                                                                                                                           Opinions of the United
2002 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


12-17-2002

USA v. Cordero
Precedential or Non-Precedential: Precedential

Docket No. 01-2437




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Recommended Citation
"USA v. Cordero" (2002). 2002 Decisions. Paper 799.
http://digitalcommons.law.villanova.edu/thirdcircuit_2002/799


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PRECEDENTIAL

       Filed December 17, 2002

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 01-2437

UNITED STATES OF AMERICA

v.

NICASIO CORDERO,

       Appellant

On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(Crim. No. 99-449-1)
District Judge: Hon. Curtis Joyner

Submitted Pursuant to Third Circuit LAR 34.1(a)
February 5, 2002

BEFORE: Becker, Chief Judge, McKee and Barry,
Circuit Judges

(Filed: December 17, 2002)

       Neil E. Jokelson, ESQ.
       Neil E. Jokelson & Associates
       230 South Broad Street
       18th Floor
       Philadelphia, PA 19102
       Attorney for Appellant,
       Nicasio Cordero




       Thomas M. Zaleski, ESQ.
       Assistant United States Attorney
       Criminal Division
       Ofice of the United States
        Attorney General
       615 Chestnut Street
       Philadelphia, PA 19106
       Attorney for Appellee,
       United States

OPINION OF THE COURT

McKEE, Circuit Judge.

Nicasio Cordero pled guilty to various drug-related
offenses, and the district court thereafter sentenced him to
86 months imprisonment. The court arrived at that
sentence after granting a motion for a downward guidelines
departure that the government made pursuant to U.S.S.G.
S 5K1.1 and 18 U.S.C. S 3553(e). That motion allowed the
court to impose a sentence that was less than the 10 year
mandatory minimum period of incarceration that would
have otherwise applied. On appeal, Cordero argues that the
district court erred in using the mandatory minimum as
the starting point for a downward departure. We will affirm.

I.

A grand jury indicted Cordero for conspiracy to distribute
cocaine (Count One), possession of cocaine with the intent
to distribute and aiding and abetting (Count Two), and
possession of cocaine within a school zone with intent to
distribute (Count Three), in violation of 21 U.S.C.SS 846,
841(a) (1), and 860. Cordero pled guilty to Counts One and
Three pursuant to a written plea agreement in which he
agreed to assist the government in its prosecution of two
codefendants. In return for his assistance, the government
agreed to:

       [m]ove to allow the court to depart from the Sentencing
       Guidelines pursuant to Sentencing Guideline Section
       5K1.1 and to impose a sentence below any mandatory

                                2


       minimum term of imprisonment pursuant to 18 U.S.C.
       Section 3553(e), if the government . . . determines that
       the defendant has provided complete and substantial
       assistance in the investigation or prosecution of
       another person . . . .

R73-R74. Thereafter, the government filed a "substantial
assistance motion" under U.S.S.G. S 5K1.1 pursuant to the
plea agreement.

The district court’s guideline calculation at sentencing
yielded a total offense level of 28 and a criminal history
category of II. After the court awarded a three level
downward adjustment for acceptance of responsibility
Cordero’s base offense level was 25 and the applicable
guideline range was therefore 63 to 78 months
imprisonment. However, Cordero’s plea subjected him to a
mandatory minimum sentence of 10 years imprisonment
pursuant to 21 U.S.C. S 841(b)(1). The district court
therefore applied U.S.S.G. S 5G1.1(b), and adjusted the
applicable guideline range upward to 120 months (10 years)
to account for the mandatory minimum sentence required
by the operation of S 841(b)(1). The district court then used
that 120 month mandatory minimum as the departure
point for granting a downward departure pursuant to the
government’s substantial assistance motion.

As noted above, the court sentenced Cordero to 86
months imprisonment.1 That sentence is obviously less
than the mandatory minimum required by S 841(b)(1), but
substantially above the guideline range of 63 to 78 months
that would have applied absent the mandatory minimum
and the government’s 5K1.1 motion. Cordero appeals
arguing that the district court should have applied the
5K1.1 departure to the 63 to 78 month range rather than
the 10 year mandatory minimum.2
_________________________________________________________________

1. Codero’s sentence also included eight years of supervised release, a
$1,000 fine, and a special assessment of $200.

2. Inasmuch as Cordero did not object at sentencing, we review for plain
error. United States v. Clark, 237 F.3d 293 (3d Cir. 2001). However, the
standard of review is not determinative because our analysis would be
the same even if we subjected Cordero’s sentence to de novo review.

                                3


II.

We have not yet decided whether the starting point for a
sentencing departure is the statutory mandatory minimum
sentence or the otherwise applicable guideline range.
However, the issue has been decided by several other
circuit courts of appeals. See United States v. Li, 206 F.3d
78, 89 (1st Cir. 2000); United States v. Head , 178 F.3d
1205, 1206 (11th Cir. 1999); United States v. Schaffer, 110
F.3d 530, 533-4 (8th Cir. 1997); and United States v.
Hayes, 5 F.3d 292, 295 (7th Cir. 1993). In each of those
cases, the court concluded that the appropriate starting
point is the mandatory minimum sentence, not the
guideline range that would apply in its absence.

In Hayes, the defendant pled guilty to violating 21 U.S.C.
S 841(a)(1), and was therefore subject to a mandatory
minimum period of incarceration of 60 months pursuant to
21 U.S.C. S 841(b)(1)(B)(vii). Hayes, 5 F.3d at 294. However,
the government filed a substantial assistance motion, and
the sentencing court eventually imposed a sentence of 47
months imprisonment on remand. Id. The court arrived at
that sentence by starting at guideline level 24 which was
the lowest guideline offense level calling for a 60 month
sentence. Id. The court then departed downward two levels
for Hayes’ substantial assistance. Id. The resulting level of
22 called for a sentencing range of 41 to 51 months. Id.
Hayes’ sentence of 47 months was therefore within that
guideline range. Id. Hayes appealed arguing that the court
should have applied the 5K1.1 departure to the 41 to 51
month range for his offense level and criminal history
category rather than the 60 month mandatory minimum
sentence required by S 841. Id. The court of appeals
disagreed and affirmed the sentence. Id. at 295.

In Schaffer, the defendant argued that the sentencing
court should disregard a 60 month mandatory minimum
sentence in calculating the appropriate sentence and
awarding him for his substantial assistance. Schaffer, 110
F.3 at 532. The district court disagreed and used the 60
month mandatory minimum as the appropriate starting
point for departing on the count that triggered the
mandatory minimum sentence. Id. The defendant appealed,
and the court of appeals again affirmed. Id. at 533-34.
                                4


Similarly, in Head, the defendant pled guilty to
distributing methamphetamine in violation of 21 U.S.C.
S 846, and was therefore subject to a mandatory period of
imprisonment of 120 months pursuant to 21 U.S.C.
S 841(b)(1). Head, 178 F.3d at 1206. Head’s total offense
level and criminal history category would have otherwise
resulted in a guideline range of between 70 and 87 months
imprisonment. Id. Pursuant to a plea agreement, the
government filed a S 5K1.1 motion. Id. Head urged the
sentencing court to use the 70 to 87 month range as the
starting point for awarding the 5K1.1 departure. The
government resisted that argument and claimed that the
court should apply any departure to the mandatory
minimum rather than the 70 to 87 month range. The
district court agreed with the government’s position, and
the court of appeals affirmed. Id. The court of appeals
reasoned that "the Guidelines do not contemplate a
downward departure for substantial assistance until after
the court applies section 5G1.1(b), which establishes that
the applicable guideline sentence shall be the mandatory
minimum sentence." Id. at 1208 (emphasis in original).

Finally, in United States v. Li, the court of appeals also
rejected the precise argument Cordero is making here. The
court explained:

       this analysis is flawed because appellants mistakenly
       utilize their total offense levels as the starting point for
       calculating the extent of their departures. . . .
       Sentencing Guideline S 5G1.1(b) provides that, where a
       statutorily required minimum sentence is greater than
       the maximum of the applicable guideline range, the
       mandatory minimum sentence shall be the guideline
       sentence.

Li, 206 F.3d at 89.

Cordero’s argument to the contrary is based entirely
upon his reading of 18 U.S.C. S 3553(e). That section
provides as follows:

       Upon motion of the Government, the court shall have
       the authority to impose a sentence below a level
       established by statute as minimum sentence so as to
       reflect a defendant’s substantial assistance in the

                                5


       investigation or prosecution of another person who has
       committed an offense. Such sentence shall be imposed
       in accordance with the guidelines and policy
       statements issued by the Sentencing Commission
       pursuant to section 994 of title 28, United States Code.

18 U.S.C. S 3553 (e).3
U.S.S.G. S 5K1.1 states: "[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. S 5K1.1. Thus,
argues Cordero, under S 3553(e) the sentencing court must
select a starting point "in accordance with the guidelines"
in granting a 5K1.1 motion, and then "depart from the
guidelines" in order to reward a defendant for his/her
substantial assistance.

According to Cordero, once the sentencing court grants
the government’s 5K1.1 motion for a downward departure,
the court should disregard any otherwise applicable
mandatory minimum period of imprisonment, and impose a
sentence that uses the guideline range determined by a
defendant’s base offense level and criminal history as its
starting point.4

Cordero’s reading of S 3553(e) is unpersuasive because it
ignores the impact of a mandatory minimum sentence on
the guidelines when a mandatory minimum sentence
applies. As the court explained in Li, the guidelines
specifically state: "[w]here a statutorily required minimum
sentence is greater than the maximum of the applicable
_________________________________________________________________

3. The appellants in Head, Schaffer , and Hayes all unsuccessfully relied
on this same language. Cordero makes no effort to distinguish any of
these cases. He neither cites any of those cases in his brief, nor offers
any explanation for that omission.

4. Although this is not a precise statement of Cordero’s argument, it is,
in essence, what he is claiming. He also argues that the district court
should "waive" the mandatory minimum, and that using the mandatory
minimum as the starting point rather than the "guideline range"
constitutes an upward departure under the guidelines. However, as we
shall explain below, these alternative statements of his position do not
change our analysis or our result. See Appellant’s Br. at 8, and 11.

                                6


guideline range, the statutorily required minimum sentence
shall be the guideline sentence." U.S.S.G. S 5G1.1(b).
Therefore, Cordero’s "guideline sentence" was not the range
determined by his offense level and criminal history
category at all. Rather, it was the 120 month period of
imprisonment required under S 841(b)(1) because of his
guilty plea to cocaine distribution. The court in Li also
noted that the Commentary to S 5G1.1(b) removes any
doubt as to the operation of that guideline by offering the
following example:

       if the applicable guideline range is 41-51 months and
       there is a mandatory minimum of 60 months, the
       required sentence is 60 months and any sentence
       greater than that would be a guideline departure.
       [Accordingly, it is] clear that the proper starting point
       from which a departure is to be subtracted or to which
       it must be added is the greater of the guideline range
       or the mandatory minimum.

Li, 206 F.3d at 89. Therefore, the 120 month mandatory
minimum sentence Cordero was exposed to under
S 841(b)(1) displaced the 63 to 78 month range that the
court calculated under the guidelines. Accordingly, we
conclude that the district court appropriately recognized
Cordero’s substantial assistance by departing downward
from 120 months rather than from the 63 to 78 month
range.

Before concluding our discussion of Cordero’s argument,
we note that Cordero suggests that a 5K1.1 motion results
in a "waiver of [the] 10 year minimum mandatory
maximum." See Appellant’s Br. at 8. Although Cordero does
not elaborate upon this waiver argument it appears to be
based upon U.S.S.G. S 2D1.1, Application note 7 ("note 7").
Note 7 provides:

       Where a mandatory (statutory) minimum sentence
       applies, this mandatory minimum sentence may be
       "waived" and a lower sentence imposed (including a
       sentence below the applicable guideline range) ... by
       reason of a defendant’s "substantial assistance in the
       investigation or prosecution of another person who has
       committed an offense."

                                7


U.S.S.G. S 2D1.1, cmt. (n.7) (quoting S 5K1.1). However, as
the court noted in Head, note 7 does not provide any
assistance in determining a starting point for departures.

       Instead, note 7 observes that in some cases involving a
       statutory minimum sentence, the court may waive that
       minimum sentence and impose a sentence below the
       statutory minimum. The district court’s authority to
       depart downward for substantial assistance [pursuant
       to S 5K1.1] represents one of the last steps the court
       must take in imposing a sentence. . . . [T]he Guidelines
       do not contemplate a downward departure for
       substantial assistance until after the court applies
       section 5G1.1(b), which establishes that the applicable
       guideline sentence shall be the mandatory minimum
       sentence. Applying the Guidelines in order, therefore,
       produces a pre-departure guideline sentence of 120
       months . . . .

Head, 178 F.3d at 1208 (emphasis in original). Thus, we
reject Cordero’s attempt to view the operation ofS 3553(e)
as "waiving" the mandatory minimum. The mandatory
period of incarceration is not "waived." Rather, it subsumes
and displaces the otherwise applicable guideline range and
thus becomes the starting point for any departure or
enhancement that the sentencing court may apply in
calculating the appropriate sentence under the guidelines.
We also reject Cordero’s attempt to challenge the
sentence as an unsupported "upward departure from the
guidelines." Appellant’s Br. at 9. Cordero characterizes his
sentence as an upward departure from the sentencing
range of 63 to 78 months and then argues that the court
"was not conscious [of that] upward departure from the
Sentencing Guidelines . . . but instead . . . clearly and
erroneously believed that the mandatory minimum of 10
years was, in effect, the Sentencing Guideline." Appellant’s
Br. at 11. However, the record contradicts Cordero’s
attempt to redefine his sentence as an upward departure.
The sentencing court did not impose an upward departure
at all. Rather, it granted a downward departure as the
government requested. In doing so, the court correctly
concluded that the appropriate starting point for reducing
Cordero’s sentence was the mandatory minimum of 10

                                8


years imprisonment rather than the range derived from the
offense level and criminal history category.

III.

For the reasons set forth above, we will affirm the
judgment of sentence of the district court.

A True Copy:
Teste:

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

                                9
