                                                             [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS
                                                                     FILED
                       FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                         ________________________ ELEVENTH CIRCUIT
                                                              FEBRUARY 9, 2007
                               No. 06-12945                   THOMAS K. KAHN
                           Non-Argument Calendar                  CLERK
                         ________________________

                 D. C. Docket No. 04-00182-CR-2-SLB-PWG

UNITED STATES OF AMERICA,


                                                        Plaintiff-Appellant,

                                     versus

XAVIER VARGAS SOTO,

                                                        Defendant-Appellee.


                         ________________________

                  Appeal from the United States District Court
                     for the Northern District of Alabama
                        _________________________

                               (February 9, 2007)

Before DUBINA, CARNES and KRAVITCH, Circuit Judges.

PER CURIAM:

     In this case, we consider the government’s arguments that (1) the district
court improperly calculated the guidelines range by granting a downward departure

based on impermissible factors, and (2) that the sentence imposed was

unreasonable. After a thorough review of the record, we vacate and remand for

resentencing.

       Xavier Vargas Soto pleaded guilty to possession with intent to distribute

methamphetamine, in violation of 21 U.S.C. § 841, and possession of a firearm in

furtherance of a drug-trafficking offense, in violation of 18 U.S.C. § 924(c) after

police discovered drugs and a firearm in his room upon the execution of a search

warrant. The probation officer determined the sentencing range for the drug count

to be 30 to 37 months imprisonment. The firearm count carried a statutory 60-

month mandatory minimum sentence, to run consecutively to the sentence imposed

on the drug count. See 18 U.S.C. § 924(c). Soto had no objections to the

calculations. The prosecutor agreed to postpone the sentencing hearing at least

twice to enable Soto to work with authorities in the hopes of obtaining a reduction

for substantial assistance.

       The government eventually moved for a downward departure based on

substantial assistance under U.S.S.G. § 5K1.1 and 18 U.S.C. § 3553(e),1 which


       1
         Section 5K1.1 of the Sentencing Guidelines provides, “[u]pon motion of the
government stating that the defendant has provided substantial assistance in the investigation or
prosecution of another person who has committed an offense, the court may depart from the
guidelines.” U.S.S.G. § 5K1.1. Section 3553(e) of Title 18 of the U.S. Code provides, “[u]pon

                                                2
would have resulted in a sentencing range of 12 to 18 months on the drug count in

addition to the sentence on the firearm count. In the motion, the government

provided a detailed review of Soto’s cooperation, and requested a sentence of 16-

months imprisonment on the drug count, with a consecutive 60-month sentence on

the firearm count. Soto responded that the 5-year consecutive sentence on the

firearm offense was excessive, and he requested a reduction on the firearm count

based on the § 3553(a) factors.

       At sentencing, the court questioned Soto about his conduct, noting that it had

never seen as extensive a drug history as Soto’s. The court also noted that Soto’s

prior criminal history consisted of one bad check, and that the instant offense

involved drugs worth only about $5,000. The court then learned that, since he

entered his guilty plea, Soto had been employed, earned his high school diploma,

completed courses to earn a degree from community college, and completed a drug

program. Soto confirmed that he had assisted authorities about two months before

sentencing, although not all of the deals he attempted were completed. Despite

finding that Soto’s assistance was de minimis, the court granted the government’s



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).



                                                3
motion for a departure based on substantial assistance, decided to give Soto “one

more chance,” and imposed sentences of 9 months on the drug offense and 9

months on the firearm offense, to be served consecutively. Recognizing that the

government would be “unhappy” about the departure, but wanting to give Soto

“one more chance in life,” the court gave the following explanation for the

sentences imposed:

      [Y]ou can thank the prosecutor for giving you those chances . . . ;
      because, if he had not done that, I wouldn’t have had the option of
      giving you less than at least the 60 month sentence. . . . In determining
      the departure, in addition to the reasons previously stated, the court
      considered the significance and usefulness of the defendant’s
      assistance, taking into consideration the government’s evaluation of
      the assistance rendered. Again, I recognize that it was de minimis and
      probably in any other case would not even have warranted a motion
      for downward departure. Again, you got a great benefit by the
      prosecutor . . . but I am thinking that you probably couldn’t have done
      much more, if any more, than you did. The truthfulness, completeness
      and reliability of the information and the nature and extent of your
      assistance. Again, I departed much more than the government
      recommended, but I did consider their [sic] recommendation in
      making the departure. It’s just that for other reasons and the fact that I
      don’t think you had the ability or the knowledge to do more than you
      did.


The court did not specifically mention the sentencing factors in 18 U.S.C.

§ 3553(a) in fashioning the sentence. The government objected to the extent of the

departures and the reasonableness of the sentences imposed.

      The government now appeals, arguing that the court improperly calculated

                                          4
the guidelines range by considering factors unrelated to Soto’s substantial

assistance and imposed an unreasonable sentence.

       Although at sentencing the government objected to the sentences imposed, it

did not do so on the ground that the departure was based on impermissible factors.

Accordingly, we review that argument for plain error. United States v. Hall, 314

F.3d 565, 566 (11th Cir. 2002); see also United States v. Olano, 507 U.S. 725, 731-

32, 113 S.Ct. 1770, 1776, 123 L.Ed.2d 508 (1993). We review the extent of a

departure for abuse of discretion.2 United States v. Blas, 360 F.3d 1268 (11th Cir.

2004). The ultimate sentence imposed is subject to a reasonableness standard.

United States v. Crawford, 407 F.3d 1174, 1179 (11th Cir. 2005).

       We first address the sentence imposed on the drug count, and conclude that

the court committed plain error. The government may show plain error where the

error “dramatically impact[ed] the sentence, and thereby affect[ed] the substantial

rights of the government and the people of the United States that the defendant be

sentenced correctly in accordance with the legal principles of the sentencing

guidelines.” United States v. Clark, 274 F.3d 1325, 1329 (11th Cir. 2001).

       “[D]istrict courts are prohibited from considering sentencing factors

unrelated to the nature and extent of a defendant’s assistance in making § 5K1.1


       2
        After United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005),
the same standards of review apply. United States v. Crawford, 407 F.3d 1174 (11th Cir. 2005).

                                               5
departures.” United States v. Martin, 455 F.3d 1227, 1236 (11th Cir. 2006). In

ruling on a government motion for departure based upon substantial assistance,

district courts must consider the following factors, set forth in U.S.S.G. § 5K1.1:

(1) “the court’s evaluation of the significance and usefulness of the defendant’s

assistance, taking into consideration the government’s evaluation of the assistance

rendered”; (2) “the truthfulness, completeness, and reliability of any information or

testimony provided by the defendant”; (3) “the nature and extent of the defendant’s

assistance”; (4) “any injury suffered, or any danger or risk of injury to the

defendant or his family resulting from his assistance”; and (5) “the timeliness of

the defendant’s assistance.” U.S.S.G. § 5K1.1(a). See Martin, 455 F.3d at 1235.

“[T]he court may consider factors outside the § 5K1.1(a) list, but only if they are

related to the assistance rendered.” United States v. Crisp, 454 F.3d 1285, 1289

(11th Cir. 2006). After the court has determined the nature and extent of departure

based on substantial assistance, it should then consider the advisory guidelines

range and the § 3553(a) factors in fashioning a reasonable sentence. United States

v. McVay, 447 F.3d 1348, 1356-57 (11th Cir. 2006).

      Here, the district court granted the government’s motion for a downward

departure pursuant to U.S.S.G. § 5K1.1 and § 3553(e) for substantial assistance,

noting that Soto’s assistance was de minimis but that he did not have the ability or



                                           6
the knowledge to do more than he did. The court made little mention of the

§ 5K1.1 criteria, but instead focused on the facts and circumstances related to the

§ 3553(a) factors such as the seriousness of the offense, Soto’s history and

characteristics, and his productive activities between his plea and sentencing. The

court also weighed deterrence, Soto’s need for drug and mental health programs,

and potential educational or vocational opportunities.

       Thus, in imposing sentence on the drug count, the district court departed

under U.S.S.G. § 5K1.1 based upon factors unrelated to Soto’s substantial

assistance. Moreover, it appears that the court applied a reduction based on

substantial assistance and a variance under Booker based on § 3553(a) factors. But

the court failed to explain how it apportioned the reduction in Soto’s sentence

between the two. Thus, the district court committed plain error that affected the

sentence. Crisp, 454 F.3d at 1289; McVay, 447 F.3d at 1356-57. Accordingly, we

vacate and remand the sentence imposed for the drug count for proper

consideration of the factors under § 5K1.1.3

       We also conclude that remand is warranted on the firearm count. The extent

of the departure on the firearm count is not supported by the substantial assistance

reasons given by the court. The court’s departure from a mandatory minimum


       3
         Because we conclude that remand is warranted on this ground, we do not consider
whether the sentence imposed on the drug count was reasonable.

                                              7
sentence of 60 months to a sentence of 9 months constitutes an 85 percent

reduction. In light of the court’s acknowledgment that Soto’s assistance was “de

minimis” and that Soto did not have the ability or the knowledge to offer more

assistance than he did, the reduction was not reasonable.

         Finally, we reject Soto’s response that the sentence can nevertheless be

affirmed as reasonable based upon the § 3553(a) factors that the court discussed.

A sentence can be unreasonable no matter what the extent if based upon

impermissible factors. United States v. Williams, 438 F.3d 1272, 1274 (11th Cir.

2006).

         Accordingly, we VACATE and REMAND for resentencing.




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