                     United States Court of Appeals
                             FOR THE EIGHTH CIRCUIT
                                ________________

                                   No. 02-3008
                                ________________

United States of America,                 *
                                          *
             Appellee,                    *
                                          *       Appeal from the United States
      v.                                  *       District Court for the
                                          *       Western District of Missouri.
Jose A. Chacon,                           *
                                          *
             Appellant.                   *

                                ________________

                                Submitted: February 10, 2003
                                    Filed: June 6, 2003
                                ________________

Before HANSEN,1 Chief Judge, LOKEN and SMITH, Circuit Judges.
                           ________________

HANSEN, Circuit Judge.

      Jose A. Chacon pleaded guilty to conspiring to distribute 500 grams or more
of cocaine, in violation of 21 U.S.C. § 846, and aiding and abetting the possession of
500 grams or more of cocaine with intent to distribute, in violation of 18 U.S.C. § 2.
Each conviction carried a statutory minimum sentence of sixty months in prison, see


      1
       The Honorable David R. Hansen stepped down as Chief Judge of the United
States Court of Appeals for the Eighth Circuit at the close of business on March 31,
2003. He has been succeeded by the Honorable James B. Loken.
21 U.S.C. § 841(b)(1)(B)(ii), and the district court2 advised Chacon of the statutory
minimum at the change-of-plea hearing. At the sentencing hearing, however,
everyone overlooked the existence of the statutory minimum. The district court
calculated Chacon's Guidelines imprisonment range as fifty-one to sixty-three months
and sentenced him to fifty-one months in prison and four years of supervised release.

       The next day, the government timely moved under Federal Rule of Criminal
Procedure 35(c) to correct Chacon's sentence, reminding the district court of the
statutory minimum. At the resentencing hearing, defense counsel concurred in the
existence of the statutory minimum, but urged the district court to depart below it
pursuant to U.S. Sentencing Guidelines Manual § 5K2.0. Recognizing that § 5K2.0
did not authorize a sentence below the statutory minimum, the district court
resentenced Chacon to sixty months in prison and four years of supervised release.
Chacon now appeals his sentence.

       When the minimum sentence required by statute is greater than the minimum
sentence the Guidelines would otherwise require, the statute controls, and the
statutory minimum sets the Guidelines minimum. See U.S.S.G. § 5G1.1(c)(2) &
comment.; United States v. Wolfe, 215 F.3d 811, 812 (8th Cir. 2000). The district
court was correct that it could not use § 5K2.0 to depart below the statutory minimum
because "the only authority for the district court to depart below the statutorily
mandated minimum sentence is found in 18 U.S.C. §§ 3553(e) and (f), which apply
only when the government makes a motion for substantial assistance or when the
defendant qualifies under the safety valve provision." See United States v. Auginash,
266 F.3d 781, 785 (8th Cir. 2001) (citation and internal marks omitted). The
government did not file a substantial-assistance downward-departure motion under
§ 3553(e), so that avenue was not open to Chacon. Chacon, who pleaded guilty


      2
      The Honorable Fernando J. Gaitan, Jr., United States District Judge for the
Western District of Missouri.
                                         2
without a plea agreement on the last business day before his trial was scheduled to
begin, was also ineligible to be sentenced below the statutory minimum pursuant to
the safety-valve provision because he did not divulge to the government "all
information and evidence" he had concerning his offenses and relevant conduct, as
required by § 3553(f)(5).

      Accordingly, we affirm the judgment of the district court.

      A true copy.

            Attest:

                     CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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