United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT January 18, 2007
Charles R. Fulbruge III
Clerk
No. 06-50241
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
versus
MICHAEL JASON KRUMNOW,
Defendant-Appellee.
Appeal from the United States District Court
for the Western District of Texas
(6:05-CR-48-10)
Before BARKSDALE, DeMOSS, and PRADO, Circuit Judges.
RHESA HAWKINS BARKSDALE, Circuit Judge:
The Government challenges Michael Jason Krumnow’s receiving a
concurrent, rather than the statutorily-required consecutive,
sentence for possession of a firearm during the commission of a
drug-trafficking offense. CONVICTION AFFIRMED; SENTENCE VACATED;
REMANDED FOR RESENTENCING.
I.
Krumnow was charged with: possession with intent to
distribute methamphetamine within 1,000 feet of a public school, in
violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(C), and 860(a) (drug-
possession count); and possession of a firearm during the
commission of a drug-trafficking offense, in violation of 18 U.S.C.
§ 924(c)(1)(A)(i) (firearm-possession count). He pleaded guilty to
both counts.
The drug-possession conviction was subject to a one-year
minimum sentence, pursuant to 21 U.S.C. §§ 841(b)(1)(C) and 860(a).
The firearm-possession conviction was subject to a 60-month minimum
sentence, to be served consecutive with the drug-possession
sentence. 18 U.S.C. §§ 924(c)(1)(A) (“any person who, during and
in relation to any ... drug trafficking crime ..., possesses a
firearm, shall, in addition to the punishment provided for such ...
drug trafficking crime — (i) be sentenced to a term of imprisonment
of not less than 5 years”), (c)(1)(D)(ii) (“no term of imprisonment
imposed on a person under this subsection shall run concurrently
with any other term of imprisonment imposed on the person,
including any term of imprisonment imposed for the ... drug
trafficking crime during which the firearm was ... possessed”).
Accordingly, the Presentence Investigation Report (PSR) stated the
firearm-possession sentence “shall be consecutive” to the drug-
possession sentence.
Although Krumnow filed objections to the PSR, he did not
object to his firearm-possession sentence’s being consecutive.
Krumnow also filed a sentencing memorandum, which contained letters
from family, friends, and acquaintances, for mitigation-of-
punishment purposes.
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At sentencing, Krumnow’s “only objection”, which was
unopposed, was to his drug-possession-conviction Guidelines offense
level. For that conviction, after the district court made two
Guidelines reductions, including for acceptance of responsibility,
the advisory Guidelines sentencing range was 63-78 months. The
court imposed a below-the-range sentence of 60 months.
For the firearm-possession conviction, after presenting
mitigation-of-punishment testimony from Krumnow and his parents,
Krumnow’s counsel stated: “[I]f [the court] sentence[s] within the
[G]uidelines and sentence[s] ... Krumnow consecutively ... the
punishment in this case really outstrips what [he] needs”.
(Emphasis added.) In response, the Government requested that
Krumnow be sentenced within “the [G]uideline range”; and, later,
that the court “sentence within the [G]uideline range as to [the
drug-possession conviction] and the 60 months as to [the firearm-
possession conviction]”.
For the firearm-possession conviction, the district court
stated “the mandatory sentence is 60 months”; it then stated it
would “depart downward, however” for that sentence, “and impose a
period of 60 months ... but to be served concurrently, not
consecutively”. Although the court gave no reasons for its doing
so at sentencing, its subsequent Statement of Reasons, which
recognized the firearm-possession sentence was “concurrent instead
of consecutive as is mandated by statute” (emphasis added), stated:
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“the sentence imposed is below a mandatory minimum term because the
Court has determined that the mandatory minimum does not apply
based on findings of fact in this case”; and “[t]he sentence
imposed is below the advisory guideline range [because of] the
nature and the circumstances of the offense and the history and the
characteristics of the defendant pursuant to 18 U.S.C. §
3553(a)(1)”. (Emphasis in original.)
At sentencing, the district judge stated he was “aware that
this is a sentence that the government could easily appeal if it
wishes. If it does, I will not be insulted. The government has
the right to do that”. The court also informed Krumnow of his
right to appeal the sentence, “[i]f [he were] foolish enough to do
that”. Subsequently at sentencing, the Government did not object
to the sentences’ not being consecutive.
II.
In general, pursuant to United States v. Booker, 543 U.S. 220
(2005) (Guidelines only advisory), we review sentences for
reasonableness. E.g., United States v. Smith, 440 F.3d 704, 706
(5th Cir. 2006). “Both a district court’s post-Booker sentencing
discretion and the reasonableness inquiry on appeal must be guided
by the sentencing considerations set forth in 18 U.S.C. § 3553(a).”
Id. Concerning the firearm-possession sentence’s not being
consecutive, however, our analysis does not turn on whether that
sentence was: a “Guideline sentence”; a “Guideline sentence”
4
including a Guidelines-allowed upward or downward departure; or a
“non-Guideline sentence”. Id. at 707 (discussing the three
different types of post-Booker sentences). Instead, as discussed
below, our holding for that issue is mandated by 18 U.S.C. §
924(c).
A.
First, Krumnow contends the Government’s failure to object in
district court to the sentences’ not being consecutive dictates
plain-error review. Although the Government should have objected,
Krumnow’s contention is unavailing.
“Generally, if a party fails to timely raise an issue in
district court, we will review it for plain error unless the party
made its position clear to the district court and to have objected
would have been futile.” United States v. Castillo, 430 F.3d 230,
242 (5th Cir. 2005) (emphasis added) (citation omitted). In this
regard, pursuant to the PSR and its comments at sentencing, the
Government made clear its position regarding Krumnow’s sentence,
including the firearm-possession sentence’s being consecutive.
Further, the court’s comments at sentencing demonstrate the
futility of any Government objection to the concurrent, rather than
consecutive, sentences.
B.
For the firearm-possession sentence, “a district court may
impose a sentence of imprisonment below a statutory minimum ...
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only if: (1) the Government [so moves] pursuant to 18 U.S.C. §
3553(e)[,] asserting the defendant’s substantial assistance to the
Government; or (2) the defendant meets the ‘safety valve’ criteria
set forth in 18 U.S.C. § 3553(f)”. United States v. Phillips, 382
F.3d 489, 499 (5th Cir. 2004) (emphasis added). Otherwise, post-
Booker sentencing courts lack discretion to depart below relevant
statutory minimums. E.g., United States v. Robinson, 404 F.3d 850,
862 (4th Cir.) (“Booker did nothing to alter the rule that judges
cannot depart below a statutorily provided minimum sentence.”),
cert. denied, 126 S. Ct. 288 (2005). This is consistent with the
holdings in unpublished opinions by our court. See United States
v. Johnson, 156 F.App’x 640, 642 (5th Cir. 2005) (unpublished)
(“Nothing in Booker allows a district court to impose a sentence
below the statutory minimum.”), cert. denied, 126 S. Ct. 1643
(2006); United States v. Sepulveda-Rodriguez, 157 F.App’x 765, 766
(5th Cir. 2005) (unpublished) (rejecting, under plain-error review,
the contention that Booker rendered statutory-minimum sentences
discretionary because “Booker is silent as to those issues” and no
supporting authority was cited); United States v. Guajardo-Guzman,
149 F.App’x 274, 275 (5th Cir. 2005) (holding, under plain-error
review, defendant could not show post-Booker sentence would
significantly differ from pre-Booker sentence on remand, because
6
“he was sentenced to the mandatory minimum sentence dictated by
statute”).
Further, this proposition has been at least indirectly
recognized in a recent published opinion by our court. See United
States v. Farias, 469 F.3d 393 (5th Cir. 2006). Noting the
defendant did not contend otherwise, our court stated: “a
judge[’s] ... discretion under Booker to sentence below a mandatory
minimum [is] a proposition this and other courts have rejected”,
id. at 401 (footnote omitted); and, “whatever result the Guidelines
yield, the sentence cannot be less than the mandatory minimum”, id.
(emphasis added).
As quoted supra, the statutory-minimum sentence for Krumnow’s
firearm-possession conviction was a 60-month consecutive sentence.
18 U.S.C. §§ 924(c)(1)(A)(i), (c)(1)(D)(ii); see also United States
v. Correa-Ventura, 6 F.3d 1070, 1084-85 (5th Cir. 1993) (“[section
924(c)’s] mandatory sentence run[s] consecutively rather than
concurrently with that of the predicate crime”). The Government
did not make a § 3553(e) “substantial-assistance” motion. Further,
§ 3553(f)’s “safety valve” is not applicable to the drug-possession
offense here, 21 U.S.C. § 860, as the exception is explicitly
limited to the following offenses: 21 U.S.C. §§ 841, 844, 846,
960, and 963. 18 U.S.C. § 3553(f); see also Phillips, 382 F.3d at
499 (holding § 860 offenses ineligible for § 3553(f) “safety valve”
7
treatment). Krumnow does not contend otherwise. Therefore, the
district court erred by imposing Krumnow’s drug-possession and
firearm-possession sentences to run concurrently.
Our court’s recent decision in United States v. James, 468
F.3d 245 (5th Cir. 2006), “h[e]ld that ... § 3553(e) applies to the
mandatory minimum sentences of ... § 924(c)(1), and that a
Government motion made pursuant to section 3553(e), requesting that
the district court depart from [§ 924(c)(1)’s] statutory minimums
... , gives the ... court ... authority to depart from th[ose] ...
minimums”. Id. at 248. Our above holding is entirely consistent
with this holding in James.
In reaching its holding, James discussed the general rule
that, upon the Government’s filing a § 3553(e) “substantial-
assistance” motion, a district court has discretion to depart below
§ 924(c)(1)’s mandatory minimum sentence; but, it then stated:
“There is ... no statutory provision or jurisprudential holding
that would prohibit a court from departing below the section
924(c)(1) minimum if the court felt that such sentence was
appropriate”. Id. at 247-48. This statement, which is arguably
inconsistent with our holding and the above-quoted statements in
Farias, is simply either subsumed in the analysis for why the §
924(c) sentence may be reduced if the Government requests it or is
dictum. Restated, this statement in James is not its holding.
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Farias does not cite James, rendered only approximately two
weeks earlier. Of course, if the statement in James is dictum, our
well-established rule that one panel cannot overrule a prior panel
decision absent an intervening change in law is not implicated.
III.
For the foregoing reasons, Krumnow’s conviction is AFFIRMED;
his sentence is VACATED and this matter is REMANDED for
resentencing.
CONVICTION AFFIRMED; SENTENCE VACATED;
REMANDED FOR RESENTENCING
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DeMOSS, Circuit Judge, specially concurring:
I concur fully in all of the holdings of Judge Barksdale’s opinion, however I write
separately to comment on what I believe the district judge was trying to achieve at
sentencing, and to suggest an alternative approach for re-sentencing.
From my reading of the record and the comments made at sentencing, I am
persuaded that the district judge felt that a combined sentence of ten years was not
appropriate for this defendant, which is why he ordered the two five-year sentences to
run concurrent. If I am correct in this assumption, the district court may be able to
achieve a similar result by issuing a non-Guideline sentence for the drug-possession
charge either at or above the statutory minimum of one year (but below the low-end of
the Guideline range), and then run the mandatory five-year sentence for the gun-
possession conviction consecutively. Of course at re-sentencing a full and proper
explanation must be given for any non-Guideline sentence to justify its reasonableness.
The combined sentence that Krumnow could then receive under the applicable statutes
could be as little as six years, which would be closer to what I believe the district judge
felt was an appropriate sentence for this defendant.*
*
The comments that I make in this special concurrence are
solely my own opinions and not the opinions or conclusions of any
other panel member. I am in no way suggesting that the district
judge is bound by this concurrence or that a non-Guidelines
sentence will automatically be upheld on appeal.
10