[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
APR 6, 2007
No. 06-12537 THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 05-00266-CR-003-WHS
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
versus
PATRICK LETT,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Alabama
_________________________
(April 6, 2007)
Before CARNES, PRYOR and FARRIS,* Circuit Judges.
CARNES, Circuit Judge:
*
Honorable Jerome Farris, United States Circuit Judge for the Ninth Circuit, sitting by
designation.
The facts of Patrick Lett’s life that gave rise to this case read somewhat like
a morality play. He was born and raised in Monroe County, Alabama. He had
what he described as a nice childhood. Married and divorced, he has three
daughters. He served his country in the National Guard and then the regular army.
Some of his service was in Iraq as part of Operation Iraqi Freedom, and all of it
was honorable. He received numerous citations and medals for meritorious
achievement. His superior officers used superlatives to describe him and his
dedication to the missions he was assigned.
After fourteen years in the military, Lett returned to civilian life the week
before Christmas in 2003. It was not a happy time for him. He had lost friends
and had seen fellow soldiers killed in Iraq. He had also seen what he described as
“some very, very strange things.” While he was in Iraq, his fiancée died. When he
returned home his father was dying. He had trouble supporting his children. He
felt pressured. He was depressed. He began to drink heavily, which only helped
fuel the downward trajectory of his life. Lett felt, in his words, like “the lowest
person on the face of the earth.”
Enter temptation in the form of his cousin, Michael. Michael was a big time
cocaine distributor, or what passes for one in Monroe County. He bought powder
cocaine wholesale in Montgomery for resale as cocaine and crack back home. For
2
distribution, Michael had something of a friends and family plan. Influenced
perhaps by the cultural mores of a south Alabama county, he did not rely on
strangers or mere acquaintances to sell his drugs for him. Instead, he used his
personal friends and members of his family.
Michael eventually prevailed upon Patrick to be one of his street level
sellers, operating out of trailers, vacant houses and yards. On seven occasions
during a five-week period in the Spring of 2004, Patrick Lett sold cocaine and
crack cocaine to Ceonia Stanton, and sometimes to another person in Stanton’s
presence, in quantities ranging from just over a gram to nearly fourteen and a half
grams. It was typical drug dealer conduct. But Patrick Lett was atypical, because
he was a drug dealer with a conscience. With his conscience came remorse and a
search for redemption. He felt guilty about his actions. He realized, as he put it,
that “it takes a cruel-hearted person to actually take advantage of someone who has
a disease, and that disease is addiction,” and he “decided to get on my knees and
pray a little harder and ask God to pull me back together, . . . which [H]e did.”
Lett quit selling drugs and left Michael’s operation to the devil’s own devices.
Lett re-enlisted in the military in October 2004, and again he rendered
exemplary service to his country. His superior officers attested that Lett, a
sergeant, was an outstanding soldier, dedicated to the welfare of his men and to
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accomplishing whatever mission he was given. He made his men’s lives better and
his superiors’ jobs easier. His captain said that Lett “exemplified the Army values”
of “loyalty, duty, respect, selfless service, honor, integrity, personal courage.” He
would be willing to entrust his life to Lett.
Having pulled himself out of the world of illegal drugs and gone back to
serving his country, Lett may have thought that he had left his past behind him. As
Faulkner reminded us, however, “The past is never dead. It is not even past.”
William Faulkner, Requiem for a Nun 92 (1951). It turns out that Ceonia Stanton,
to whom Lett had sold the drugs, was an undercover law enforcement agent
working as part of a task force aimed at shutting down Michael Lett’s operation.
In September 2005, a grand jury indicted Lett and fourteen others, including
Michael, for various federal drug crimes stemming from their roles in the
conspiracy. Lett pleaded guilty to seven counts of possession with intent to
distribute, one for each of the sales to the undercover agent, all in violation of 21
U.S.C. § 841(a)(1).
I.
The presentence investigation report noted that Lett admitted selling 60.42
grams of crack cocaine and 7.89 grams of powder cocaine, which put his base
offense level at thirty two. It recommended, and the government did not object to,
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that level being lowered: by two levels because he met the five criteria for a safety
valve reduction; by another two levels because he accepted responsibility for his
crime; and by one more level because he timely notified the government of his
intention to plead guilty before it dedicated substantial resources to prosecuting
him. Those reductions left an offense level of twenty seven.
With that adjusted offense level and no prior criminal record, Lett’s advisory
guideline range was seventy to eighty-seven months imprisonment. He faced a
mandatory minimum prison sentence of sixty months on five of the counts under
21 U.S.C. § 841(b)(1)(B). About those statutory mandatory minimum sentences,
and the resulting inapplicability of the U.S.S.G. § 5C1.2 safety valve provision, the
PSR stated:
Based on a total offense level of 27 and a criminal history category of
I, the guideline range of imprisonment is 70 to 87 months. Counts 8,
9, 10, 11, and 12, each carry a mandatory minimum penalty of 60
months. Although it appears that the defendant is eligible for
consideration under U.S.S.G. § 5C1.2, because the minimum of the
guideline range is 70 months, which is greater than the statutory
mandatory minimum 60 months, 5C1.2 consideration is a moot issue.
Neither the government nor Lett lodged any objection to the PSR, and with
the consent of both parties the district court adopted it as written. Lett called three
witnesses to testify for him at the sentence hearing: a sergeant, a first sergeant, and
a captain, all of whose testimony we alluded to earlier in describing Lett’s military
5
service. Two of the three implored the court to impose the least sentence the law
allowed. Lett himself also took the stand. He admitted the drug crimes he had
committed during the short period of time two years earlier, accepted responsibility
for them, described the “pride and respect and unity and honor” he feels when he
puts on the uniform in service of his country, and asked the court to give him a
sentence that would allow him to stay in the military so that he could continue
supporting his three daughters, the oldest of whom was sixteen and pregnant.
At the end of the testimony, Lett’s counsel asked the district court to put him
on supervised release “or some kind of probation” or to give him “the minimum
sentence possible” so that he could stay in the military. According to counsel, the
Army was willing to allow Lett to continue his service if the district court
sentenced him to probation. Even though he made the request, counsel
acknowledged that “there’s a minimum mandatory five-year sentence under the
statute, and it would be very hard for the Court to find a five-year sentence that’s
constitutionality excessive,” so he asked the court to give the lightest sentence
possible.
The district court judge was well suited to evaluate Lett’s military service,
having himself served for six years as an officer and pilot in the United States
Marine Corps and another fourteen years in the Army National Guard as a pilot
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and the commanding officer of an assault helicopter company. He was
sympathetic to Lett and impressed with how different this case was from others he
had seen. Lett’s complete lack of any prior criminal record and the substantial
contributions he had made to the military in service of his country made him stand
out. The judge reviewed Lett’s service fitness ratings, which ranged from good to
excellent and among the best in regard to promotion potential. He summarized the
letters he had received and the testimony he had heard as proving that Lett was “an
extremely valuable asset to the United States Army, an outstanding NCO, a model
soldier, a role model with excellent work ethic, a dynamic, innovative leader, a
shining example for his peers and subordinates.”
The district court construed the arguments of Lett’s counsel as a motion to
enter a non-guideline sentence and to determine that the statutory mandatory
minimum was constitutionally excessive so that he could sentence below it. The
court did not find the mandatory minimum sixty-month sentences constitutionality
excessive, but it decided not to sentence any higher than that. The court concluded
that Lett’s exemplary military service and his lack of any criminal history, other
than during those five weeks he had sold drugs for his cousin, justified a variance
under 18 U.S.C. § 3553(a) from the seventy to eighty-seven months range.
7
However, the court also decided that the statutory five-year mandatory minimum
provided a floor beyond which it could not go:
There is no way that I can legally go below that five-year mandatory
minimum, even if I wanted to. So, discretion is limited by Congress,
who has dictated that people who commit these kind of crimes shall
serve no less than 60 months, or five years.
The court ordered that the sixty-month sentence on each of the seven counts be
served concurrently.
II.
Enter Matthew Sinor, a close friend of Lett’s who had served with him in the
Army for three years and a second-year student at Moritz College of Law at the
time of sentencing. Sinor traveled from Columbus, Ohio to Mobile, Alabama for
the proceeding, and when he returned to law school described what had happened
to his criminal sentencing professor, Douglas A. Berman. Professor Berman
suggested a theory to Sinor which he in turn conveyed to the district court in a
letter dated April 17, 2006, four days after the court had sentenced Lett to sixty-
months imprisonment.
In his letter Sinor informed the court of the professor’s view that the safety
valve provisions in 18 U.S.C. § 3553(f) and U.S.S.G. § 5C1.2 operated to free the
court of the mandatory minimum otherwise required by 21 U.S.C. § 841(b)(1)(B).
Sinor told the court he was concerned that defense counsel had not raised the
8
argument, and that time for doing something about it under Fed. R. Crim. P. 35(a)
was running out. Sinor sent copies of his letter to counsel for Lett and the
government, but so far as the record shows neither filed a response.
The district court issued an order modifying Lett’s sentence on April 24,
2006, which was the last day of the seven-day period for correcting sentences
under Rule 35(a), as extended by the counting provision in Fed. R. Crim. P.
45(a)(2). The court explained that at the sentence hearing it had accepted the
PSR’s recommendation that the safety valve provision did not apply to Lett’s
sentence because neither Lett nor the government had objected to the PSR, and
because the court believed that result was correct. Having reconsidered, the court
now decided otherwise.
In setting out the reasons for changing its mind, the court explained in detail
how it had interpreted the safety valve provision in § 5C1.2 before the decision in
United States v. Booker, 543 U.S. 220, 125 S. Ct. 738 (2005):
It should be noted here that, in the pre-Booker world of
sentencing, this Court has consistently denied other Defendants
benefit of the safety valve where the guidelines range was calculated
to be above the mandatory minimum. The basis for this result is the
Court’s belief that § 5C1.2 creates two subsets of Defendants; those
whose guidelines sentences are above the mandatory minimum, and
those Defendants whose guidelines sentences are below the
mandatory minimum. It is this Court’s interpretation of that provision
that compelled it to conclude that only those Defendants whose
guidelines sentences fell below the mandatory minimum were entitled
9
to application of that part of the safety valve which authorizes the
Court to impose a sentence below the mandatory minimum.
Otherwise, § 5C1.2 makes no sense.
In other words, how could the Court impose a sentence “in
accordance with the applicable guidelines without regard to any
statutory minimum sentence” if the applicable guidelines range is
above the mandatory minimum? Any sentence imposed below the
mandatory minimum in such a case necessarily would be outside the
applicable guidelines, leaving the Court with no guidelines at all.
Moreover, had Congress and the Sentencing Commission
intended that any safety valve-eligible Defendant, regardless of that
Defendant’s projected guidelines range, be qualified for a lower than
mandatory sentence, they could have said so. But Congress and the
Sentencing Commission did not say so. In fact, a reasonable
interpretation of the [safety valve provision] compels a conclusion
that the language “in accordance with the applicable guidelines”
imposes an additional criterion that a Defendant must meet in order to
qualify for a sentence below the mandatory minimum. That is, the
Defendant must have a projected guidelines sentence below that
minimum.
(emphasis in original; paragraph breaks added).
The court then asked itself: “Now, what does all of this mean in the post-
Booker world,” and answered its own question with the candid admission that:
“The answer certainly is not clear, because there is little or no guidance from the
courts of appeal or even from sister courts throughout the country.” It found the
decisions in United States v. Cherry, 366 F. Supp. 2d 372 (E.D. Va. 2005), and
United States v. Duran, 383 F. Supp. 2d 1345 (D. Utah 2005), of little help because
they “involved guideline ranges below the mandatory minimum.”
10
Nonetheless, the district court concluded, without further explanation, that in
the post-Booker world, “when all five conditions of § 5C1.2 are satisfied, the
Defendant is safety valve eligible and the Court’s sentencing discretion is not
bounded by a statutory mandatory minimum sentence, irrespective of whether the
accurately calculated advisory guidelines sentencing range is above or below that
mandatory minimum.”
With its discretion now unfettered by the five-year mandatory minimum of
21 U.S.C. § 841(b)(1)(B), the district court reapplied the § 3553(a) factors in light
of Lett’s limited role in the offense, his voluntary withdrawal from the criminal
enterprise followed by his re-enlistment in the Army where he remained on active
duty until his arrest, his lack of criminal history, and his unblemished and
significant seventeen-year career in the military, including two tours of duty in
Iraq. In light of those factors, the court concluded that it should vary downward so
that the sentence imposed would be time served, which amounted to eleven days.
The court imposed that sentence on all seven counts to run concurrently. As a
result, Lett was released from prison subject to a term of supervisory release.
III.
The government appeals the district court’s judgment giving Lett a sentence
of only eleven days for seven different drug sales over a period of five weeks,
11
totaling just over 60 grams of crack cocaine and just under 8 grams of powder
cocaine. The government’s contention is that the district court erred in using its
Rule 35(a) authority to correct Lett’s original five-year sentence, because its initial
conclusion that Lett was not safety valve eligible was not an “arithmetical,
technical, or other clear error” as required for use of the rule. As a fallback
argument, which we need not reach, the government contends that even if the
court were permitted to revisit its sentence under Rule 35(a), the resulting eleven
day sentence was unreasonable.
Rule 35(a)’s single sentence provides: “Within 7 days after sentencing, the
court may correct a sentence that resulted from arithmetical, technical, or other
clear error.” Fed. R. Crim. P. 35(a). The district court did not claim, and Lett does
not argue, that the court made an arithmetical or technical error in imposing the
original sentence of sixty months. Instead, the issue is whether the district court’s
initial decision that the safety valve guideline did not apply to remove the
mandatory minimum provision in Lett’s case was a “clear error.”
The Criminal Rules Advisory Committee explained that what it meant by
“clear error” was “acknowledged and obvious errors in sentencing.” Fed. R. Crim.
P. 35 advisory committee’s notes (1991). The committee went on to add:
The authority to correct a sentence under this subdivision is
intended to be very narrow and to extend only to those cases in which
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an obvious error or mistake has occurred in the sentence, that is, errors
which would almost certainly result in a remand of the case to the trial
court for further action . . . . The subdivision is not intended to afford
the court the opportunity to reconsider the application or interpretation
of the sentencing guidelines or for the court simply to change its mind
about the appropriateness of the sentence. . . .
....
Rule 35(c) provides an efficient and prompt method for
correcting obvious technical errors that are called to the court’s
attention immediately after sentencing.
Id.1
We quoted that language in United States v. Yost, 185 F.3d 1178 (11th Cir.
1999), and summarized it as meaning that “the district court may not simply
change its mind, and any error to be corrected under that subsection must be
obvious.” Id. at 1181. We agreed with the district court in Yost that sentencing a
defendant under what was obviously the wrong offense level guideline—one
applicable to an offense for which the defendant had not been convicted—was
clear error within the corrective reach of the rule. Id. at 1179–81.
The Criminal Rules Advisory Committee notes accompanying Rule 35(a)
cite two decisions as examples of the kind of error that is clear enough for
correction under it. Fed. R. Crim. P. 35 advisory committee’s notes (1991). One is
United States v. Rico, 902 F.2d 1065 (2d Cir. 1990), where an erroneous statement
1
The provision now located in Rule 35(a) was in Rule 35(c) until it was moved as part
of the 2002 amendments to the rule. Id. advisory committee’s notes (2002).
13
by the prosecutor and a typographical error in the presentence report had caused
the court to impose a sentence different from the one the parties had agreed to in a
court-accepted plea agreement. Id. at 1066. The court and both parties
acknowledged at re-sentencing that the initial sentence was a mistake. See id. The
Second Circuit concluded on appeal that the district court had “properly corrected
its illegal sentence.” Id. at 1068.
The second example the advisory notes give of a proper application of the
clear error standard of Rule 35(a) is United States v. Cook, 890 F.2d 672 (4th Cir.
1989). There, the district court initially sentenced the defendant to three months of
community confinement followed by three months of supervised release, a
sentence contrary to the guidelines and unlawful because supervised release is
permitted only after a term of imprisonment. Id. at 674. The Fourth Circuit
affirmed the correction of that sentence to a term of three months in prison
followed by three months of supervised release. Id. at 674–75. In affirming, the
court recognized that the authority of a district court to correct a sentence is
narrowly confined, but characterized the case before it as an “unusual” one where
the original sentence was “an acknowledged and obvious mistake” and unlawful.
Id. at 675.
14
The Yost, Rico and Cook decisions trace out the boundaries of a narrow
corrective power limited in scope to those obvious errors that result in an illegal
sentence or that are sufficiently clear that they would, as the committee notes
specify, “almost certainly result in a remand of the case to the trial court for further
action.” Fed. R. Crim. P. 35 advisory committee’s notes (1991). In this case the
district court did not sentence Lett under the wrong guideline, as in Yost; it did not
impose a sentence different from the one in the plea agreement, as in Rico; and it
did not impose a sentence that was illegal under the applicable guidelines and
statutory provisions, as in Cook.
At most, the district court misunderstood the breadth of its discretion under
the safety valve provisions of 18 U.S.C. § 3553(f) and U.S.S.G. § 5C1.2, read in
light of the Booker decision, causing the court to impose a sentence higher than it
would have had it correctly gauged the law. Even so, the sentence the court did
impose was plainly permissible under the guidelines and applicable statutes. We
say “at most,” because it is not clear that the district court’s initial understanding of
the scope of its discretion was mistaken. It is not obvious that the Booker decision
eviscerated mandatory minimum sentences in every case where the defendant
meets the five criteria for safety valve treatment, including those in which the
15
advisory guideline range is above the mandatory minimum. That result would be
the effect of adopting the theory on which the re-sentencing in this case is based.
When the Supreme Court did its remedial work on the sentencing scheme to
save the guidelines from constitutional doom, Booker, 543 U.S. at 244–68, 125 S.
Ct. at 756–69, it did not address this mandatory minimum, safety valve issue. The
issue may be viewed as one of intent, and not just the congressional intent behind
21 U.S.C. § 841(b)(1)(B) and 18 U.S.C. § 3553(f), or the Sentencing
Commission’s intent behind § 5C1.2 of the guidelines, but also the intent behind
the Supreme Court’s reconstructive interpretation of the sentencing statutes in the
remedial part of the Booker decision. It seems to us that the best approach to the
merits of the post-Booker mandatory minimum issue would be to read the statutory
and guidelines provisions and the Booker Court’s restructuring work together and
attempt to ascertain their meaning as though they were all statutory enactments.
We do not have occasion to do that in this case because the merits of the
issue are not before us. Instead the issue before us is whether, at the time the
district court entered its Rule 35(a) order, it was clear that the court had erred in its
earlier conclusion that a sentence below the mandatory minimum was not
permissible in the circumstances of this case. We are confident that conclusion
was not clear error. Reasonable arguments can be made on both sides of the post-
16
Booker mandatory minimum issue, and we have no doubt that they will be. But
arguable error is one thing, and clear error is another. Regardless of how this issue
is ultimately determined on the merits, the sentence the district court initially
imposed was not illegal, and any error was not of an acknowledged and obvious
type, the kind that would “almost certainly result in a remand of the case to the trial
court for further action.” Fed. R. Crim. P. 35 advisory committee’s notes (1991).
Indeed, the district court itself conceded that the answer to the post-Booker
mandatory minimum question “certainly is not clear,” and that there are few if any
decisions from other courts that are useful in answering it. We agree with the
district court that United States v. Cherry, 366 F. Supp. 2d 372 (E.D. Va. 2005),
and United States v. Duran, 383 F. Supp. 2d 1345 (D. Utah 2005), are
distinguishable because they involved guideline ranges below the minimum
mandatory sentence.
We are not persuaded, as Lett argues, that either United States v. Lopez, 264
F.3d 527 (5th Cir. 2001), or United States v. Poyato, 454 F.3d 1295 (11th Cir.
2006), shows that an obvious error or mistake occurred when he was originally
sentenced. Because Lopez is not binding in this circuit, it would be unlikely to
serve as a basis for concluding that any other result would be obvious error and
would almost certainly result in vacating the sentence. The Lopez case is also
17
distinguishable, because the applicable guidelines range there ended up being
below the mandatory minimum level at the time the safety valve was to be applied.
Lopez, 264 F.3d at 530. The Lopez decision did not address whether safety valve
relief from a mandatory minimum sentence is available when the guidelines range
is above that minimum sentence level.
Nor does our own Poyato decision resolve the matter. It contains wholly
unremarkable statements about the post-Booker guidelines being advisory, and
about proper sentencing involving applying the guidelines, considering the §
3553(a) factors, and setting a reasonable sentence below the statutory maximum.
454 F.3d at 1299. The actual holding in Poyato was that safety valve relief was
properly denied because the defendant failed to meet one of the five prerequisites
for it (he had possessed a firearm during the commission of the crime). Id. at
1298–99. Not only that but as in Lopez, the Poyato defendant’s advisory guideline
range was below the statutory minimum. See id. at 1296. Therefore, Poyato did
not present the issue of whether the safety valve can have any application where
the guidelines range is above the statutory minimum. See United States v.
Aguillard, 217 F.3d 1319, 1321 (11th Cir. 2000) (per curiam) (“The holdings of a
prior decision can reach only as far as the facts and circumstances presented to the
Court in the case which produced the decision.” (quotation marks and citation
18
omitted)). For that reason any statements touching on this issue would be no more
than dicta anyway. See Aron v. United States, 291 F.3d 708, 716 (11th Cir. 2002)
(Carnes, J., concurring) (“All that is said which is not necessary to the decision of
an appeal given the facts and circumstances of the case is dicta.”).
At oral argument, Lett’s present counsel (who did not represent him in the
district court) invited us to import into the Rule 35(a) “clear error” measure the
plain error standard of Rule 52(b), as interpreted and applied in countless
decisions. The invitation is logically appealing because the narrow purpose of
Rule 35(a) dovetails nicely with the scope of the plain error rule. Before an error is
subject to correction under the plain error rule, it must be plain under controlling
precedent or in view of the unequivocally clear words of a statute or rule; it must
have adversely affected the outcome of the proceedings; and it must be such that
the failure to correct it would seriously affect the fairness, integrity or public
reputation of judicial proceedings. United States v. Olano, 507 U.S. 725, 732–37,
113 S. Ct. 1770, 1776–79 (1993); United States v. Rodriguez, 398 F.3d 1291, 1298
(11th Cir. 2005). If an error meets all those requirements, it is also the kind of
obvious error that “would almost certainly result in a remand of the case to the trial
court for further action” and would therefore come within the narrow scope of Rule
35(a). Fed. R. Crim. P. advisory committee’s notes (1991). As a margin note here,
19
we point out that the Supreme Court has described the plain error rule with
language that sounds like the Rule 35(a) “clear error” standard. In the Olano
opinion, for example, the Court said that the “plain” in plain error “is synonymous
with ‘clear’ or, equivalently, ‘obvious.’” 507 U.S. at 734, 113 S. Ct. at 1777.
All this may be well and good, but it does not help Lett. For the same
reasons that the district court’s view of the mandatory minimum requirements in
light of the safety valve provisions is not an obvious error or mistake that almost
certainly would have caused the sentence to be overturned on appeal, it is not plain
error. See United States v. Castro, 455 F.3d 1249, 1253 (11th Cir. 2006); United
States v. Lejarde-Rada, 319 F.3d 1288, 1291 (11th Cir. 2003); United States v.
Humphrey, 164 F.3d 585, 588 (11th Cir. 1999).
IV.
We agree with the district court’s recognition that the proper resolution of
the mandatory minimum and safety valve issue that prompted its Rule 35(a)
modification of Lett’s sentence is not clear. There is no decision on point from
any court, and reasonable people could differ about the matter. That means the
court’s initial understanding was not “an obvious error or mistake . . . which would
almost certainly result in a remand” if not corrected, which is the proper standard
of clarity under the rule. Fed. R. Crim. P. 35(a) advisory committee’s notes
20
(1991). The district court used Rule 35(a) to take another stab at interpreting the
applicable statutory and guideline provisions in light of the Booker decision, and
the committee notes forbid use of the rule for that purpose. Id. (The rule “is not
intended to afford the court the opportunity to reconsider the application or
interpretation of the sentencing guidelines.”).
We do not question the district court’s good faith in attempting to work its
way through the problem, and we are not unsympathetic to its desire to give Lett a
sentence less than the mandatory minimum. Our review, however, is de novo, and
our reading of Rule 35(a) requires that we vacate the court’s order re-sentencing
Lett and remand the case with instructions that it impose the original sentence of
sixty months to run concurrently on each count.
JUDGMENT VACATED AND REMANDED WITH INSTRUCTIONS.
21