                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                     ___________

                                     No. 98-3637
                                     ___________

United States of America,                 *
                                          *
             Appellee,                    *
                                          * Appeal from the United States
      v.                                  * District Court for the
                                          * Eastern District of Arkansas.
Roberto Villar,                           *
                                          *
             Appellant.                   *
                                     ___________

                              Submitted: May 11, 1999

                                   Filed: August 24, 1999
                                    ___________

Before WOLLMAN, Chief Judge, BEAM, and MURPHY, Circuit Judges.
                             ___________

WOLLMAN, Chief Judge.

      Roberto Villar appeals from his fifteen-year sentence for being a felon in
possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(e). We affirm.

        On April 30, 1997, two law enforcement officers found a loaded .12 gauge
sawed-off shotgun and several shotgun shells in Villar’s residence. Villar later pleaded
guilty to being a felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1)
and 924(e). Because he had at least three prior felony convictions, Villar was subject
to the statutory minimum sentence of fifteen years’ imprisonment under 18 U.S.C. §
924(e).

       The presentence report suggested an imprisonment range of 188 to 235 months
based on an offense level of 31 and a category VI criminal history. Villar moved the
district court1 for a downward departure pursuant to U.S.S.G. § 4A1.3 prior to
sentencing. The district court granted Villar’s motion, finding that the criminal history
over-represented the seriousness of Villar’s past criminal conduct. In imposing the
statutory minimum sentence, the district court stated that but for the required minimum
sentence, it would have sentenced Villar to a shorter term of imprisonment. Villar
contends on appeal that the district court erred when it imposed the statutory minimum
sentence and, alternatively, that the fifteen year sentence constitutes cruel and unusual
punishment.

     Villar argues that the district court could have departed below the statutory
minimum under 18 U.S.C. § 3551(a), which states:

      Except as otherwise specifically provided, a defendant who has been
      found guilty of an offense described in any Federal statute . . . shall be
      sentenced in accordance with the provisions of this chapter so as to
      achieve the purposes set forth in subparagraphs (A) through (D) of section
      3553(a)(2) to the extent that they are applicable in light of all the
      circumstances of the case.

Villar contends that the last sentence of section 3551(a) is ambiguous because it is
unclear whether the pronoun “they” refers to “the purposes,” “subparagraphs,” or “the
provisions of this chapter.” This reading of the statute, however, ignores the first
words, “except as otherwise specifically provided.” 18 U.S.C. § 924(e) specifically


      1
        The Honorable Susan Webber Wright, Chief Judge, United States District Court
for the Eastern District of Arkansas.

                                          -2-
provides for a fifteen-year mandatory minimum sentence for any convicted felon in
possession of a firearm, and we have held that a sentencing court ordinarily may not
depart below a statutory minimum. See United States v. Rudolph , 970 F.2d 467, 470
(8th Cir. 1992). The only authority for the district court to depart below the statutorily
mandated minimum sentence is found in 18 U.S.C. §§ 3553(e) and (f), which apply
only when the government makes a motion for substantial assistance or when the
defendant qualifies under the safety valve provision, neither of which conditions exists
in Villar’s case. See United States v. Rodriguez-Morales, 958 F.2d 1441, 1444 (8th
Cir. 1992) (finding that the only authority to depart below a statutory minimum was
section 3553(e)); Rudolph, 970 F.2d at 470 (same).

       Although Villar argues that U.S.S.G. § 4A1.3 authorizes a departure in his case,
departure provisions under the Sentencing Guidelines do not permit a sentencing court
to depart below a statutory minimum. See United States v. Polanco, 53 F.3d 893, 897
(8th Cir. 1995) (finding that U.S.S.G. § 5K2.0 permitted a departure from the guideline
range but not from the statutory minimum); Rodriguez-Morales, 958 F.2d at 1444
(holding that U.S.S.G. § 5K1.1 did not provide for a departure below the statutory
minimum sentence, only a departure below the guideline range).

       Villar’s argument that a term of fifteen-years’ imprisonment constitutes cruel and
unusual punishment under the Eighth Amendment is foreclosed by our decision in
Rudolph. See 970 F.2d at 470 (finding that the mandatory minimum sentence of fifteen
years’ imprisonment under section 924(e) does not violate the Eighth Amendment).

      The judgment is affirmed.




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A true copy.

      Attest:

         CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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