        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT

                                                            United States Court of Appeals

                                 No. 17-50451
                                                                     Fifth Circuit

                                                                   FILED
                                                               April 10, 2018

UNITED STATES OF AMERICA,                                     Lyle W. Cayce
                                                                   Clerk
             Plaintiff – Appellant,

v.

SEALED APPELLEE,

             Defendant – Appellee.




                Appeal from the United States District Court
                     for the Western District of Texas


Before ELROD, COSTA, and HO, Circuit Judges.
PER CURIAM:
      The government appeals Appellee’s sentence of 80 months of
imprisonment based on a 120-month statutory minimum that applies to
Appellee’s conviction and the absence of a motion by the government pursuant
to 18 U.S.C. § 3553(e) to depart from that minimum. Because we agree that
the district court erred by departing from the statutory minimum without a
request by the government to do so, we VACATE and REMAND.
                                       I.
      Pursuant to a plea agreement with the government, Appellee pleaded
guilty to conspiring to possess with intent to distribute 1,000 kilograms or more
of a mixture or substance containing a detectable amount of marijuana. See
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21 U.S.C. § 841. The agreement explained that Appellee would be facing a
mandatory minimum term of ten years and up to life imprisonment.
      The presentence report (PSR) attributed 81,000 kilograms of marijuana
to Appellee as relevant conduct and, following several adjustments, scored him
at an offense level of 38, criminal history category of I, and sentencing range
of 235 to 293 months of imprisonment. The government filed a motion for a
downward departure pursuant to section 5K1.1 of the United States
Sentencing Guidelines. Because of Appellee’s “substantial assistance in the
investigation and/or prosecution of the case,” the government requested that
the district court reduce Appellee’s sentencing range to 135 to 168 months of
imprisonment, a five-level departure.         The district court granted the
government’s motion.
      At the sentencing hearing, the district court heard argument from both
parties. Appellee’s counsel urged the court to sentence Appellee below the
statutory minimum, saying that a ten-year sentence or more was “not
warranted” and that the government should reconsider its position not to
recommend a sentence below the minimum.              The government’s position
remained the same. Ultimately, over the government’s objection, the district
court sentenced Appellee to 80-months imprisonment (below the 120-month
statutory minimum), five-years supervised release, and a $100 special
assessment. The district court later issued a written opinion with its findings
of fact and conclusions of law. It scored Appellee at an offense level of 35, after
reducing the amount of drugs attributed to him and altering one adjustment.
This resulted in a Guidelines range of 168 to 210 months of imprisonment. The
court then entered judgment in accordance with its statements at the
sentencing hearing.
      As the district court predicted at the sentencing hearing, the government
appealed.
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                                       II.
      Under 21 U.S.C. § 841(b)(1)(A)(vii), a conviction for conspiring to possess
with intent to distribute 1,000 kilograms or more of marijuana triggers a ten-
year mandatory minimum term of imprisonment.               Absent a statutory
exception, a district court lacks authority to impose a sentence below this
minimum. United States v. Carter, 595 F.3d 575, 578–79 (5th Cir. 2010). One
exception is housed in 18 U.S.C. § 3553(e). Section 3553(e) states 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. § 3553(e)
(emphasis added). Over two decades ago, the Supreme Court confirmed that,
as stated in the statute’s text, § 3553(e) requires a motion by the government
for a departure below a statutory minimum. Melendez v. United States, 518
U.S. 120, 125–26 (1996).
      The district court was well aware of this requirement. Nonetheless, it
justified its sentencing decision by citing to the Supreme Court’s decision in
Wade v. United States, 504 U.S. 181 (1992). In Wade, the Supreme Court held
that “federal district courts have authority to review a prosecutor’s refusal to
file a substantial-assistance motion and to grant a remedy if they find the
refusal was based on an unconstitutional motive,” such as race or religion, or
“was not rationally related to any legitimate Government end.” 504 U.S. at
185–86. Here, the district court concluded that its departure was warranted
because the government did not take into account the lower offense level scored
by the district court and all of the appropriate grounds for relief, such as the
fact that Appellee voluntarily withdrew from the conspiracy at an early point,
expressed a heightened degree of remorse, and immediately began to take
affirmative steps of rehabilitation after withdrawing. These steps included
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encouraging others in the conspiracy to withdraw, volunteering at a local
church, and maintaining a legitimate job. The district court also expressly
stated that it “disagrees with the concept of mandatory minimum sentencing
by which members of the legislature and the executive who do not see the
human beings before the Court nevertheless impose on the judiciary arbitrary
minimum sentences.”
      Regardless of the district court’s own policy views about the use of
mandatory minimum sentences, the law in this area is clear. And we must
faithfully apply it. A motion by the government was required for the district
court to depart below the minimum term of imprisonment established by
Congress for the drug offense Appellee committed. Thus, it was error for the
district court to sua sponte depart from the minimum. In addition, the district
court cites to no unconstitutional motive on the government’s part in
recommending a substantial-assistance departure of five levels, but not one
that went below the statutory minimum, for Appellee’s cooperation.         The
government explained that it made its five-level recommendation because
Appellee had not done several of the things that typically result in a motion
under section 5K.1.1 of the Guidelines, such as testifying against or helping
the government indict other conspirators, and because the recommendation
was consistent with departures given to other members of the conspiracy, some
less involved than Appellee. This choice of degree was within the government’s
discretion.




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                                             ***
       For the above reasons, we VACATE the judgment of sentence and
REMAND for resentencing consistent with this opinion. 1




       1  Appellee argues that the government “did not retain the right” to appeal Appellee’s
sentence, because of a line in the plea agreement that “the Government reserves the right to
advocate in support of the Court’s judgment should this case be presented to an appellate
court.” Because the government now argues against the court’s judgment, Appellee argues
that its appeal of his sentence is a breach of the plea agreement. In addition to this line about
the government’s rights, the plea agreement states that Appellee agreed to “voluntarily and
knowingly waive[] his right to appeal his sentence on any ground.” No similar waiver was
included with respect to the government. And we do not agree that the government’s specific
reservation of its right to support the district court’s judgment led either party to reasonably
believe that the government could not itself appeal the district court’s judgment. Thus, we
conclude that the government was within its rights in pursuing this appeal.
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