FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                    UNITED STATES COURT OF APPEALS June 13, 2013
                                                                Elisabeth A. Shumaker
                                 TENTH CIRCUIT                      Clerk of Court



 UNITED STATES OF AMERICA,

               Plaintiff - Appellee,                     No. 12-1294
          v.                                               (D. Colo.)
 RONALD C. TENORIO,                           (D.C. No. 1:11-CR-00375-CMA-7)

               Defendant - Appellant.


                            ORDER AND JUDGMENT *


Before BRISCOE, BRORBY, and MURPHY, Circuit Judges.



I.    Introduction

      A multi-count indictment charged appellant Ronald C. Tenorio with drug

and firearm crimes. Tenorio entered into a written agreement with the

Government and pleaded guilty to Counts Two, Three, and Fourteen. Consistent

with that agreement, the Government filed a written motion pursuant to USSG

§ 5K1.1 and 18 U.S.C. § 3553(e), agreeing to a downward departure from the

statutory minimum sentences for Counts Two and Three. After the Government


      *
        This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
orally amended its motion during the sentencing hearing, the district court

granted the departure and sentenced Tenorio to sixty months’ imprisonment on

the two counts. In addition, the court imposed a consecutive eighty-four-month

sentence for the Count Fourteen firearm conviction. See 18 U.S.C.

§ 924(c)(1)(A)(ii). Tenorio appeals, arguing the district court erred by refusing

to also depart downward from the statutory minimum sentence on Count

Fourteen.

      Exercising jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. §

3742(a), we affirm the sentence imposed by the district court.

II.   Background

      Tenorio was indicted on seven counts relating to his drug trafficking

activities. He pleaded guilty to three of those counts: two counts of knowing

possession with intent to distribute more than fifty grams of methamphetamine

(“Count Two” and “Count Three”) and one count of using a firearm during and in

relation to a federal felony drug trafficking crime (“Count Fourteen”). The

remaining counts were dismissed on the Government’s motion pursuant to the

terms of the written plea agreement. A Presentence Investigation Report (“PSR”)

was prepared prior to sentencing. The PSR calculated a base offense level of

thirty-four. It then reduced the offense level three levels pursuant to USSG §

3E1.1(a) for acceptance of responsibility, resulting in a total offense level of

thirty-one. The PSR assigned two criminal history points which corresponded to

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a criminal history category of II. The offense level combined with the criminal

history category resulted in an advisory guidelines sentencing range of 121 to 151

months’ imprisonment. The PSR correctly noted that the statutory minimum

sentence for Counts Two and Three is 120 months’ imprisonment and the

statutory minimum for Count Fourteen is eighty-four months consecutive to any

other sentence imposed.

      Before sentencing, the Government filed a motion asking the district court

to depart downward to forty percent below the bottom of the advisory guidelines

range for Counts Two and Three. The Government’s motion was consistent with

the terms of the plea agreement which states, in part: “[T]he Government

anticipates filing a § 5K1.1 and Section 3553(e) motion calling for a reduction of

the Defendant’s sentence to imprisonment from the otherwise applicable guideline

and statutory minimum mandatory sentences for Count Two and Count Three

based on substantial cooperation and assistance . . . .” Tenorio also filed a

presentencing motion, asking for both a downward departure and a downward

variance based on his extraordinary physical impairment. He requested a

sentence of not more than sixty months’ imprisonment.

      During the sentencing hearing, the district court recognized it lacked

discretion to depart or vary below the statutory minimum of 120 months in the

absence of a motion by the Government based on Tenorio’s substantial assistance.

See 18 U.S.C. § 3553(e) (“Upon motion of the Government, the court shall have

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the authority 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.”);

see also United States v. A.B., 

, 1280 (10th Cir. 2008) (“As a matter

of law, the district court [is] not authorized . . . to consider factors other than

substantial assistance in sentencing below the statutory minimum.”). The

Government’s motion recommended a departure to approximately seventy-two

months’ imprisonment on the basis of substantial assistance. The Government,

however, orally amended its motion during the hearing to recommend a departure

of approximately fifty-one percent below the bottom of the advisory guidelines

range, or a sentence of sixty months. The district court indicated its inclination to

grant the Government’s motion and depart to a sentence of sixty months on

Counts Two and Three. It also clearly recognized the Government’s motion did

not authorize any departure from the consecutive, statutory minimum mandatory

sentence of eighty-four months on Count Fourteen.

      Before imposing sentence, the court heard from Tenorio’s attorney who

argued the Government’s motion also related to the eighty-four-month

consecutive sentence on the firearm charge. The district court refused to depart

from the eighty-four-month sentence, stating it had no authority to depart below a

statutory sentence even if the Government so moved. But see United States v.

Campbell, 

, 175 (10th Cir. 1993) (holding a district court may depart

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below a statutory mandatory minimum upon motion of the Government). The

court sentenced Tenorio to sixty months’ imprisonment as to Counts Two and

Three, both terms to run concurrently, and a term of eighty-four months as to

Count Fourteen, that term to run consecutively to the sixty months. Tenorio

appeals the sentence imposed as to Count Fourteen, arguing the district court

erred by refusing to depart below the statutory minimum of eighty-four months.

III.   Discussion

       This court reviews de novo a district court’s decision that it lacks authority

to grant a downward departure. See United States v. Maples, 

, 37 (10th

Cir. 1996) (addressing downward departures from guidelines sentences); see also

United States v. Fonseca, 

, 1112 (10th Cir. 2007) (holding the

paradigm for reviewing downward departures continues to apply after the

Supreme Court’s decision in Booker). Tenorio argues the district court refused to

depart downward from the eighty-four-month sentence because it erroneously

believed it lacked discretion to depart from the minimum mandatory sentence

prescribed by 18 U.S.C. § 924(c) even if the Government moved for a departure

pursuant to § 5K1.1 and 18 U.S.C. § 3553(e). He asserts the plain language of §

3553(e) permits such a downward departure and applies generally to all minimum

sentences established by statute, including the eighty-four-month sentence

established by § 924(c)(1)(A)(ii). See United States v. James, 

, 248

(5th Cir. 2006) (holding “the district court had the authority to depart below the

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statutory minimum of section 924(c) based on the Government’s section 3553(e)

motion”). The Government does not disagree. Instead, the Government asserts

any error committed by the district court was harmless because the court lacked

authority to depart downward for a wholly independent reason—the

Government’s § 5K1.1 motion does not apply to Count Fourteen.

      Despite Tenorio’s assertions to the contrary, the record fully supports the

Government’s position. The plea agreement contemplates that the Government’s

§ 5K1.1 motion will not apply to Count Fourteen, stating, in part: “[T]he parties

stipulate and agree that as to Count Fourteen the defendant should receive the

seven year mandatory consecutive sentence for brandishing while using a firearm

during a drug trafficking offense.” The § 5K1.1 motion does not mention Count

Fourteen, and specifically states the reduction sought is “in accordance with the

plea agreement.” At the outset of the sentencing hearing, the district court asked

the Government whether its motion applied to the statutory mandatory sentence

for Count Fourteen and the Government confirmed that it did not. Tenorio asserts

the Government’s oral amendment of its motion extended the motion to

encompass Count Fourteen as well as Counts Two and Three. The record

provides no support for this assertion, instead confirming the motion was

amended only to increase the amount of the departure on Counts Two and Three.

      In the absence of a motion from the Government or some other statutory

exception, a district court does not have authority to sentence a defendant below a

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statutory minimum. A.B., 529 F.3d at 1280. Because no such motion was made

with respect to Count Fourteen, the district court had no authority to depart below

the eighty-four-month sentence prescribed by § 924(c)(ii).

IV.   Conclusion

      The sentence imposed by the district court is affirmed.

                                          ENTERED FOR THE COURT


                                          Michael R. Murphy
                                          Circuit Judge




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