                                                               NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 _____________

                                     No. 12-4019
                                    _____________

                           UNITED STATES OF AMERICA

                                            v.

                                CLIFFORD FLEMING,
                                          Appellant
                                   _____________

                    On Appeal from the United States District Court
                        for the Middle District of Pennsylvania
                             (D.C. No. 3-10-cr-00064-001)
                      District Judge: Honorable Edwin M. Kosik
                                   _______________

                      Submitted Under Third Circuit LAR 34.1(a)
                                   May 16, 2013

              Before: SMITH, FISHER, and CHAGARES, Circuit Judges.

                                  (Filed: July 9, 2013 )

                                   _______________

                                      OPINION
                                   _______________

CHAGARES, Circuit Judge.

      Clifford Fleming was sentenced to 87 months of imprisonment for possession and

distribution of methamphetamine and use of a firearm during a drug trafficking crime.

That sentence reflected the District Court’s decision to grant the Government’s motion
for a downward departure based on cooperation. Fleming appeals his sentence, arguing

that the District Court should have granted him a further downward departure. For the

reasons explained below, we will affirm the District Court’s judgment of sentence.

                                             I.

       Because we write solely for the benefit of the parties, we will recount only those

facts necessary to our disposition.

       Fleming pled guilty to two counts of the indictment: Count 1, which charged him

with distributing and possessing with intent to distribute a mixture containing

methamphetamine in violation of 21 U.S.C. § 841(A)(1) and Count 2, which charged him

with using a firearm during and in relation to a drug trafficking crime in violation of 18

U.S.C. § 924(c)(1). The District Court determined that Fleming had a total offense level

of 25 with a criminal history category of I on Count 1, which translated to an advisory

guidelines range of 57 to 71 months. On Count 2, the District Court determined that

Fleming was subject to a five-year mandatory minimum sentence, which he was required

to serve consecutively to his sentence on Count 1.

       Due to Fleming’s cooperation with law enforcement, the Government moved for a

seven-level reduction on Count 1 pursuant to section 5K1.1 of the United States

Sentencing Guidelines. Appendix (“App.”) 51. The Government explicitly declined to

move for a sentence below the mandatory minimum applicable to Count 2. Supplemental

App. 5-6. The District Court granted the Government’s motion, making Fleming’s new

range on Count 127 to 33 months. Following the Government’s recommendation that

Fleming be sentenced at the bottom of this range, the District Court imposed a sentence

                                             2
of 27 months on Count 1 and 60 months, the statutory minimum, on Count 2. Fleming

now argues that the District Court erred in imposing the mandatory minimum sentence on

Count 2, suggesting that he should have received an even greater downward departure.

                                             II.1

       It is not entirely clear whether Fleming argues that the District Court committed

error by not departing downward further than it did or by failing to recognize that it had

the ability to depart below the five-year mandatory minimum sentence applicable to

Count 2. In either case, his challenge is meritless. To the extent that his appeal is based

on a belief that he should have been granted a greater downward departure, this Court

lacks jurisdiction to consider it. United States v. Cooper, 437 F.3d 324, 332-33 (3d Cir.

2006) (reaffirming our earlier holding that appellate courts lack jurisdiction to entertain

appeals challenging the extent of downward departures), abrogated on other grounds by

Kimbrough v. United States, 552 U.S. 85 (2007). If, on the other hand, Fleming suggests

that the District Court was incorrect in treating the mandatory minimum as mandatory,

his suggestion is simply incorrect. The Government’s section 5K1.1 motion was a

limited motion that only sought a downward departure on Count 1; the motion

specifically stated that the Government did not move for a sentence below the mandatory

minimum and consecutive nature of Count 2 and the Government never filed a separate

motion under 18 U.S.C. § 3553(e) asking the District Court to depart below the statutory

minimum. Under such circumstances, the District Court did not have the authority to


1
 The District Court had jurisdiction over this case under 18 U.S.C. § 3231. This Court
has jurisdiction over the appeal pursuant to 28 U.S.C. § 1291.
                                              3
depart below the mandatory minimum. Melendez v. United States, 518 U.S. 120, 123

(1996).

                                           III.

      For the foregoing reasons, we will affirm the District Court’s sentence.




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