                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 10a0560n.06

                                           No. 09-5762                                  FILED
                                                                                    Aug 27, 2010
                          UNITED STATES COURT OF APPEALS                       LEONARD GREEN, Clerk
                               FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                                )
                                                         )
       Plaintiff-Appellee,                               )       ON APPEAL FROM THE
                                                         )       UNITED STATES DISTRICT
               v.                                        )       COURT FOR THE WESTERN
                                                         )       DISTRICT OF TENNESSEE
DANNY WINBERRY,                                          )
                                                         )
       Defendant-Appellant.                              )
                                                         )



BEFORE: GUY, MOORE, and GRIFFIN, Circuit Judges.

       GRIFFIN, Circuit Judge.

       Defendant Danny Winberry appeals his sentence of 360 months in prison for his guilty plea

to conspiracy to commit murder for hire resulting in the death of Martha Johnson, in violation of 18

U.S.C. § 1958, and arson, in contravention of 18 U.S.C. § 844(i). We affirm.

                                                 I.

       On July 12, 2006, a federal grand jury returned a superseding indictment against Winberry

consisting of nine counts relating to the murder of Johnson. Count 1 charged that Winberry violated

18 U.S.C. § 1958 by conspiring to use interstate commerce facilities in the commission of murder

for hire. Count 2 alleged that Winberry violated 18 U.S.C. § 844(i) by committing arson. Pursuant

to a written plea agreement, Winberry pleaded guilty to Count 1 and Count 2 of the superseding

indictment in exchange for dismissal of the remaining counts against him. In addition, the
No. 09-5762
United States v. Winberry


government agreed to “consider” moving, pursuant to § 5K1.1 of the United States Sentencing

Guidelines and 18 U.S.C. § 3553(e), for a reduction in Winberry’s sentence for his substantial

assistance to authorities. The government also agreed not to file a notice to seek the death penalty

or a notice of special findings.

       On June 23, 2009, the district court held Winberry’s sentencing hearing. After awarding

three points for acceptance of responsibility, the district court determined that Winberry had an

offense level of 42 and a criminal history category IV, which resulted in an advisory Guideline range

of 360 months to life imprisonment. However, because Count 1 of the superseding indictment

(conspiracy to commit murder for hire resulting in death) carried a statutorily mandated sentence of

death or life imprisonment, the district court found that Winberry’s Guideline sentence was life in

prison.1 The government subsequently moved for a downward departure pursuant to U.S.S.G. §

5K1.1 and 18 U.S.C. § 3553(e), which the district court granted before sentencing Winberry to 360

months in prison.

       Winberry now timely appeals.

                                                 II.

       In this appeal, Winberry does not dispute “that as the sentencing hearing commenced, [he]

faced a statutory penalty of life in prison based upon his guilty plea.” He argues instead that the

district court erred in sentencing him to 360 months in prison because, having granted the



       1
         As the district court noted at Winberry’s sentencing hearing, “[t]he government took death
off the table[.]”

                                                -2-
No. 09-5762
United States v. Winberry


government’s substantial-assistance motion pursuant to U.S.S.G. § 5K1.1, the district court was not

permitted to sentence Winberry within the advisory Guideline range of 360 months to life

imprisonment.2 Winberry’s appeal is predicated on a particular view of “the method used to

calculate the downward departure for substantial assistance.” United States v. Stewart, 306 F.3d 295,

331 (6th Cir. 2002). “This is an issue of law regarding the interpretation of a statute and the

sentencing guidelines; thus, we apply the de novo standard of review.” Id.

       Winberry’s argument is based on the false premise that his initially calculated advisory

Guideline range continued to have import in the face of a “statutorily required minimum sentence”

that was equal to the maximum sentence of that range. See U.S.S.G. § 5G1.1(c)(2). It did not.

Because 18 U.S.C. § 1958 prescribed a mandatory sentence of death or life imprisonment for

Winberry’s offense, and the government did not seek the death penalty, his Guideline sentence,

pursuant to U.S.S.G. § 5G1.1(c)(2), became life imprisonment. See United States v. Butler, 137 F.

App’x 813, 815 (6th Cir. 2005) (unpublished); United States v. Smith, 289 F.3d 696, 703 (11th Cir.

2002) (“With an offense level of 37 and a criminal history category VI, Smith’s guideline range was

360 months to life. . . . Because Smith’s statutory mandatory minimum sentence was life

imprisonment, Smith’s guideline sentence under U.S.S.G. § 5G1.1(c)(2) also became the life

sentence required by statute.”). When “[t]he statutory minimum becomes the guideline sentence[,]”

it “ordinarily is binding on the district judge.” United States v. Hameed, No. 09-3259, 2010 WL

2976048, at *3 (6th Cir. July 26, 2010).


       2
           Winberry “makes no claim that the district court erred with respect to 18 U.S.C. § 3553(e).”

                                                  -3-
No. 09-5762
United States v. Winberry


        The Federal Sentencing Act, 18 U.S.C. § 3551 et seq., 28 U.S.C. § 991 et seq., authorizes

a sentence below the relevant statutory minimum sentence in only two instances: (1) where the

government moves for a downward departure due to substantial assistance pursuant to 18 U.S.C. §

3553(e); and (2) where the “safety valve” is applicable in certain drug prosecutions under 18 U.S.C.

§ 3553(f). See United States v. McIntosh, 484 F.3d 832, 835 (6th Cir. 2007) (“These are the

exclusive means by which a court may depart below the statutory minimum.”). Here, the district

court granted the government’s motion for a downward departure for substantial assistance “under

5K1 and 3553[(e)],” and sentenced Winberry to 360 months in prison.

        Winberry “is correct that the district court did not need to grant motions under both 18 U.S.C.

§ 3553(e) and U.S.S.G. § 5K1.1 to sentence him below the statutory minimum.” United States v.

Gabbard, 586 F.3d 1046, 1049 (6th Cir. 2009) (per curiam) In Gabbard, we explained:

        Title 18 U.S.C. § 3553(e) gives the district court its “[l]imited authority to impose a
        sentence below a statutory minimum” and provides that “[s]uch sentence shall be
        imposed in accordance with the guidelines and policy statements issued by the
        Sentencing Commission pursuant to [28 U.S.C. § 994].” Section 5K1.1 is the policy
        statement within the Guidelines “governing downward departures” for substantial
        assistance. United States v. Ware, 161 F.3d 414, 422 (6th Cir. 1998). Based on this
        statutory structure, departure from the Guidelines is implicit in any departure from
        a statutory minimum, as 18 U.S.C. § 3553(e) by its text recognizes that any departure
        below a statutory minimum is a departure below the Guidelines, and that the sentence
        must be imposed in accordance with said Guidelines. Thus, to depart below a
        statutory minimum when the Guideline [sentence] is the statutory minimum, a district
        court need only grant an 18 U.S.C. § 3553(e) motion because of the court’s implicit
        authority to depart below the Guidelines via its inclusion of U.S.S.G. § 5K1.1.

Id. at 1050 (first, second, and third alterations in original).




                                                  -4-
No. 09-5762
United States v. Winberry


       Regardless, “any error here is not reversible because it was harmless.” Id. As was the case

in Gabbard,

       [t]he Government requested, and the district court granted, the U.S.S.G. § 5K1.1
       motion. This motion was “superfluous,” [United States v. Richardson, 521 F.3d 149,
       159 (2d Cir. 2008)], but because the district court granted [the] request for a sentence
       below the statutory minimum for substantial assistance, the superfluous motion had
       no effect upon the proceedings. The district court did not, for instance, believe that
       it needed a U.S.S.G. § 5K1.1 motion to sentence the defendant below the statutory
       minimum, deny the motion, and then fail to sentence the defendant below the
       statutory minimum under the mistaken belief that it lacked such authority. It granted
       the motion, and then meted out a sentence of [360] months, well below the statutory
       minimum of [life]. Therefore, any error was harmless.

Id.3

                                                 III.

       For these reasons, we affirm the judgment of the district court.4




       3
          Moreover, the district court did not err by considering U.S.S.G. § 5K1.1 factors in
fashioning Winberry’s sentence. Although a court may only depart below a statutory minimum
pursuant to 18 U.S.C. §§ 3553(e) or 3553(f), “[s]ection 5K1.1(a) may guide the district court when
it selects a sentence below the statutory minimum.” Melendez v. United States, 518 U.S. 120, 129
(1996); see also Richardson, 521 F.3d at 159 (“Although by itself § 5K1.1 may not be used to
effectuate a departure below a statutory minimum sentence, its factors are instructive in determining
the maximum permissible extent of a departure below the statutory minimum pursuant to §
3553(e).”); 18 U.S.C. § 3553(e) (providing that a sentence in light of substantial assistance “shall
be imposed in accordance with the guidelines and policy statements issued by the Sentencing
Commission”).
       4
         We further note that “[w]hether and to what extent to grant a section 5K1.1 motion rests
within the discretion of the sentencing court[.]” United States v. Rosenbaum, 585 F.3d 259, 264 (6th
Cir. 2009). Thus, to the degree “defendant’s claim on appeal goes . . . to the extent of the departure,
this Court has no jurisdiction over the appeal.” United States v. Jones, 417 F.3d 547, 551 (6th Cir.
2005); see also United States v. Curry, 536 F.3d 571, 573 (6th Cir. 2008) (same).

                                                 -5-
