                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                  ___________

                                  No. 03-3455
                                  ___________

United States of America,              *
                                       *
            Appellee,                  *
                                       * Appeal from the United States
      v.                               * District Court for the
                                       * Northern District of Iowa.
Sheila Ann Anton,                      *
                                       *
            Appellant.                 *
                                  ___________

                             Submitted: May 13, 2004
                                Filed: August 16, 2004
                                 ___________

Before LOKEN, Chief Judge, SMITH, Circuit Judge, and DORR,1 District Judge.
                              ___________

SMITH, Circuit Judge.

       Sheila Anton pleaded guilty to possession of 864 pills containing a total of
51.84 grams of pseudoephedrine, in violation of 21 U.S.C. § 841(c)(2). The district
court2 sentenced Anton to seventy months' imprisonment pursuant to the United
States Sentencing Guidelines ("U.S.S.G.") § 2D1.11. Anton appeals her sentence


      1
        The Honorable Richard E. Dorr, United States District Judge for the Western
District of Missouri, sitting by designation.
      2
        The Honorable Linda R. Reade, United States District Judge for the Northern
District of Iowa.
contending that she should have received a safety-valve reduction and a downward
departure. We affirm.

                                         I.
       On July 10, 2002, law enforcement officers apprehended Anton at a Wal-Mart
in Dubuque, Iowa. Police had discovered that Darlis Lyle Miller and Anton had
purchased eighteen boxes of pseudoephedrine tablets from the store. After police read
Anton her Miranda rights, Anton admitted that she bought pseudoephedrine pills with
Miller and traded the pills for methamphetamine. Anton also admitted to purchasing
large quantities of pseudoephedrine tablets from several discount stores over the prior
year. Anton used personal checks to purchase the pseudoephedrine, and she was
always accompanied by Miller. There was no evidence that Anton ever participated
in methamphetamine manufacturing or distributing activities.

       Anton was initially charged in state court. She entered into an agreement with
the state prosecutor in which she was to receive a deferred judgment. When Anton
appeared in state court to enter her plea, the state prosecutor notified her that her state
charges had been dismissed and that her case was referred to the United States
Attorney’s Office for prosecution.

      On October 11, 2002, Anton and Miller were charged in a one-count
indictment with possessing pseudoephedrine–a List I Chemical–knowing, intending,
and having reasonable cause to believe it would be used to manufacture
methamphetamine, a violation of 21 U.S.C. § 841(c)(2). Trial was set for December
2, 2002.

      Anton pleaded guilty on December 31, 2002. The district court entered
judgment and sentenced Anton to seventy months' imprisonment on September 19,
2003. Anton was sentenced pursuant to U.S.S.G. § 2D1.11, thus the court found that
Anton was not eligible for a two-level reduction under § 2D1.1(b)(6) ("safety-valve

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guideline") or a § 2D1.1(a)(3) ("mitigating-role cap") base-offense-level cap. The
court declined to grant Anton's motions for a downward departure. Anton timely
appealed.

                                          II.
                      A. "Safety Valve" Sentence Reduction
       Anton contends that she should have received a safety-valve reduction under
U.S.S.G. § 5C1.2, 18 U.S.C. § 3553 because she met the criteria provided. We review
de novo a district court's interpretation and application of the Guidelines. United
States v. Hampton, 346 F.3d 813, 814 (8th Cir. 2003).

       A defendant sentenced under U.S.S.G. § 2D1.1 is eligible for a two-level
sentence reduction if she meets certain criteria listed in § 5C1.2 of the Guidelines and
her offense level is 26 or greater. United States v. Saffo, 227 F.3d 1260, 1273 (10th
Cir. 2000).3 Here, it is undisputed that Anton meets the § 5C1.2 criteria. However, the


      3
          The five criteria included in the Guideline specify that:

      (1) the defendant does not have more than 1 criminal history point, as
      determined under the sentencing guidelines;
      (2) the defendant did not use violence or credible threats of violence or
      possess a firearm or other dangerous weapon (or induce another
      participant to do so) in connection with the offense;
      (3) the offense did not result in death or serious bodily injury to any
      person;
      (4) the defendant was not an organizer, leader, manager, or supervisor
      of others in the offense, as determined under the sentencing guidelines
      and was not engaged in a continuing criminal enterprise, as defined in
      21 U.S.C. § 848; and
      (5) not later than the time of the sentencing hearing, the defendant has
      truthfully provided to the Government all information and evidence the
      defendant has concerning the offense or offenses that were part of the
      same course of conduct or of a common scheme or plan, but the fact that

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district court found that Anton was not eligible for the two-level reduction in
U.S.S.G. § 2D1.1 because she was sentenced under § 2D1.11. We agree. Section
2D1.11 does not provide for a two-level reduction if the criteria from § 5C1.2 are
met. Saffo, 227 F.3d at 1273; U.S.S.G. § 2D1.11. We also note that safety-valve relief
is intended to avoid imposition of mandatory minimum sentences. Anton's sentence
under 21 U.S.C. § 841(c)(2) did not involve imposition of a mandatory minimum
sentence.

       "When construing the Guidelines, we look first to the plain language, and
where that is unambiguous we need look no further." United States v. Ashley, 342
F.3d 850, 852 (8th Cir. 2003) (citing United States v. Andreas, 216 F.3d 645, 676 (7th
Cir. 2000); United States v. Mann, 315 F.3d 1054, 1055 (8th Cir. 2003) ("Unless the
sentencing guidelines provide a special definition of the particular term whose
meaning is in issue, we give the language of the guidelines its ordinary meaning.").
Although § 2D1.1 expressly provides for a possible two-level reduction, the plain
language of the applicable Guideline section–§ 2D1.11–makes no mention of the two-
level safety valve reduction. We will not presume the Sentencing Commission
intended otherwise.

      Anton was convicted under 21 U.S.C. § 841(c)(2). Section 841(c)(2) requires
her to be sentenced pursuant to § 2D1.11 of the Guidelines. Section 2D1.1 is
inapplicable to the offense to which Anton pleaded guilty. Accordingly, we reject




      the defendant has no relevant or useful other information to provide or
      that the Government is already aware of the information shall not
      preclude a determination by the court that the defendant has complied
      with this requirement.

U.S.S.G. § 5C1.2(1)–(5).

                                         -4-
Anton's argument that she should have received a sentence reduction under the safety
valve provision of the Guidelines.4

                              B. Downward Departure
       Anton also argues that the district court erred in denying her motion for a
downward departure which was based upon the county prosecutor's recommendation
for probation. Anton also requested that the district court depart downward pursuant
to U.S.S.G. § 5K2.0. She maintains that her case is outside the heartland of offenses,
principally because of the application of the Guidelines to her case. She also notes the
apparent incongruity in the Guidelines because a convicted manufacturer of
methamphetamine can establish eligibility for safety-valve reduction while the
possessor of precursors cannot.

       The Sentencing Commission has recognized that there will be exceptional
cases. The Introduction to the Guidelines explains:

      The Commission intends the sentencing courts to treat each guideline as
      carving out a "heartland," a set of typical cases embodying the conduct
      that each guideline describes. When a court finds an atypical case, one
      to which a particular guideline linguistically applies but where conduct
      significantly differs from the norm, the court may consider whether a
      departure is warranted."

Koon v. United States, 518 U.S. 81, 93 (1996) (quoting 1995 U.S.S.G. ch. 1, pt. A,
intro. comment. 4(b)).

       Anton contends that the sentencing record is not clear as to whether or not the
district court believed it had the discretion to depart. Anton points to the court's
language:


      4
       Because we conclude that § 2D1.1 is inapplicable in the present case, we will
not address Anton's argument concerning a mitigating-role adjustment.

                                          -5-
      [The district court]: All right. The Court is now ready to make its ruling
      on the departure motion with the multiple prongs . . . . The Court
      declines the invitation to depart downward finding this case does not fall
      outside the heartland of cases . . . . Based on the downward departure
      based on the State plea agreement, the Court finds that there is no basis
      to depart . . . . I also find no basis to depart because of the application of
      the guidelines . . . . Again, this case is not so unusual that it falls outside
      the heartland of cases, so the Court will not be departing in this case . .
      ..

      [Government]: . . . Just to clarify, you recognize your authority to depart. You
      just chose not to.

      [The district court]: Exactly.

(Sentencing Transcript at 35–38).

      The district court refused to depart, and a rational reading of the record
indicates that the court was quite clear about its authority to do so. "A refusal to
depart by a sentencing court that is aware of its authority to do so is not appealable."
United States v. Booker, 186 F.3d 1004, 1007 (8th Cir. 1999). Given the clarity of the
record, we will not review the court's downward departure denial.

                                        IV.
      For the reasons indicated, we affirm Anton's sentence.
                       ______________________________




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