                               UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                               No. 05-4176



UNITED STATES OF AMERICA,

                                                 Plaintiff - Appellant,

     versus


PATRICIA GONZALEZ, a/k/a Pat,

                                                  Defendant - Appellee.


Appeal from the United States District Court for the Western
District of Virginia, at Roanoke. James C. Turk, Senior District
Judge. (CR-03-114)


Argued:   September 19, 2005                 Decided:   October 26, 2005


Before WILKINSON and MOTZ, Circuit Judges, and R. Bryan HARWELL,
United States District Judge for the District of South Carolina,
sitting by designation.


Vacated and remanded by unpublished per curiam opinion.


ARGUED: Anthony Paul Giorno, Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Roanoke, Virginia, for
Appellant.   John Palmer Fishwick, Jr., LICHTENSTEIN, FISHWICK &
JOHNSON, P.L.C., Roanoke, Virginia, for Appellee. ON BRIEF: John
L. Brownlee, United States Attorney, Roanoke, Virginia, for
Appellant.


Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

     Although the Government did not move for a downward departure

pursuant   to   18   U.S.C.   §   3553(e)   (2005),      the   district   court

sentenced Patricia Gonzalez below the statutorily mandated minimum.

The Government appeals. For the reasons that follow, we vacate and

remand for re-sentencing.



                                     I.

     Gonzalez pled guilty to one count of conspiracy to possess

with intent to distribute fifty grams or more of methamphetamine

and 100 kilograms or more of marijuana.                 As part of the plea

agreement,    the    Government   agreed    that   it    would   not   seek   an

enhancement for Gonzalez’s prior drug conviction or for possession

of a firearm in connection with the offense.             Consequently, under

21 U.S.C. § 841 (2002), the mandatory minimum term of imprisonment

for the crime charged was ten years.1

     The plea agreement provided that Gonzalez might “be given an

opportunity to earn ‘substantial assistance’ credit pursuant to

Section 5K1.1 of the Sentencing Guidelines, Title 18 United States

Code, Section 3553(e) and Rule 35(b) of the Federal Rules of

Criminal Procedure.”       The agreement further provided that “ANY



     1
      If the government had sought the enhancement for Gonzalez’s
prior drug conviction, the statutory mandatory minimum sentence for
the current offense would have been twenty years, rather than ten.
21 U.S.C. § 841(a)(1), (b)(1)(A).

                                     -2-
SUBSTANTIAL   ASSISTANCE    MOTION    MAY   BE   LIMITED.”    (emphasis   in

original).    In addition, the plea agreement provided that it was

within the “sole discretion” of the United States Attorney to make

a motion for substantial assistance, and that absent such a motion,

“the Court cannot reduce the sentence below the Guidelines or

statutorily mandated minimum sentence.”

      The presentence investigation report recommended that Gonzalez

be given a total offense level of 34, and calculated a criminal

history category of II; as a result, the suggested sentencing range

under the Guidelines was 168 to 210 months.2         Prior to sentencing,

the   Government   moved   for   substantial     assistance   consideration

pursuant to the U.S.S.G. § 5K1.1 (2004),         requesting that Gonzalez

receive “the benefit of a sentencing departure from the minimum

guideline level otherwise found to apply AND EXPRESSLY EXCLUDING

departure from the statutory minimum.” (emphasis in original). The

Government did not make any motion under 18 U.S.C. § 3553(e).




      2
      The report suggested that Gonzalez be given a two-level
enhancement because of the characteristics of the drug involved in
her offense and a three-level enhancement for her role in the
offense.   Gonzalez objected, and continues to object, to these
enhancements as contrary to United States v. Booker, 125 S. Ct. 738
(2005); she asserts that she did not admit the underlying facts in
her plea agreement and therefore, they could not be considered in
setting the offense level. Because the district court imposed a
sentence (eighty-four months) far below the Guideline range even
without the enhancements (135 to 168 months), Gonzalez’s Booker
argument provides her no relief. See United States v. White, 405
F.3d 208 (4th Cir. 2005).

                                     -3-
      Nevertheless, the district court sentenced Gonzalez to eighty-

four months imprisonment, a sentence falling below the statutory

mandatory   minimum    term       of   ten   years.     The   Government    timely

appealed.



                                         II.

      Whether the district court erred in imposing a sentence below

the statutory mandatory minimum for the offense charged constitutes

a question of law that we review de novo.              United States v. Cheek,

94 F.3d 136, 140 (4th Cir. 1996).

      Section     3553(e)    provides        that:    “[u]pon    motion    of   the

Government, the court shall have 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.” 18

U.S.C.A. § 3553(e). A separate and distinct provision in the law--

U.S.S.G. § 5K1.1--provides that, “[u]pon 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.”

      Gonzalez maintains that the district court could properly

sentence    her   below     the    statutory     mandatory      minimum   and   the




                                         -4-
guidelines range as long as the Government filed any motion for

substantial assistance consideration.       We disagree.3

     In Melendez v. United States, 518 U.S. 120 (1996), the Supreme

Court analyzed the relationship between § 3553(e) and § 5K1.1.

Specifically,    the   Court   addressed   the   question   of   whether   a

government motion made under § 5K1.1 vested the district court with

authority to depart below the statutory mandatory minimum sentence

for the charged offense.       In holding that it did not, the Court

explained that

     nothing in § 3553(e) suggests that a district court has
     power to impose a sentence below the statutory minimum to
     reflect a defendant’s cooperation when the Government has
     not authorized a sentence, but has instead moved for a
     departure only from the applicable Guidelines range. . .
     .   Moreover, we do not read § 5K1.1 as attempting to
     exercise this nonexistent authority.

Id. at 126-27.     The Melendez Court held that before a district

court could sentence below a statutory mandatory minimum, the




     3
      Gonzalez also argues that the terms of the plea agreement are
ambiguous. This contention rests on the following phrase in the
agreement: “I understand that if the United States does not make
the motion, then the Court cannot reduce the sentence below the
Guidelines or statutorily mandated minimum sentence.” (emphasis
added). Gonzalez maintains that the emphasized terms indicate that
a single motion under § 5K1.1, § 3553(e) or Rule 35(b) permits the
district court to depart from both the guidelines and the statutory
mandatory minimum. This argument fails too, for the plea agreement
unambiguously reserves to the Government the right to limit any
substantial assistance motion; in the agreement, Gonzalez
specifically agreed that she had “BEEN INFORMED BY THE UNITED
STATES ATTORNEY THAT ANY SUBSTANTIAL ASSISTANCE MOTION MAY BE
LIMITED.” (emphasis in original).

                                   -5-
Government must specifically move for such a departure.         Id. at

129-30.

       In United States v. Johnson, 393 F.3d 466 (4th Cir. 2004), we

applied Melendez and recognized that the particular type of motion

for substantial assistance consideration determines the type of

departure a district court is authorized to make.        We explained

that

       [w]hen a statutory minimum sentence is involved in a
       case, a § 5K1.1 motion is less defendant-friendly than a
       § 3553(e) motion. A § 3553(e) motion allows the district
       court to depart below both the statutory minimum sentence
       and the low-end of the Guideline range.       However, a
       § 5K1.1 motion does not allow the court to depart below
       the statutory minimum sentence.

Id. at 470 n.4 (second emphasis added).

       In this case, the Government neither explicitly nor implicitly

made a motion under § 3553(e).      In its pre-sentence motion for

substantial    assistance   consideration,   the   Government   moved,

pursuant to § 5K1.1 only, that Gonzalez “be accorded the benefit of

a sentencing departure from the minimum Guideline level otherwise

found to apply AND EXPRESSLY EXCLUDING departure from the statutory

minimum.” (emphasis in original).      Furthermore, at the sentencing

hearing, the Government also indicated it moved pursuant only to

§ 5K1.1 and not § 3553(e).    Thus, both in writing and orally, the

Government disclaimed any intention to move under § 3553(e).

Absent such a motion, the district court lacked authority to




                                 -6-
sentence Gonzalez below the statutory mandatory minimum of ten

years.



                               III.

     Alternatively,    Gonzalez         argues   that    18   U.S.C.A.

§ 3553(f)(2000) authorized the district court to depart below the

statutory mandatory minimum sentence.4       This statute, known as the

“safety valve” provision, provides that “[n]otwithstanding any

other provision of law,” in certain types of offenses, including

the drug offense with which Gonzalez was charged, “the court shall

impose a sentence . . . without regard to any statutory minimum

sentence” if a defendant satisfies certain enumerated factors.      18

U.S.C.A. § 3553(f).   Gonzalez asserts that she has met all of the

§ 3553(f) requirements and that therefore, the district court did

not err in sentencing her below the mandatory statutory minimum.

     To qualify for the safety valve provision, a defendant must

first show that she “does not have more than one criminal history

point, as determined under the sentencing guidelines.” 18 U.S.C.A.

§ 3553(f)(1).   Under U.S.S.G. § 4A1.1 (2004), three points are

added to the criminal history computation of a defendant “for each


     4
      U.S.S.G. § 5C1.2 (2004) has an analogous provision, providing
for “[l]imitation on applicability of statutory minimum sentences
in certain cases.”        The enumerated factors required for
consideration under this provision are the same as those required
under § 3553(f). Thus, the discussion above analyzing Gonzalez’s
claims under § 3553(f) apply with equal force to an analysis under
§ 5C1.2.

                                  -7-
prior sentence of imprisonment exceeding one year and one month.”

Because Gonzalez had been convicted of a crime in 1988 and given a

sentence of one to three years, the district court added three

points to her criminal history, thereby disqualifying her from

eligibility under the safety valve provision.

     Gonzalez maintains that, because she was paroled in 1988 after

four months, only the time she actually served should be considered

in determining her eligibility for sentencing under the safety

valve provision.     Neither the Guidelines nor the case law permit

such a holding.

     U.S.S.G. § 4A1.2(b) defines “sentence of imprisonment” as used

in § 4A1.1 to calculate a criminal history category as “the maximum

sentence imposed.”    In Application Note 2 to that guideline, the

Commission explains that “criminal history points are based on the

sentence pronounced, not the length of time actually served.”

U.S.S.G. § 4A1.2, cmt.2 (2004).    Only when a state court suspends

a sentence may a federal court use the time actually served to

calculate the criminal history category.     See, United States v.

Adams, 988 F.2d 493, 497 n.5 (4th Cir. 1993) (explaining that the

applicable sentence of imprisonment under § 4A1.2 is the time not

suspended by a state court).

     We note that many of our sister circuits have reached a

similar conclusion. See, e.g. United States v. Carrasco-Mateo, 389

F.3d 239, 246 (1st Cir. 2004) (explaining that the Sentencing


                                  -8-
Commission “explicitly rejects” the argument that under § 4A1.1,

the sentence      of imprisonment should be calculated based on time

served, rather than on the actual sentence of incarceration);

United   States    v.   Frias,   338   F.3d   206,   210   (3rd   Cir.   2003)

(explaining that the term “sentence of imprisonment” in Chapter 4

of the Guidelines means the maximum sentence for which a defendant

may be imprisoned);      United States v. DePriest, 6 F.3d 1201, 1215

(7th Cir. 1993) (holding that the “‘sentence of imprisonment’

equals the unsuspended portion” of the sentence, and that “it makes

no difference” whether the defendant actually serves the pronounced

sentence in order for it to count in the criminal history category

calculation, and listing other cases that have held similarly);

United States v. Pedroli, 979 F.2d 116, 119 (8th Cir. 1992) (“[T]he

Guidelines direct that the length of sentence of imprisonment is

the stated maximum, not the length of time actually served,” and

“when the sentence imposed is indeterminate, we look to the maximum

possible length of time that could have been served.”).

     Because Gonzalez’s prior conviction carried a maximum sentence

of three years, she clearly cannot satisfy the first requirement of

the safety valve provision in 18 U.S.C.A. § 3553(f).                Thus, we

cannot uphold her sentence on this basis.




                                       -9-
                               IV.

     Finally, Gonzalez contends that departure below the mandatory

statutory minimum sentence was appropriate under U.S.S.G. § 5H1.4

(2004), which provides that “an extraordinary physical impairment

may be a reason to depart downward.”   This provision refers only to

sentences based on guidelines factors; it does not give a court

license to depart downward from a statutory mandatory minimum.

Therefore, § 5H1.4 did not authorize the district court to sentence

Gonzalez below the statutorily mandated ten-year term.



                                V.

     For all of the reasons set forth within, we vacate the eighty-

four month sentence imposed by the district court and remand the

case for re-sentencing.



                                               VACATED AND REMANDED




                               -10-
