                    United States Court of Appeals
                             FOR THE EIGHTH CIRCUIT
                                 ________________

                                    No. 06-1762
                                 ________________

United States of America,               *
                                        *
            Appellant,                  *
                                        *      Appeal from the United States
      v.                                *      District Court for the
                                        *      Southern District of Iowa.
Cassandra Plaza, also known as          *
Casandra Plaza,                         *
                                        *
             Appellee.                  *

                                 ________________

                            Submitted: October 18, 2006
                                Filed: December 28, 2006
                               ________________

Before WOLLMAN, RILEY and GRUENDER, Circuit Judges.
                        ________________

GRUENDER, Circuit Judge.


        Cassandra Plaza pled guilty to conspiracy to distribute methamphetamine in
violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A) and 846. The district court
sentenced Plaza to 12 months and one day of imprisonment. The Government appeals
the sentencing procedure as improper and the sentence as unreasonable. We vacate
Plaza’s sentence and remand for resentencing.
I.    BACKGROUND


       From January 1, 2004 to October 22, 2004, Cassandra Plaza, a 20-year-old
woman, participated in an ongoing methamphetamine distribution ring that shipped
methamphetamine from California to be sold in Des Moines, Iowa. Plaza relocated
from California to Des Moines for the purpose of selling the methamphetamine that
the ring delivered to Des Moines. In June 2004, police in Des Moines began an
investigation of Matt Kinseth. On two occasions, they observed Plaza enter Kinseth’s
house with a bag and leave without it. After the second occasion, the police stopped
Plaza for a traffic violation and discovered $19,000 in Plaza’s pocket. They executed
a search warrant at her residence, which she shared with Rene Plaza, her cousin and
co-defendant, and uncovered 2,517.88 grams of methamphetamine and drug
packaging materials.


       After Plaza was arrested, she cooperated fully with the police and provided
information about individuals both above and below her in the methamphetamine
distribution chain. The Government found all of her information to be truthful and
attributed four co-defendants’ guilty pleas to Plaza’s cooperation.


       On September 28, 2005, Plaza pled guilty to one count of conspiracy to
distribute methamphetamine. In determining her advisory sentencing guidelines
range, the district court found Plaza to be responsible for 2.5 kilograms of actual
methamphetamine and 11.34 kilograms of a mixture containing methamphetamine,
resulting in a base offense level of 38. United States Sentencing Guidelines
§ 2D1.1(c)(1). Plaza’s base offense level was decreased by two levels because she
met the criteria for safety-valve relief pursuant to U.S.S.G. §§ 2D1.1(b)(9) and 5C1.2
in that she only had one criminal history point, she did not use any violence or
firearms in connection with the methamphetamine conspiracy, no person was
seriously injured or killed in the conspiracy, she was not an organizer or leader of the

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conspiracy, and she provided all of the information she knew about the conspiracy to
the Government. Plaza also received a three-level downward adjustment for
acceptance of responsibility. U.S.S.G. § 3E1.1. These reductions resulted in a total
offense level of 33. With a criminal history category of I, the district court determined
that Plaza’s advisory sentencing guidelines range was 135 to 168 months. The
statutory mandatory minimum sentence was 120 months. 21 U.S.C. § 841(b)(1)(A).
However, the district court granted Plaza safety-valve relief from the statutory
mandatory minimum pursuant to 18 U.S.C. § 3553(f).


       The Government filed a substantial assistance motion pursuant to 18 U.S.C.
§ 3553(e) and U.S.S.G. § 5K1.1 and moved the district court to reduce Plaza’s
sentence by 25 percent. In its opening discussion before sentencing Plaza, the district
court noted that “[t]his [motion] would result in a sentence, if the Court based the
sentence only on the advisory guidelines factor, instead of all the co-equal 3553(a)
factors the Court must consider, of just over 101 months.” Sent. Transcript at 18
(emphases added). The district court, however, neither indicated specifically whether
it granted the Government’s motion for downward departure nor identified
specifically how far down it was actually departing based on Plaza’s cooperation.
While the district court did indicate in the statement of reasons in the judgment that
it granted a § 5K1.1 departure to Plaza, it did not state the extent of the departure nor
any specific reasons that supported its decision to grant the departure. It also did not
reference the motion when imposing Plaza’s ultimate sentence. Sent. Transcript at 22-
23 (“Accordingly, the Court, after considering all of the 3553(a) factors, orders the
defendant . . . to serve a 12 month and one day term of imprisonment.”).


      The district court did consider other factors in imposing the sentence. It
recognized that no firearms or violence were involved in the offense. It also
elaborated on Plaza’s background and characteristics. Plaza was 20 years old at the
time of the offense, this was her first criminal offense, she was single and without

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children, she had tried illegal drugs but had no addiction and she graduated from high
school with grades of mostly As and Bs. Furthermore, after Plaza was arrested, her
parents and siblings moved from California to Iowa to provide support. Finally, the
district court concluded that Plaza posed no danger to the community. According to
the district court, she was not able “to perceive the consequences of her actions,” and
there was a “low likelihood [that she would] recidivate given the absence of drug
addictions.” The district court also noted a 2002 U.S. Sentencing Commission survey
that found a majority of judges believed drug punishments were “greater than
appropriate to reflect the seriousness of drug trafficking offenses.” It then stated that
a state court would award a much shorter sentence for this type of offense and that
“imprisonment is not an appropriate means of promoting correction and
rehabilitation.” See 18 U.S.C. § 3582(a).


       In considering these factors, the district court sentenced Plaza to 12 months and
one day of imprisonment and filed a sentencing order outlining its justifications. This
sentence was lower than the 60 months that Plaza requested, and it amounted to a 123-
month, or 91 percent, reduction from the advisory sentencing guidelines range before
any departure. The Government appeals the sentence as unreasonable and argues that
the procedure used by the district court was improper.


II.   DISCUSSION


          We review a district court’s application of the guidelines de novo. United
States v. Mathijssen, 406 F.3d 496, 498 (8th Cir. 2005). We vacate a sentence
imposed by a district court and remand for resentencing if the sentence “was imposed
. . . as a result of an incorrect application of the sentencing guidelines.” Id. (quoting
18 U.S.C. § 3742(f)(1)).




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       A district court must follow the proper procedure when sentencing a defendant
post-Booker. United States v. Ture, 450 F.3d 352, 356 (8th Cir. 2006) (citing United
States v. Haack, 403 F.3d 997, 1002-03 (8th Cir. 2005)). First, the district court must
“determine the appropriate sentencing range under the Guidelines.” Id. Next, the
district court must “decide if a traditional departure under the Guidelines is
appropriate,” thus creating an advisory guidelines sentencing range. Id. Finally, the
district court must “consider the § 3553(a) factors to determine a sentence.” Id.


        A district court may depart from the sentencing range when the Government
files a motion for substantial assistance pursuant to U.S.S.G. § 5K1.1. United States
v. Peterson, 455 F.3d 834, 837 (8th Cir. 2006). Additionally, the district court may
sentence a defendant below the statutory mandatory minimum when the Government
brings a motion for substantial assistance pursuant to 18 U.S.C. § 3553(e). Id. A
district court’s “departure or reduction pursuant to § 5K1.1 or § 3553(e) ‘can be based
only on assistance-related considerations.’” United States v. Saenz, 428 F.3d 1159,
1162 (8th Cir. 2005) (quoting United States v. Pepper, 412 F.3d 995, 998 (8th Cir.
2005)).


       The Government argues that the district court failed to follow the appropriate
sentencing procedure because it did not specifically state which portion of the reduced
sentence was based on the departure factors under § 5K1.1 and § 3553(e) and which
portion was based on the § 3553(a) factors. The procedural requirements dictate that
the district court must decide if the departure is appropriate and determine the
resulting advisory guidelines sentencing range after determining the appropriate
amount of the departure. Only after this step may the district court consider the
§ 3553(a) factors.1 Ture, 450 F.3d at 356. Without a clear statement by the district

      1
       Because the issues are not ripe and were not briefed by the parties, we express
no opinion as to whether the district court may grant a downward variance below the
statutory mandatory minimum based on the § 3553(a) factors where, as here, the

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court of its decision to depart, the extent of the departure and the reasons for the
departure, we are unable to conduct the necessary review of the extent of the departure
for reasonableness. See Saenz, 428 F.3d at 1162, 1164-65 (holding a departure
unreasonable after reviewing the district court’s reasons for the extent of the
departure).


       In the instant case, the district court did not clearly state at the sentencing
hearing that it was granting the Government’s motion for a downward departure based
on Plaza’s substantial assistance. While the statement of reasons in the judgment
indicates that the district court did decide to grant the motion, we cannot determine
the extent of any departure granted because of the district court’s ambiguous language
stating that the Government’s recommended departure “would result in a sentence, if
the Court based the sentence only on the advisory guidelines factor . . . of just over
101 months.” Sent. Transcript at 18 (emphases added). Additionally, the district
court’s failure to state specifically the reasons for the extent of the substantial
assistance departure prevents us from determining the reasonableness of any
departure. Instead of properly isolating the consideration of the assistance-related
factors to its departure determination, the district court consolidated all of its
considerations in reaching the ultimate sentence of 12 months and one day of
imprisonment. Therefore, we must vacate the sentence. See Peterson, 455 F.3d at
837 (remanding for resentencing “[b]ecause the district court did not specify its
reasons for granting the motions for substantial assistance, apart from other sentencing
considerations”). Because the district court failed to follow the proper sentencing
procedure and we find that a remand is necessary, we need not address the
Government’s remaining arguments.




district court was allowed to sentence below the statutory mandatory minimum due
to a downward departure motion under 18 U.S.C. § 3553(e) and due to the safety-
valve provisions, 18 U.S.C. § 3553(f) and U.S.S.G. § 5C1.2.

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III.   CONCLUSION

       Accordingly, we vacate the sentence and remand for resentencing. On remand,
the district court should follow the sentencing procedure as outlined in Ture, 450 F.3d
at 356.
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