                                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ____________

                                      No. 14-1240
                                     ____________

                           UNITED STATES OF AMERICA,

                                                            Appellant

                                           v.

       REYNALDO LOPEZ SALINAS, a/k/a ADRIAN ARANDA ALVARADO
                           ____________

                    On Appeal from the United States District Court
                        for the Western District of Pennsylvania
                                 (D.C. No. 11-cr-00185)
                    District Judge: Honorable Maurice B. Cohill, Jr.
                                     ____________

                      Submitted Under Third Circuit LAR 34.1(a)
                                 September 11, 2014

             Before: FISHER, JORDAN and HARDIMAN, Circuit Judges.

                              (Filed: September 16, 2014)
                                     ____________

                                       OPINION
                                     ____________

HARDIMAN, Circuit Judge.

      Reynaldo Salinas pleaded guilty to federal drug charges and was sentenced to 72

months in prison. The Government appeals, arguing that Salinas’s conviction is subject to

a 10-year mandatory minimum. We agree, and will vacate Salinas’s judgment of sentence
and remand for resentencing.

                                             I

       Salinas was arrested as part of a DEA investigation into Pittsburgh-area cocaine

distribution and charged, alongside eleven co-defendants, with one count of conspiracy to

distribute and possess with the intent to distribute 5 kilograms or more of cocaine, 21

U.S.C. § 846. In August 2013, Salinas pleaded guilty pursuant to a plea agreement in

which the Government agreed to recommend a sentence below the 120-month mandatory

minimum, provided the conditions in the federal sentencing “safety valve,” 18 U.S.C. §

3553(f), were satisfied. The plea agreement made clear that Salinas would not qualify for

the safety valve if he had more than 1 criminal history point under the U.S. Sentencing

Guidelines.1

       Following Salinas’s guilty plea, the U.S. Probation Office prepared a presentence

investigation report (PSR), in which it determined Salinas had 4 criminal history points: 1

point from a 2009 North Carolina guilty plea for driving while impaired and 3 points from

a 2000 Pennsylvania guilty plea for stalking and harassment. Neither Salinas nor the

Government objected to the PSR. Salinas later filed a sentencing memorandum stating

that at the time he pleaded guilty, both his counsel and the Government assumed he would

be eligible for the safety valve. However, by the time of sentencing, Salinas was no


       1
         This reflects a statutory requirement: a defendant with “more than 1 criminal
history point, as determined under the sentencing guidelines,” is ineligible for safety
valve relief. 18 U.S.C. § 3553(f)(1).
                                             2
longer under that impression: in his memo, he acknowledged that the stalking conviction

“may disqualify” him from safety valve eligibility and subject him to the mandatory

minimum. A49. Despite this, he did not seek to withdraw his guilty plea. Rather, he asked

the District Court and the Government to “find a way to do justice in this case,” which

“would include avoidance of the 10 year mandatory imprisonment.” A49. Specifically, he

argued that the stalking conviction “should be treated as ‘stale’ and therefore not count

against” him for sentencing purposes. A49–50.

       At sentencing, the District Court determined that Salinas’s total offense level was

29 and his criminal history category was III, resulting in a Guidelines range of 120 to 125

months’ imprisonment. Counsel for both parties informed the Court that they initially

thought the safety valve would apply. Candidly admitting that he was “hollering against

the wind” in light of the mandatory minimum, defense counsel asked the Court to

nonetheless consider a 70- to 87-month sentence—Salinas’s Guidelines range without the

stalking conviction—because “[t]en years does not do justice.” A64–65. Government

counsel also expressed reservations about the mandatory minimum, but noted that his

hands were tied:

       I don’t have the capacity to bargain away what the law is. We were under a
       misapprehension . . . that the record would yield a criminal history category
       of I. Once it became apparent that that was not the case, my ability to do
       anything about that evaporated. And I feel badly that that’s the case, but that
       is the case, and as a matter of law, I simply don’t have the power to engage
       in the agreement that we initially started down the road to do.

A65.
                                             3
       The District Court proceeded to discount the stalking conviction, noting that it was

14 years old and saying, “I am going to vary on this thing based on what I see as

[Salinas’s] performance to date,” including his work record and family situation. A66–67.

Government counsel explained to the Court that he had explored other sentencing

possibilities with his supervisors, but had been “given [his] marching orders” and had

been told to appeal “anything other than the mandatory sentence.” A67. “Well, so be it,

and someone else down the road will see if I’m wrong if this doesn’t sound right to the

powers that be,” the District Court replied. A67–68. The Court then imposed a 72-month

sentence, calling it “sufficient but not greater than necessary to achieve the intention of

the guidelines and of the sentencing code and the background of the Defendant.” A70. As

expected, this appeal followed.

                                              II

       Even in the post-Booker era of advisory Guidelines and considerable sentencing

discretion, we are constrained by the will of Congress, which “our Constitution entrusts

. . . with the power to define crimes and set punishment for those crimes.” United States v.

Kennedy, 682 F.3d 244, 260 (3d Cir. 2012) (citing Bell v. United States, 349 U.S. 81, 82

(1955)). Indeed, “Congress has the power to define criminal punishments without giving

the courts any sentencing discretion.” Chapman v. United States, 500 U.S. 453, 467

(1991). Although our role is always to do justice, we do not have unlimited latitude;

“[o]urs is a nation of laws, not judges.” United States v. Higdon, 638 F.3d 233, 247 (3d

                                              4
Cir. 2011). Subject to the limits of the Constitution, we must uphold legislative choices

on criminal punishment, “made as they are by our elected representatives.” Kennedy, 682

F.3d at 260. This is so regardless of whether we personally agree with those choices.

“Sentencing is one of the most difficult tasks a district court judge must perform,”

especially “when a judge believes that the punishment mandated by Congress is not a just

and proportional sanction for the conduct involved.” Id. But “[t]o the extent that the

District Court was dissatisfied with this state of affairs, the remedy lies with Congress.”

Id. Indeed, we note that in recent years Congress has acted to reduce mandatory

minimums for some drug offenses. See, e.g., United States v. Savani, 733 F.3d 56, 60 (3d

Cir. 2013) (describing the Fair Sentencing Act of 2010).

       As the law now stands, however, 21 U.S.C. § 841(b)(1)(A) states that a defendant

convicted of trafficking 5 kilograms or more of cocaine shall be sentenced to at least 10

years’ imprisonment—a punishment reflecting Congress’s view on the seriousness of the

crime. A district court cannot impose a sentence below that minimum unless the

Government files a substantial assistance motion, 18 U.S.C. § 3553(e), or the defendant

qualifies for the safety valve, 18 U.S.C. § 3553(f). It is undisputed that neither happened

here. Therefore, the 10-year mandatory minimum applies to Salinas’s conviction.

                                           * * *

       For the reasons stated, we will vacate Salinas’s judgment of sentence and remand

for resentencing in accordance with this opinion.

                                              5
