
applicable Guideline range, but rather the statutory minimum sentence.
Under our precedent, we must reject Strobele’s argument. “Post-Booker, we
continue to review the district court’s application of the Guidelines just as we did
pre-Booker: The district court’s interpretation of the sentencing guidelines is
subject to de novo review on appeal, while its factual findings must be accepted
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unless clearly erroneous.” United States v. Ellis, 419 F.3d 1189, 1192 (11th Cir.
2005) (quotation omitted). As we have explained:
[A]fter Booker, the district courts, while not bound to apply the
Guidelines, must consult those Guidelines and take them into account
when sentencing. This consultation requirement, at a minimum,
obliges the district court to calculate correctly the sentencing range
prescribed by the Guidelines: After Booker, the Federal Sentencing
Guidelines remain an essential consideration in the imposition of
federal sentences, albeit along with the factors in § 3553(a). A
sentencing court under Booker still must consider the Guidelines, and,
such consideration necessarily requires the sentencing court to
calculate the Guidelines sentencing range in the same manner as
before Booker. In other words, as was the case before Booker, the
district court must calculate the Guidelines range accurately. A
misinterpretation of the Guidelines by a district court effectively
means that the district court has not properly consulted the Guidelines.
United States v. Crawford, 407 F.3d 1174, 1178-79 (11th Cir. 2005) (quotations
and citations omitted).
According to U.S.S.G. § 5G1.1(b), “[w]here a statutorily required minimum
sentence is greater than the maximum of the applicable guideline range, the
statutorily required minimum sentence shall be the guideline sentence.” Moreover,
a court has only limited authority, “[u]pon motion of the Government, . . . to
impose a sentence below a level established by statute as a minimum sentence so
as to reflect a defendant’s substantial assistance in the investigation or prosecution
of another person who has committed an offense.” 18 U.S.C. § 3553(e).
In Head, we held that when a defendant faces a statutory minimum sentence,
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the appropriate starting point for a U.S.S.G. § 5K1.1 departure is the statutory
minimum sentence, not the otherwise applicable Guideline range. 178 F.3d at
1208. Specifically, we noted that “the Guidelines do not contemplate a downward
departure for substantial assistance until after the court applies section 5G1.1(b),
which establishes that the applicable guideline sentence shall be the mandatory
minimum sentence.” Id. Accordingly, a court is to apply § 5G1.1(b) before
departing downward, pursuant to § 5K1.1. Id. Furthermore, we have stated that a
“district court was, and still is, bound by the statutory minimums.” United States
v. Shelton, 400 F.3d 1325, 1333 n.10 (11th Cir. 2005). Finally, we have concluded
that “Booker does not render application of individual guideline provisions
advisory because the district court remains obligated correctly to calculate the
Guidelines range pursuant to 18 U.S.C. § 3553(f)(1).” United States v. Brehm, 442
F.3d 1291, 1300 (11th Cir. 2006).
AFFIRMED.
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