THE FEDERAL CORNER
December 2006
A Mandatory Minimum Sentence Bites the Dust
F. R. (Buck) Files, Jr.
Larry Lawyer had a problem. His client, Waldo Snerd, had been indicted for conspiracy to distribute 50 grams or more of methamphetamine or 500 grams or more of a mixture containing a detectable amount of methamphetamine in violation of 21 U.S.C. § § 841(a)(1) and 846 (“Count One”) and to possessing a firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c) (“Count Two”).
Because of his prior criminal record, Waldo had a criminal history category of two and was looking at a Guideline range of 151 – 188 months confinement for the drug count. On the firearm count, he was looking at a mandatory minimum sentence of 60 months. Waldo, though, had been helpful to the Government and Larry was familiar with U.S.S.G. § 5K1.1 and 18 U.S.C. § 3553(e):
- § 5K1.1: Upon motion of the Government stating that the defendant has provided substantial assistance in the investigation or prosecution of another person who has committed an offense, the court may depart from the guidelines…
- 18 U.S.C. § 3553(e): Upon motion of the Government, the court shall have the authority to impose a sentence below a level established by statute as a minimum sentence 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....
Larry knew that the United States Court of Appeal for the Fifth Circuit had not previously addressed whether a Government motion for downward departure based on § 3553(e) gives a district court the discretion to sentence an individual below the mandatory minimum of § 924(c)(1). In spite of this absence of authority, the Government agreed to file motions for downward departure from the Sentencing Guidelines and the statutory minimum on both counts pursuant to § 5K1.1 and 18 U.S.C. § 3553(e).
At the sentencing hearing, the district court granted both of the Government’s motions as to the drug count, departed from the prescribed Guideline range of 151-188 months and sentenced Waldo to 24 months imprisonment. On the firearm’s count, however, the district court determined that it had no authority to depart below the statutory minimum of § 924(c)(1); therefore, the judge sentenced Waldo to 60 months confinement and ordered that this sentence would run consecutive to the 24 month sentence imposed on the drug count.
The judge explained why he did not depart below the statutory minimum on the firearms count:
Count II is a little different. Count II has to do with the firearm possession in furtherance of a drug trafficking crime. The Court's interpretation is that that's a mandatory five years that's unaffected by Section 3553E or the 5K1 Motion. That is a special enhancement that runs on top of any sentence otherwise handed down. And that's the way I've interpreted it in other cases and I see no reason in this particular case to deviate from that particular stance. Other judges may have other ideas on that. I don't see anything anywhere in the U.S. 5th Circuit juris prudence [sic] indicating that the mandatory minimum five year enhancement to run consecutive to any other sentence handed down. It just appears mandatory under this set of circumstances to me.
Larry was convinced that the judge had erred and appealed Waldo’s sentence. It’s quiz time: Was the judge right? Could he have departed below the statutory minimum required by § 924(c)(1)? Could Waldo have received a sentence of less than 60 months on the firearms count if the judge thought that to be appropriate?
These questions were answered by a panel [Circuit Judges Smith, Wiener and Owen] of the United States Court of Appeals for the Fifth Circuit in a per curium opinion handed down on October 18, 2006. United States v. James, ____ F.3d ___, 2006 WL 2959818 (5th Cir. 2006). [Note: Waldo Snerd was really Michael Chad James and the district judge was the Hon. S. Maurice Hicks, Jr. of the United States District Court for the Western District of Louisiana.] Part of that opinion reads as follows:
This court ordinarily lacks authority to review a district court's refusal to depart below a statutory minimum, but we may review de novo a district court's decision that it lacked the authority to do so. The district court's statements at sentencing indicate a belief that it lacked authority to depart below the five-year sentence mandated by section 924(c)(1) despite the Government's section 3553(e) motion…
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Congress gave district courts the limited authority to sentence a cooperating defendant below a mandatory statutory minimum sentence in section 3553(e), which provides:
Upon motion of the Government, the court shall have the authority to impose a sentence below a level established by statute as a minimum sentence 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...
The district court was correct in determining that nothing in section 3553(e) gives a district court the authority to impose a section 924(c)(1) sentence concurrently with another sentence. Section 3553(e) does, however, give district courts the authority to sentence below the minimum level established by statute upon motion of the Government. Several other circuits have recognized, either implicitly or explicitly, that a district court has the authority to depart below a minimum sentence mandated by section 924(c)(1) after the Government files a section 3553(e) motion for substantial assistance. There is also 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 a sentence was appropriate. We hold that 18 U.S.C. § 3553(e) applies to the mandatory minimum sentences of 18 U.S.C. § 924(c)(1), and that a Government motion made pursuant to section 3553(e), requesting that the district court depart from the statutory minimums of section 924(c)(1), gives the district court the authority to depart from the section 924(c)(1) mandatory minimums.
Consequently, the 60-month sentence imposed by the district court for Count Two is VACATED and the case is REMANDED for the district court to determine whether to exercise its discretion to depart below the 60-month statutory minimum sentence in light of the Government's section 3553(e) motion.
In many cases, the Government has agreed not to prosecute an individual for a § 924(c)(1) offense because the mandatory minimum required by that statute frustrated “doing the right thing” for a cooperating defendant. In other cases, though, the Government has chosen to go forward with such a count in spite of the significant assistance given by a cooperating defendant. Now, in at least a small number of cases, United States District Judges have the latitude to go below the mandatory minimum and impose what they conclude to be an appropriate sentence under the authority of James.
I do believe that the Government’s lawyer in James should be commended for thinking outside the box and having the courage to ask Judge Hicks to impose a sentence below the statutory minimum of § 924(c)(1) in the absence of authority supporting such a motion. If he had not done this, James’ lawyer could never have gotten such a favorable result on appeal.
