                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                                    File Name: 06a0293n.06
                                       Filed: April 27, 2006
                                            NO. 05-3422
                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                       )
                                                )
         Plaintiff-Appellee,                    )
                                                )
v.                                              )         ON APPEAL FROM THE UNITED
                                                )         STATES DISTRICT COURT FOR THE
FORREST H. SMITH,                               )         SOUTHERN DISTRICT OF OHIO
                                                )
                                                )                  OPINION
         Defendant-Appellant.                   )


         Before: DAUGHTREY and McKEAGUE, Circuit Judges, and McCALLA,* District
Judge.


         McCalla, District Judge. Defendant Forrest H. Smith appeals his sentence

imposed by the district court following a plea of guilty to four counts: (1) conspiracy to

distribute and possess with intent to distribute over 50 grams of cocaine base (21

U.S.C. §§ 841(a)(1), (b)(1)(A)(iii), and 846); (2) distribution of over 50 grams of cocaine

base (21 U.S.C. §§ 841(a)(1) and (b)(1)(A)(iii)); (3) possession with intent to distribute

more than 5 grams of cocaine base (21 U.S.C. §§ 841(a)(1) and (b)(1)(B)(iii)); and (4)

carrying a firearm in relation to a drug trafficking crime (18 U.S.C. § 924(c)(1)(A)(i)).

The district court imposed the statutory mandatory minimum sentence of 120 months’


         *
        The Hon. Jon Phipps McCalla, United States District Judge for the Western District of
Tennessee, sitting by designation.

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imprisonment on the drug conspiracy, distribution, and possession counts, to be served

concurrently, and the mandatory consecutive sentence of 60 months’ imprisonment

under 18 U.S.C. § 924(c).

       Smith raises four issues on appeal: (1) the district court erred by denying his

request for a downward departure on the basis that his criminal history category

overrepresented the seriousness of his past criminal conduct; (2) the district court failed

to recognize its authority to depart from the advisory sentencing guidelines under

Booker; (3) the government refused to file a substantial assistance motion in bad faith;

and (4) the 100:1 ratio for sentences for offenses involving crack cocaine versus those

involving powder cocaine is unconstitutional.

       For the reasons set forth below, we AFFIRM.

                         Background and Procedural History

       Smith and two companions were arrested on July 26, 2004, following Smith’s

sale of 118 grams of cocaine base to a cooperating witness working with the federal

Ohio Valley Drug Task Force. After their arrest, the police searched the car in which the

sale had transpired and found approximately eight grams of cocaine base on the center

console and a revolver on the floor of the back seat, where Smith had been sitting.

Smith and his codefendants were indicted on August 19, 2004, in the Southern District

of Ohio. Smith entered a plea of guilty to all counts in the indictment on December 13,

2004. The government did not file a substantial assistance motion, and there was no

plea agreement.

       The district court determined that the appropriate sentencing guidelines range on

the drug counts was 121 to 151 months’ imprisonment, which reflected an offense level

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of 29 and a criminal history category of IV. The court sentenced Smith to the statutory

mandatory minimum of 120 months’ imprisonment on the drug conspiracy, distribution,

and possession counts, to be served concurrently, and to the mandatory consecutive

sentence of 60 months’ imprisonment on the firearm count. Smith’s total term of

imprisonment is 180 months.

                                        Discussion

       Smith’s first argument on appeal is that the district court should have granted his

request for a downward departure on the basis that his criminal history category

overrepresented the seriousness of his past criminal conduct. The United States

Sentencing Guidelines permit a downward departure from the guideline sentence range

when a defendant’s criminal history category significantly overrepresents the

seriousness of his criminal history or the likelihood that he will commit other crimes.

U.S. SENTENCING GUIDELINES MANUAL § 4A1.3 (2004). This Court has “consistently held

that the decision by a district court not to depart downwards from the Guidelines is not

reviewable on appeal unless the record reflects that the district court was not aware of

or did not understand its discretion to make such a departure.” United States v. Butler,

207 F.3d 839, 843 (6th Cir. 2000). In this case, the record reflects that the district court

was aware of its authority to depart downwards, but declined to do so for the reasons

explained at sentencing. Accordingly, we do not have jurisdiction to review the district

court’s determination.

       Smith next contends that the district court failed to recognize its authority to

impose a sentence below the applicable guideline range pursuant to the Supreme

Court’s recent holding in United States v. Booker, 543 U.S. 220 (2005). To the contrary,

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the record indicates that the district court explicitly recognized that under Booker, the

sentencing guidelines are advisory and not mandatory. Moreover, the district court did

in fact depart downwards from the guidelines range of 121 to 151 months and imposed

concurrent sentences of 120 months’ imprisonment on the drug counts. Finally, as the

district court correctly noted, Booker did not give the district court the authority to

impose a sentence below the statutory mandatory minimum, which was 120 months on

the drug counts and a consecutive sentence of 60 months on the firearm count. This

Court has made clear that when a defendant is sentenced to the statutory mandatory

minimum, “the application of Booker could not result in a decreased sentence.” United

States v. Joiner, 123 Fed. Appx. 681, 683 (6th Cir. Feb. 14, 2005); see also United

States v. Johnson, 129 Fed. Appx. 966, 972 (6th Cir. May 5, 2005). Since Smith

received the mandatory minimum sentences prescribed by statute, Booker does not

apply.

         While he does not raise it as a separate issue in his brief, Smith also challenges

the government’s alleged bad faith refusal to file a substantial assistance downward

departure motion. The district courts do not have the authority to review the

government’s refusal to file a substantial assistance motion upon a defendant’s

allegation of bad faith. United States v. Moore, 225 F.3d 637, 641 (6th Cir. 2000). They

have the authority to review the government’s refusal to file a substantial assistance

motion only “if they find that the refusal was based on an unconstitutional motive” such

as the defendant’s race or religion. United States v. Rashid, 274 F.3d 407, 418 (6th Cir.

2001)(quoting Wade v. United States, 504 U.S. 181, 185-86 (1992)). Because Smith

has not alleged – either on appeal or before the district court – that the government was

                                              -4-
motivated by an unconstitutional motive in failing to file a downward departure motion,

we do not have the authority to review this argument on appeal.

       Finally, Smith argues that the 100:1 ratio used to determine sentences for crack

cocaine offenses violates the constitutional guarantees of equal protection and due

process as well as state and federal civil rights laws. This argument does not provide

Smith a basis upon which to appeal his sentence, as it is well established that the 100:1

ratio is constitutional. See, e.g., United States v. Blair, 214 F.3d 690, 702 (6th Cir.

2000); United States v. Hill, 79 F.3d 1477, 1488-89 (6th Cir.1996).

       For the reasons set forth above, we AFFIRM Smith’s sentence.




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