UNITED STATES of America, Plaintiff-Appellee,

                                                       v.

                           Herschel HEAD, Jr., a.k.a. "Jr", Defendant-Appellant.

                                                 No. 98-8491.

                                       United States Court of Appeals,

                                               Eleventh Circuit.

                                                 June 25, 1999.

Appeal from the United States District Court for the Southern District of Georgia. (No. CR 296-23), Anthony
A. Alaimo, Judge.

Before BARKETT, Circuit Judge, and KRAVITCH and MAGILL*, Senior Circuit Judges.

        KRAVITCH, Senior Circuit Judge:

        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



   *
    Honorable Frank J. Magill, Senior U.S. Circuit Judge for the Eighth Circuit, sitting by designation.
   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, 

, 

, 

(1996).
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 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, 

, 1556 (11th Cir.1995); United

States v. Hayes, 

, 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, 

(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 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, 

, 532-34 (8th Cir.1997). The

Schaffer court considered the defendant's argument that section 3553(e), which authorizes a sentence below



   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, 

, 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. 

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 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 

.

          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


   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).
   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 

(relying upon § 2K5.1); 

(relying upon 2K2.1(a)(7)).

                                                      3
70 to 87 months, the district court improperly ignored section 3553(e)'s instruction to impose a sentence in

accordance 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, 

(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. 

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. 

See also United States v. Padilla, 

, 1222 &

n. 3 (7th Cir.1994) (citing Hayes with approval).

        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

   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).

                                                      4
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 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).

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