                      United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 08-1575
                                   ___________

United States of America,             *
                                      *
           Plaintiff – Appellee,      *
                                      * Appeal from the United States
     v.                               * District Court for the
                                      * Western District of Arkansas.
Ascension Diaz,                       *
                                      *
           Defendant – Appellant.     *
                                 ___________

                             Submitted: September 23, 2008
                                Filed: November 7, 2008
                                 ___________

Before BYE, BEAM, and COLLOTON, Circuit Judges.
                           ___________

BYE, Circuit Judge.

       Ascension Diaz challenges the sentence imposed by the district court1 after he
pleaded guilty to knowingly possessing more than fifty grams of methamphetamine
with intent to distribute. We affirm.

                                          I

      On May 4, 2007, Arkansas parole officers, Immigration and Customs
Enforcement agents, and officers of the Rogers, Arkansas Police Department


      1
        The Honorable Jimm L. Hendren, United States District Judge for the Western
District of Arkansas.
conducted a parole search of Diaz's home based on information he was involved in
drug trafficking. The officers found methamphetamine, scales, a spoon with drug
residue, marijuana, firearm ammunition, and U.S. currency. After converting the
currency into an equivalent drug quantity, the total quantity of methamphetamine
seized was approximately eighty-three grams.

       On August 8, 2007, Diaz was indicted for one count of knowingly possessing
with intent to distribute more than fifty grams of a mixture or substance containing a
detectable amount of methamphetamine in violation of 21 U.S.C. §§ 841(a)(1) and
841(b)(1)(B)(viii). Diaz pleaded guilty on October 10, 2007. Subsequent to his plea,
he spent several hours with the Drug Enforcement Administration providing
information concerning other unindicted individuals and individuals in separate
investigations.

       On January 1, 2008, the government filed a motion for downward departure due
to substantial assistance under § 5K1.1 of the United States Sentencing Guidelines
Manual (U.S.S.G.) and 18 U.S.C. § 3553(e).2 Because Diaz had a prior conviction for
a felony drug offense, he was subject to a statutory mandatory minimum sentence of
120 months. See 21 U.S.C. § 841(b)(1)(B). For a criminal history category IV, Diaz's
guidelines sentencing range, however, was 70-87 months. The government sought to
bypass the mandatory minimum sentence and have Diaz sentenced within his
guidelines sentencing range.

       On January 11, 2008, the district court requested briefing regarding the correct
starting point for a downward departure—the mandatory minimum or the guidelines
sentencing range. The parties agreed the correct starting point was the mandatory

      2
       "A motion under § 5K1.1 authorizes the sentencing court to depart below the
applicable advisory guideline range in determining the advisory guideline sentence,
and a § 3553(e) motion permits the court to sentence below a statutory minimum."
United States v. Williams, 474 F.3d 1130, 1131 (8th Cir. 2007).

                                         -2-
minimum. Based on that starting point, the government filed a revised downward
departure motion, seeking a two-level downward departure.

       At the sentencing hearing, the district court agreed the mandatory minimum was
the correct starting point for a downward departure. The court then attempted to
correlate the mandatory minimum sentence with a guidelines offense level. For Diaz's
criminal history category, there are two guidelines offense levels that have
corresponding sentencing ranges including the statutory minimum of 120 months: (1)
level twenty-seven with a range of 100-125 months; and (2) level twenty-eight with
a range of 110-137 months. Because the district court generally began from the lower
end of the applicable guidelines range when determining an appropriate sentence, it
determined it should depart from the level that had a corresponding sentencing range
with a lower end closest to the mandatory minimum. The court selected level twenty-
eight because its corresponding lower end, 110 months, was closer to 120 months than
level twenty-seven's lower end, 100 months.

       The district court granted the revised motion for downward departure and
departed downward two levels from level twenty-eight to level twenty-six, resulting
in an advisory guidelines range of 92-115 months. Diaz was sentenced to ninety-two
months imprisonment. This appeal followed.

                                         II

     On appeal, Diaz asserts the district court procedurally erred by departing
downward from the higher of the two offense levels that encompass the mandatory
minimum sentence of 120 months.3


      3
        Diaz does not challenge the extent of the downward departure, which likely
would not be reviewable, see United States v. Robinson, 536 F.3d 874, 878 (8th Cir.
2008), or the substantive reasonableness of his sentence.

                                         -3-
      We review a district court's interpretation and application of the sentencing
guidelines de novo. United States v. Zastrow, 534 F.3d 854, 856 (8th Cir. 2008). "If
the district court's decision is procedurally sound, then we will consider the
substantive reasonableness of the sentence imposed, applying an abuse-of-discretion
standard." Id. at 855 (quoting United States v. Braggs, 511 F.3d 808, 812 (8th Cir.
2008)).

       The district court correctly interpreted and applied the sentencing guidelines.
The guidelines provide: "Where a statutorily required minimum sentence is greater
than the maximum of the applicable guideline range, the statutorily required minimum
sentence shall be the guideline sentence." U.S.S.G. § 5G1.1(b). The district court
thus properly determined the mandatory minimum sentence of 120 months was the
guidelines sentence, and thus the appropriate point from which to depart downward.
See United States v. Auld, 321 F.3d 861, 867 (9th Cir. 2003) (holding, where the
statutory minimum sentence exceeds the guidelines sentence, a substantial-assistance
downward departure begins at the mandatory minimum sentence); United States v.
Stewart, 306 F.3d 295, 331-32 (6th Cir. 2002) (same); United States v. Cordero, 313
F.3d 161, 166 (3d Cir. 2002) (same); United States v. Li, 206 F.3d 78, 89 (1st Cir.
2000) (same); United States v. Head, 178 F.3d 1205, 1206 (11th Cir. 1999) (same);
United States v. Pillow, 191 F.3d 403, 407 (4th Cir. 1999) (same); United States v.
Hayes, 5 F.3d 292, 295 (7th Cir. 1993) (same).

       Diaz nonetheless asserts the district court "[procedurally] erred in calculating
the proper guidelines range" by then selecting the higher of the two offense levels that
encompass the mandatory minimum sentence. Although downward departures
"should not be untethered from the structure of the advisory guidelines," United States
v. Saenz, 428 F.3d 1159, 1162 (8th Cir. 2005), the guidelines do not mandate a
particular approach for calculating a substantial-assistance downward departure. The
sentencing court may, as here, depart by levels; it also may depart by months. See
United States v. Jensen, 493 F.3d 997, 1000 (8th Cir. 2007), vacated on other grounds,

                                          -4-
128 S.Ct. 1069 (2008). Because the decision to depart by levels is discretionary, we
cannot say the district court's decision to select the higher of two levels that
encompass the mandatory minimum sentence was procedural error.

                                        III

      We affirm Diaz's sentence.
                     ______________________________




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