                                                                                                                           Opinions of the United
2000 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-21-2000

United States v Santiago
Precedential or Non-Precedential:

Docket 99-1158




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Recommended Citation
"United States v Santiago" (2000). 2000 Decisions. Paper 13.
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Filed December 20, 1999

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 99-1158

UNITED STATES OF AMERICA

v.

ROBERT SANTIAGO,

       Appellant

Appeal from the    United States District Court
for the Eastern    District of Pennsylvania
(D.C. Criminal.    No. 98-cr-00128-1)
District Judge:    Hon. Robert S. Gawthrop, III

Submitted Pursuant to Third Circuit LAR 34.1(a)
Friday, November 5, 1999

BEFORE: NYGAARD, McKEE, and GARTH, Circuit Judges.

(Filed: December 20, 1999)

       Louis T. Savino, Jr.
       Two Penn Center Plaza
       15th & John F. Kennedy Boulevard
       Suite 1516
       Philadelphia, PA 19102

       Attorney for Appellant
       Robert Santiago




       Michael R. Stiles
       United States Attorney
       Walter S. Batty, Jr.
       Assistant United States Attorney
       Chief of Appeals
       Patrick C. Askin
       Special Assistant United States
        Attorney
       Office of the United States Attorney
       Room 1250
       615 Chestnut Street
       Philadelphia, PA 19106

       Attorneys for Appellee
       United States of America
OPINION OF THE COURT

GARTH, Circuit Judge.

The District Court convicted Appellant Robert Santiago
("Santiago") on federal drug violations and subsequently
sentenced him to the required mandatory minimum of ten
years imprisonment. In this appeal, Santiago contends that
the District Court erred in denying his motion for a
downward departure from the mandatory minimum
sentence pursuant to section 5K2.0 of the United States
Sentencing Guidelines ("Sentencing Guidelines"). We will
affirm the sentence given by the District Court.

I

On February 18, 1998, federal agents recorded two
telephone conversations in which two men -- Santiago and
Angel Quinones -- discussed a cocaine transaction. The
next day, these same agents recorded three new
conversations through which the Santiago and Quinones
disclosed the specific location of the transaction--
Quinones's home in the 2100 block of Haworth Street in
Philadelphia.

Later that same day, Santiago arrived at Quinones's
home, and began to converse with Quinones as federal

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agents listened nearby. After Santiago presented Quinones
with $12,000, Quinones provided Santiago with a kilogram
of cocaine. The federal agents arrested Santiago once the
transaction was complete and he had left Quinones's home.

On March 24, 1998, a federal grand jury filed an
indictment against Santiago, alleging violations of 21 U.S.C.
S 841(a)(1), which prohibits the possession of a controlled
substance with the intent to distribute. Santiago initially
pled not guilty, but later entered a plea of guilty to this
charge. At the time, Santiago had been serving a term of
probation from a prior Pennsylvania drug conviction, and
as such, his federal offense operated as a probation
violation. Judge Legrome Davis of the Court of Common
Pleas for the City of Philadelphia sentenced Santiago to a
term of two to five years in the state prison system.

The District Court held Santiago's federal sentencing
hearing on February 16, 1999. Although the United States
Sentencing Guidelines provided for a sentencing range of
between 70-87 months incarceration, a prior federal drug
conviction subjected Santiago to a mandatory minimum
sentence of ten years in prison. See 21 U.S.C.
S 841(b)(1)(B). Santiago moved the District Court for a
downward departure from Sentencing Guidelines range and
the mandatory minimum sentence pursuant to section
5K2.0 of the Sentencing Guidelines, arguing that he had
been the victim of a shooting accident that initially left him
paralyzed. Santiago has regained the use of his legs, but
continues to experience medical difficulties.

Although sympathetic to Santiago's plight, the District
Court, in an order filed on February 17, 1999, sentenced
Santiago to 120 months imprisonment, to be served
concurrently with his state court sentence, and eight years
of supervised release. Santiago filed a timely notice of
appeal.

II

A

At the outset, we must determine whether we possess the
authority to entertain Santiago's claim of error. We have

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repeatedly held that this Court lacks jurisdiction to hear a
challenge to a District Court's ruling on a motion pursuant
to section 5K2.0 of the Sentencing Guidelines if the District
Court rested such a ruling on an exercise of discretion. See,
e.g., United States v. McBroom, 124 F.3d 533, 541 n.9 (3d
Cir. 1997); United States v. Mummert, 34 F.3d 201, 205 (3d
Cir. 1994). To the contrary, if the District Court "believe[s]
that a departure was legally impermissible under the
guidelines," we may exercise "jurisdiction to determine
whether the court's understanding of the guidelines was
correct." McBroom, 124 F.3d at 541.

In this matter, the District Court explicitly stated that it
believed that a downward departure, pursuant to section
5K2.0, from a mandatory minimum sentence was improper
as a matter of law. App. at 32-33. As a result, we may
entertain Santiago's challenge to the District Court's ruling.
Because the District Court's ruling therefore rests upon a
particular construction of the Sentencing Guidelines, we
exercise plenary review. See McBroom, 124 F.3d at 541;
United States v. Oser, 107 F.3d 1080, 1083 (3d Cir. 1997).

B

A District Court must generally provide sentences in
concert with the provisions of the Sentencing Guidelines.
See 18 U.S.C. S 3553(a)(4)(A). The court may, however,
deviate from the applicable Sentencing Guidelines range if
"there exists an aggravating or mitigating   circumstance of a
kind, or to a degree, not adequately taken   into
consideration by the Sentencing Commission   in formulating
the guidelines." Id. S 3553(b). The United   States Sentencing
Commission explicitly added this statutory   provision to the
Sentencing Guidelines at section 5K2.0.

Although section 5K2.0 consistently speaks in terms of a
departure from the Guidelines, using such a phrase no less
than eight times, see U.S.S.G. S 5K2.0, Santiago argues
that the provision also authorized the District Court to
effectuate a downward departure from the minimum
statutory sentence mandated for the crime of which he was
convicted. We do not agree. Any deviation from the
statutory minimum sentence can only be had through the

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specific procedures established through 18 U.S.C.
SS 3553(e), 3553(f), which are not applicable here.

At least four of our sister circuits concur. In United
States v. Polanco, 53 F.3d 893 (8th Cir. 1995), the Eighth
Circuit found that "[s]ection 3553(b) and guideline section
5K2.0 do not permit departure below the statutory
mandatory minimum . . . without a section 3553(e) motion
or the unconstitutional refusal of one . . . the District Court
had no authority to depart below the statutory minimum."
Id. at 897. Further, the Seventh Circuit has held that "a
departure from a minimum sentence prescribed by statute
... was available only on motion of the prosecutor under
section 3553(e)." United States v. Brigham, 977 F.2d 317,
320 (7th Cir. 1992) (emphasis added). Both the Fourth and
Ninth Circuits have issued similar holdings. See United
States v. Daniels, No. 98-4732, 1999 WL 496594, at *1 (4th
Cir. July 13, 1999); United States v. Valente, 961 F.2d 133
(9th Cir. 1992); cf. Melendez v. United States, 518 U.S. 120,
126-27 (1996) (holding that a District Court may not
provide a downward departure from a mandatory minimum
sentence through the auspices of U.S.S.G. S 5K1.1).

In support of his arguments of error, Santiago only cites
the Supreme Court's decision in Koon v. United States, 518
U.S. 81 (1996). Koon, however, only reinforces what the
plain language of section 5K2.0 explicitly states-- that a
District Court may depart from the applicable Guidelines
range if "certain aspects of the case [are] found unusual
enough for it to fall outside the heartland of cases in the
Guidelines." Id. at 98. Because the instant matter concerns
the application of a mandatory minimum sentence, rather
than the Guidelines, Koon provides Santiago with little
assistance.
Both the plain language of the relevant statutory and
Guidelines provisions, the context in which Congress has
placed such provisions, and the jurisprudence of a number
of our sister circuits all point in one direction: a District
Court lacks the authority to lower a mandatory minimum
sentence via section 5K2.0 of the Guidelines. We will
therefore affirm the sentence imposed by the District Court.

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A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

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