                                                                             PUBLISH


                      IN THE UNITED STATES COURT OF APPEALS

                               FOR THE ELEVENTH CIRCUIT
                                                                             FILED
                                                                     U.S. COURT OF APPEALS
                                  _______________________              ELEVENTH CIRCUIT
                                                                            06/25/99
                                        No. 98-8491                     THOMAS K. KAHN
                                  _______________________                    CLERK

                                 D. C. Docket No. 96-CR-23-7




UNITED STATES OF AMERICA,

                                                                   Plaintiff-Appellee,

                                     versus


HERSCHEL HEAD, JR.,
a.k.a. “JR”,

                                                                   Defendant-Appellant.


                                 _________________________

                          Appeal from the United States District Court
                             for the Southern District of Georgia
                               _________________________
                                       (June 25, 1999)

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

KRAVITCH, Senior Circuit Judge:




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

       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, 518 U.S. 120, 116 S. Ct. 2057 (1996).

                                               2
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, 69 F.3d 1553, 1556 (11th Cir. 1995); United States v.

Hayes, 5 F.3d 292, 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, 36 F.3d

1050 (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



       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, 102 F.3d 466, 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. Id.

                                                 3
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, 110 F.3d 530, 532-34 (8th Cir. 1997). The Schaffer court

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

below the 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




       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).

                                               4
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 Schaffer,

110 F.3d at 533-34.

       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 70 to 87 months, the district court

improperly ignored section 3553(e)'s instruction to impose a sentence in accordance




       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 Schaffer, 110 F.3d at 533 (relying upon § 2K5.1); Aponte, 36 F.3d at 1051-52
(relying upon 2K2.1(a)(7)).

                                                5
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, 5 F.3d 292 (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. Id. at 294. 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. Id. at 295. See also United States v. Padilla, 23 F.3d 1220, 1222 & n.3 (7th

Cir. 1994) (citing Hayes with approval).




       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).

                                              6
        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 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


                                             7
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).

                                                8
