                                                             [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS
                                                                     FILED
                       FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                         ________________________ ELEVENTH CIRCUIT
                                                             NOVEMBER 16, 2006
                               No. 06-12945                   THOMAS K. KAHN
                           Non-Argument Calendar                  CLERK
                         ________________________

                 D. C. Docket No. 04-00182-CR-2-SLB-PWG

UNITED STATES OF AMERICA,


                                                         Plaintiff-Appellant,

                                     versus

XAVIER VARGAS SOTO,

                                                         Defendant-Appellee.


                         ________________________

                  Appeal from the United States District Court
                     for the Northern District of Alabama
                        _________________________

                              (November 16, 2006)

Before DUBINA, CARNES and KRAVITCH, Circuit Judges.

PER CURIAM:

     In this case, we consider the government’s arguments that (1) the district
court improperly calculated the guidelines range by granting a downward departure

based on impermissible factors, and (2) that the sentence imposed was

unreasonable. After a thorough review of the record, we vacate and remand for

resentencing.

      Xavier Vargas Soto pleaded guilty to possession with intent to distribute

methamphetamine, in violation of 21 U.S.C. § 841, and possession of a firearm in

furtherance of a drug-trafficking offense, in violation of 18 U.S.C. § 924(c) after

police discovered drugs and a firearm in his room upon the execution of a search

warrant. The probation officer determined the sentencing range for the drug count

to be 30 to 37 months imprisonment. The firearm count carried a statutory 5-year

sentence, to run consecutively to the sentence imposed on the drug count. See 18

U.S.C. § 924(c). Soto had no objections to the calculations. The prosecutor agreed

to postpone the sentencing hearing at least twice to enable Soto to work with

authorities in the hopes of obtaining a reduction for substantial assistance.

      The government eventually moved for a downward departure based on

substantial assistance under U.S.S.G. § 5K1.1 and 18 U.S.C. § 3553(e), which

would have resulted in a sentencing range of 12 to 18 months on the drug count.

In the motion, the government provided a detailed review of Soto’s cooperation,

but did not request a reduction on the firearm offense. Soto responded that the



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5-year consecutive sentence on the firearm offense was excessive, and he requested

a reduction on the firearm count based on the § 3553(a) factors.

      At sentencing, the court questioned Soto about his conduct, noting that it had

never seen as extensive a drug history as Soto’s. The court also noted that Soto’s

prior criminal history consisted of one bad check, and that the instant offense

involved drugs worth only about $5,000. The court then learned that, since he

entered his guilty plea, Soto had been employed, earned his high school diploma,

completed courses to earn a degree from community college, and completed a drug

program. Soto confirmed that he had assisted authorities about two months before

sentencing, although not all of the deals he attempted were completed. Despite

finding that Soto’s assistance was de minimis, the court granted the government’s

motion for a departure based on substantial assistance, decided to give Soto “one

more chance,” and imposed sentences of 9 months on the drug offense and 9

months on the firearm offense, to be served consecutively. The court gave the

following explanation for the sentences imposed:

      [Y]ou can thank the prosecutor for giving you those chances . . . ;
      because, if he had not done that, I wouldn’t have had the option of
      giving you less than at least the 60 month sentence. . . . In determining
      the departure, in addition to the reasons previously stated, the court
      considered the significance and usefulness of the defendant’s
      assistance, taking into consideration the government’s evaluation of
      the assistance rendered. Again, I recognize that it was de minimis and
      probably in any other case would not even have warranted a motion

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       for downward departure. Again, you got a great benefit by the
       prosecutor . . . but I am thinking that you probably couldn’t have done
       much more, if any more, than you did. The truthfulness, completeness
       and reliability of the information and the nature and extent of your
       assistance. Again, I departed much more than the government
       recommended, but I did consider their [sic] recommendation in
       making the departure. It’s just that for other reasons and the fact that I
       don’t think you had the ability or the knowledge to do more than you
       did.


The government objected to the extent of the departures and the reasonableness of

the sentences imposed.

       The government now appeals, arguing that the court improperly calculated

the guidelines range by considering factors unrelated to Soto’s substantial

assistance and imposed an unreasonable sentence.

       Although at sentencing the government objected to the sentences imposed, it

did not do so on the ground that the departure was based on impermissible factors.

Accordingly, we review that argument for plain error. United States v. Hall, 314

F.3d 565, 566 (11th Cir. 2002); see also United States v. Olano, 507 U.S. 725, 731-

32, 113 S.Ct. 1770, 1776, 123 L.Ed.2d 508 (1993). We review the extent of a

departure for abuse of discretion.1 United States v. Blas, 360 F.3d 1268 (11th Cir.

2004). The ultimate sentence imposed is subject to a reasonableness standard.



       1
        After United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005),
the same standards of review apply. United States v. Crawford, 407 F.3d 1174 (11th Cir. 2005).

                                               4
United States v. Crawford, 407 F.3d 1174, 1179 (11th Cir. 2005).

      We first address the sentence imposed on the drug count, and conclude that

the court committed plain error. The government may show plain error where the

error “dramatically impact[ed] the sentence, and thereby affect[ed] the substantial

rights of the government and the people of the United States that the defendant be

sentenced correctly in accordance with the legal principles of the sentencing

guidelines.” United States v. Clark, 274 F.3d 1325, 1329 (11th Cir. 2001).

      “[D]istrict courts are prohibited from considering sentencing factors

unrelated to the nature and extent of a defendant’s assistance in making § 5K1.1

departures.” United States v. Martin, 455 F.3d 1227, 1236 (11th Cir. 2006). In

ruling on a government motion for departure based upon substantial assistance,

district courts must consider the following factors, set forth in U.S.S.G. § 5K1.1:

(1) “the court’s evaluation of the significance and usefulness of the defendant’s

assistance, taking into consideration the government’s evaluation of the assistance

rendered”; (2) “the truthfulness, completeness, and reliability of any information or

testimony provided by the defendant”; (3) “the nature and extent of the defendant’s

assistance”; (4) “any injury suffered, or any danger or risk of injury to the

defendant or his family resulting from his assistance”; and (5) “the timeliness of

the defendant’s assistance.” U.S.S.G. § 5K1.1(a). See Martin, 455 F.3d at 1235.



                                           5
“[T]he court may consider factors outside the § 5K1.1(a) list, but only if they are

related to the assistance rendered.” United States v. Crisp, 454 F.3d 1285, 1289

(11th Cir. 2006). After the court has determined the nature and extent of departure

based on substantial assistance, it should then consider the advisory guidelines

range and the § 3553(a) factors in fashioning a reasonable sentence. United States

v. McVay, 447 F.3d 1348, 1356-57 (11th Cir. 2006).

      Here, the district court granted the government’s motion for a downward

departure pursuant to U.S.S.G. § 5K1.1 for substantial assistance, noting that

Soto’s assistance was de minimis but that he did not have the ability or the

knowledge to do more than he did. The court made little mention of the § 5K1.1

criteria, but instead focused on the facts and circumstances related to the § 3553(a)

factors such as the seriousness of the offense, Soto’s history and characteristics,

and his productive activities between his plea and sentencing. The court also

weighed deterrence, Soto’s need for drug and mental health programs, and

potential educational or vocational opportunities.

      Thus, in imposing sentence on the drug count, the district court departed

under U.S.S.G. § 5K1.1 based upon factors unrelated to Soto’s substantial

assistance. Moreover, it appears that the court applied a reduction based on

substantial assistance and a variance under Booker based on § 3553(a) factors. But



                                           6
the court failed to explain how it apportioned the reduction in Soto’s sentence

between the two. Thus, the district court committed plain error that affected the

sentence. Crisp, 454 F.3d at 1289; McVay, 447 F.3d at 1356-57. Accordingly, we

vacate and remand the sentence imposed for the drug count for proper

consideration of the factors under § 5K1.1.2

       We also conclude that remand is warranted on the firearm count. A § 5K1.1

motion by the government for a departure based on a defendant’s substantial

assistance does not authorize the district court to depart below any statutory

minimum sentence; a court may depart below the mandatory minimum only on the

government’s motion for substantial assistance under 18 U.S.C. § 3553(e), and it

cannot sentence below the mandatory minimum based upon § 3553(a) factors.

Melendez v. United States, 518 U.S. 120, 125-27, 116 S.Ct. 2057, 2060-61, 135

L.Ed.2d 427 (1996).

       Here, the government did not request a departure below the mandatory

minimum on the firearm count. Although it filed a motion citing § 3553(e), which

would permit the court to consider departing below the mandatory minimum based

upon substantial assistance, the motion focused on the drug count and did not

request a departure on the firearm count. See Melendez, 518 U.S. at 125-26, 116


       2
         Because we conclude that remand is warranted on this ground, we do not consider
whether the sentence imposed on the drug count was reasonable.

                                              7
S.Ct. at 2060. We note that the court is not bound by the government’s

recommendation, but it should give the recommendation substantial weight. See

U.S.S.G. § 5K1.1, comment. (n.3). In this case, the court failed to give the

recommendation substantial weight.

      Moreover, the extent of the departure is not supported by the substantial

assistance reasons given by the court. The court’s departure from a mandatory

minimum sentence of 60 months to a sentence of 9 months constitutes an 85

percent reduction. In light of the court’s acknowledgment that Soto’s assistance

was “de minimis” and that Soto did not have the ability or the knowledge to offer

more assistance than he did, the reduction was not reasonable.

      Finally, we reject Soto’s response that the sentence can nevertheless be

affirmed as reasonable based upon the § 3553(a) factors that the court discussed.

This particular departure is below the mandatory minimum and statutory

mandatory minimums are not “advisory” even after Booker. United States v.

Shelton, 400 F.3d 1325, 1333 n.10 (11th Cir. 2005). A sentence can be

unreasonable no matter what the extent if based upon impermissible factors.

United States v. Williams, 438 f.3d 1272, 1274 (11th Cir. 2006).

      Accordingly, we VACATE and REMAND for resentencing.




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