PUBLISH
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
U.S. COURT OF APPEALS
_______________________ ELEVENTH CIRCUIT
06/25/99
No. 98-8491 THOMAS K. KAHN
_______________________ CLERK
D. C. Docket No. 96-CR-23-7
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
HERSCHEL HEAD, JR.,
a.k.a. “JR”,
Defendant-Appellant.
_________________________
Appeal from the United States District Court
for the Southern District of Georgia
_________________________
(June 25, 1999)
Before BARKETT, Circuit Judge, KRAVITCH and MAGILL*, Senior Circuit Judges.
KRAVITCH, Senior Circuit Judge:
*
Honorable Frank J. Magill, Senior U.S. Circuit Judge for the Eighth Circuit, sitting by
designation.
Herschel Head pled guilty to one count of conspiracy to possess and distribute
methamphetamine in violation of 21 U.S.C. § 846. After compiling a Presentence
Investigation Report, the probation officer calculated an offense level of 28 based
upon the amount of methamphetamine involved in the conspiracy. Head received a
three-level reduction in his offense level for accepting responsibility pursuant to
U.S.S.G. § 3E1.1. The probation officer therefore set the total offense level at 25 and,
after factoring in Head's criminal history category, determined an applicable
guideline range of between 70 and 87 months of imprisonment. The probation officer,
however, noted that 21 U.S.C. § 841(b)(1)(A) imposed a mandatory minimum
sentence of 120 months and recommended that sentence.
Prior to sentencing and pursuant to the plea agreement, the government filed a
motion for downward departure pursuant to U.S.S.G. § 5K1.1 and 18 U.S.C. §
3553(e) in recognition of Head's substantial assistance to the government.1 At the
sentencing hearing, Head urged the district court to use the range of 70 to 87 months
as the point from which to grant the downward departure; the government argued that
the court had to start with the mandatory minimum sentence of 120 months. The
district court granted the government's motion but rejected Head's argument and used
1
The government's motion for downward departure initially referred only to § 5K1.1,
but the government amended it to include reference to § 3553(e). Without that addition, the
district court would not have had the authority to depart beneath the mandatory minimum
sentence. See Melendez v. United States, 518 U.S. 120, 116 S. Ct. 2057 (1996).
2
120 months as its point of departure. The court then awarded a 24 month downward
departure and imposed a sentence of 96 months.
On appeal, Head renews his argument that the district court erred by using the
mandatory minimum sentence as the starting point for departure.2 We review a
district court's interpretation of the sentencing guidelines and statutes de novo. See
United States v. Maurice, 69 F.3d 1553, 1556 (11th Cir. 1995); United States v.
Hayes, 5 F.3d 292, 294 (7th Cir. 1993).3 As we discern no error in the district court's
decision, we affirm Head's sentence.
We considered the appropriate starting point for a section 5K1.1 departure when
the defendant faces a statutory minimum sentence in United States v. Aponte, 36 F.3d
1050 (11th Cir. 1994) (per curiam). We affirmed the district court's use of the
mandatory minimum sentence—60 months for using a firearm in relation to a drug
offense—as the point of departure. We rejected, without discussion, the defendant's
argument that the sentencing court should have ignored the mandatory minimum and
departed from a lower alternative point based on the
2
Head did not waive his right to appeal sentencing issues in his plea agreement.
3
We generally may not review a district court's refusal to grant a § 5K1.1 downward
departure or the extent to which the court departs. See United States v. Luiz, 102 F.3d 466, 468
(11th Cir. 1996). Head's appeal, however, concerns the legal interpretation of the relevant
guidelines and statutes and addresses neither the court's decision to depart nor the amount of the
downward departure. Accordingly, we review the matter de novo. Id.
3
defendant's reading of a guideline provision that addresses the unlawful possession
of firearms.
In a case that also involved the 60 month mandatory minimum sentence for the
illegal use of firearms, the Eighth Circuit followed our lead in Aponte and held that
the mandatory minimum sentence represents the appropriate point of departure. See
United States v. Schaffer, 110 F.3d 530, 532-34 (8th Cir. 1997). The Schaffer court
considered the defendant's argument that section 3553(e), which authorizes a sentence
below the statutory minimum, required the district court to ignore the mandatory
minimum sentence when considering a motion for downward departure based upon
the defendant's substantial assistance.4 The defendant argued that the second sentence
of section 3553(e), which instructs the court to impose a sentence “in accordance with
the guidelines,” requires the sentencing court to calculate the guideline sentence that
the defendant would receive in the absence of the statutory minimum and use that
4
The statute provides:
Limited authority to impose a sentence below a statutory minimum.—Upon
motion of the Government, the court shall have the authority to impose a sentence
below a level established by statute as minimum sentence so as to reflect a
defendant's substantial assistance in the investigation or prosecution of another
person who has committed an offense. Such sentence shall be imposed in
accordance with the guidelines and policy statements issued by the Sentencing
Commission . . . .
18 U.S.C. § 3553(e).
4
sentence as the departure point.5 The Eighth Circuit rejected the argument and
explained that, because the guideline provision applicable to the defendant's firearm
offense referred the court back to the statutory minimum, that minimum sentence
became the guideline sentence for the purposes of downward departure. See Schaffer,
110 F.3d at 533-34.
Head attempts to distinguish Aponte and Schaffer by arguing that the
Guidelines' unique treatment of firearms offenses dictated the result in those cases.
Head contends that the Guidelines do not provide an alternative, measured range of
sentences that would apply in the absence of the statutory minimum sentence that
Congress set forth in section 924(c)(1) for firearms violations.6 He argues that
because, in contrast, the Guidelines specifically provide for the offense to which he
pled guilty and produce an alternative range of 70 to 87 months, the district court
improperly ignored section 3553(e)'s instruction to impose a sentence in accordance
5
To arrive at a lower alternative starting point, the defendant in Schaffer relied upon
U.S.S.G. § 2X5.1, which directs the court to use the most analogous offense guideline for
offenses not expressly addressed in the Guidelines, because the Guidelines do not impose an
offense level for a violation of 18 U.S.C. § 924(c). See U.S.S.G. § 2K2.4 (noting that Congress
imposed the punishment for violation § 924(c) in the statute).
6
In both Aponte and Schaffer the defendants used (arguably applicable) analogous
guidelines to arrive at the alternative lesser sentences from which they proposed the court depart
downward. See Schaffer, 110 F.3d at 533 (relying upon § 2K5.1); Aponte, 36 F.3d at 1051-52
(relying upon 2K2.1(a)(7)).
5
with the Guidelines when it used the mandatory minimum sentence as the starting
point for departure.
The Seventh Circuit identified the flaw in Head's proposed analysis when it
considered a similar argument in United States v. Hayes, 5 F.3d 292 (7th Cir. 1993).
Much like Head, the defendant in Hayes pled guilty to a drug offense that would have
produced an initial guideline range of 21 to 27 months but fell under a higher
mandatory minimum sentence. Id. at 294. The sentencing court used the mandatory
minimum as its starting point for downward departure despite the defendant's
argument that section 3553(e) required the court to use the lower applicable guideline
sentence. The Seventh Circuit explained that U.S.S.G. § 5G1.1(b), which addresses
the implementation of statutory minimum sentences under the Guidelines, made the
statutory minimum sentence the guideline sentence.7 The Hayes court, therefore, held
that the lower guideline range no longer applied and that the appropriate starting point
for considering the motion for downward departure was the statutory minimum
sentence. Id. at 295. See also United States v. Padilla, 23 F.3d 1220, 1222 & n.3 (7th
Cir. 1994) (citing Hayes with approval).
7
The section provides: “Where 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.” U.S.S.G. § 5G1.1(b).
6
Head's only rejoinder to the Hayes court's application of section 5G1.1(b) in this
manner is to argue that it conflicts with an application note to U.S.S.G. § 2D1.1, the
provision that governs Head's underlying drug offense. Application note 7 provides
that:
Where a mandatory (statutory) minimum sentence applies, this
mandatory minimum sentence may be “waived” and a lower sentence
imposed (including a sentence below the applicable guideline range) . .
. by reason of a defendant's “substantial assistance in the investigation or
prosecution of another person who has committed an offense.”
U.S.S.G. § 2D1.1, comment. (n.7) (“note 7") (quoting section 5K1.1). Head argues
that a straightforward reading of this provision compels the conclusion that the terms
“mandatory minimum sentence” and “applicable guideline range” refer to different
sources of authority and, hence, different sentences. He therefore contends that the
Hayes court's substitution of the mandatory minimum sentence for the applicable
guideline sentence is at interpretive odds with the text of note 7. He further argues
that because section 2D1.1 precedes section 5G1.1(b), we must apply note 7 first and
thus waive the statutory minimum sentence before we reach section 5G1.1. See
U.S.S.G. § 1B1.1 (instructing courts on the order in which to apply the Guidelines).
Although note 7 refers to downward departures for defendants' substantial
assistance, it provides no direction for choosing the starting point from which the
sentencing court must depart. Instead, note 7 observes that in some cases involving
7
a statutory minimum sentence, the court may waive that minimum sentence and
impose a sentence below the statutory minimum. The district court's authority to
depart downward for substantial assistance appears in section 5K1.1 and represents
one of the last steps the court must take in imposing a sentence. See U.S.S.G. § 1B1.1
(directing the court to consider Parts H and K of Chapter 5 as the final step in
applying the Guidelines). Of particular significance, 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. Applying the Guidelines in order, therefore,
produces a pre-departure guideline sentence of 120 months in Head's case. As a
result, the district court's decision to use 120 months as the starting point for its
downward departure did not transgress section 3553(e)'s direction to make departure
decisions in accordance with the applicable guidelines.8
Accordingly, we AFFIRM.
8
This mechanical application of the relevant guideline provisions demonstrates that any
interpretive tension that our reading of § 5G1.1(b) causes with note 7, is both fleeting and of no
consequence. Note 7 merely foreshadows a downward departure that the court cannot perform
until after the court has considered and applied § 5G1.1(b). The Guidelines, in note 7,
accurately refer to the mandatory minimum and the applicable guideline range as two different
entities while the court considers § 2D1.1, but by the time the court turns to a downward
departure it already will have equated the applicable guideline sentence with the mandatory
minimum pursuant to § 5G1.1(b).
8