                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 08-2834
                                   ___________

United States of America,               *
                                        *
             Appellee,                  *
                                        * Appeal from the United States
      v.                                * District Court for the
                                        * District of Minnesota.
Martin Jermaine Billue,                 *
                                        *    [PUBLISHED]
             Appellant.                 *
                                   ___________

                             Submitted: May 15, 2009
                                Filed: July 23, 2009
                                 ___________

Before LOKEN, Chief Judge, EBEL1 and CLEVENGER2, Circuit Judges.
                              ___________

EBEL, Circuit Judge.

       Martin James Billue (“Billue”) pled guilty to conspiracy to distribute cocaine
and marijuana, in violation of 21 U.S.C. §§ 841 and 846. Because of the quantity of
drugs involved and Billue’s prior conviction for a felony drug offense, he was subject
to a mandatory minimum sentence of 240 months’ imprisonment. Based on his


      1
       The Honorable David M. Ebel, United States Circuit Judge for the Tenth
Circuit, sitting by designation.
      2
       The Honorable Raymond C. Clevenger, III, United States Circuit Judge for the
Federal Circuit, sitting by designation.
substantial assistance to the Government in convicting other members of the
conspiracy, however, the Government moved for a downward departure from the
statutory minimum. The district court3 granted that motion, sentencing Billue to 108
months’ imprisonment followed by 10 years of supervised release. Billue appeals,
asserting that the district court erred by concluding (1) that in ruling on the
Government’s motion, it was permitted to consider only factors related to Billue’s
substantial assistance; and (2) that the starting point for the downward departure was
the statutory minimum sentence.

      Exercising jurisdiction under 18 U.S.C. § 3742 and 28 U.S.C. § 1291, we
affirm.

I.    BACKGROUND

       For roughly ten months in 2007, Billue was part of a cocaine- and marijuana-
trafficking ring in Minnesota and Michigan. The ring distributed approximately
fifteen kilograms of cocaine and ninety kilograms of marijuana. In January of 2008,
Billue and his fellow traffickers were charged in a single-count indictment with
conspiracy to distribute at least five kilograms of cocaine and marijuana, in violation
of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846. Because Billue had a prior felony
drug conviction, he faced a mandatory minimum sentence, under 21 U.S.C. §
841(b)(1)(A), of twenty years’ imprisonment.

      Pursuant to a plea agreement, Billue pled guilty to the single count of
conspiracy to distribute. That agreement identified Billue’s base offense level under
the Sentencing Guidelines as thirty-four and included the Government’s
recommendation for a three-level reduction for acceptance of responsibility if Billue


      3
      The Honorable Donovan W. Frank, United States District Judge for the District
of Minnesota.

                                         -2-
were to testify truthfully at his change-of-plea hearing. However, the agreement also
noted that because of his past criminal conduct, Billue might qualify as a career
offender under U.S.S.G. § 4B1.1, thus raising his base offense level to thirty-seven.
Based on the parties’ belief that Billue’s Criminal History Category under the
Guidelines would be VI, the plea agreement calculated Billue’s sentencing range as
either 240 months or 262-327 months, depending on whether he was sentenced as a
career offender.4

       The plea agreement further provided that Billue would cooperate with the
Government in the prosecution of his co-conspirators and other drug-trafficking
suspects, and that if he cooperated fully and truthfully so as to render substantial
assistance, the Government would file a motion, pursuant to U.S.S.G. § 5K1.1 and 18
U.S.C. § 3553(e), giving the district court authority to depart downward from the
advisory Guideline range and the statutory minimum sentence, respectively. Billue
rendered substantial assistance to the Government’s satisfaction, and the Government
filed the promised motion for downward departure.




      4
        The agreement posited that in the absence of career-offender status, Billue
would have a total offense level of thirty-one (a base level of thirty-four, minus three
levels for acceptance of responsibility), which, when combined with a criminal history
category of VI, produced a Guidelines range of 188-235 months. However, “[w]here
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). Therefore, because of § 841(b)(1)(A)’s mandatory
minimum, Billue’s Guideline range would have been 240 months under this scenario.

        With career-offender status, according to the plea agreement, Billue would have
a total offense level of thirty-four (a base level of thirty-seven, minus three levels for
acceptance of responsibility); combined with a criminal history category of VI, that
offense level would have produced a mandatory minimum sentence of 240 months,
with an advisory Guidelines range of 262-327 months.

                                           -3-
       Prior to sentencing, Billue filed a “Position with Regard to Sentencing” brief.
In that brief, he argued that in ruling on the motion for downward departure, the
district court “must sentence Mr. Billue pursuant to the scheme laid out at Section
3553(a) of Title 18 of [the] United States Code.” (Billue’s Sent. Br. at 3 (emphasis
added).) As a result, according to Billue, the district court should consider his
personal history and characteristics, and particularly his “unfortunate upbringing and
early abuse of drugs,” as part of its analysis of the motion for departure. (Id. at 2.)

       At sentencing, the district court found that under the Guidelines,5 Billue’s total
offense level was thirty-one, and his criminal history category was IV, rather than the
VI anticipated in the plea agreement. In the absence of a statutory minimum, the
district court explained, the advisory Guidelines range would have been 151-188
months; however, because of that mandatory minimum, Billue’s “imprisonment
range” under the Guidelines was the statutorily mandated 240 months. (Sent. trans.
at 14.) See 21 U.S.C. § 841(b)(1)(A); U.S.S.G. § 5G1.1(b). The district court thus
concluded that 240 months’ imprisonment was “in fact the starting point for the
Court” in applying any downward departure it might grant in response to the
Government’s motion. (Sent. trans. at 3.) While acknowledging that 240 months was
“the mandatory minimum, statutorily, and . . . [was] the starting point” for a departure,
Billue nonetheless proposed that the inapplicable advisory Guidelines range of 151-
188 months “should be in play at least in some degree” in the district court’s ruling
on that motion. (Id. at 4.)

       Billue also renewed, at sentencing, his argument that the court could consider
factors other than those related to his substantial assistance–and specifically § 3553(a)


      5
       Having compared the Guidelines Manual in effect at the time of the offense of
conviction and the Manual in effect at the time of sentencing, and having concluded
that use of the latter would not violate the ex post facto clause, the district court
applied the Guidelines Manual incorporating amendments effective March 3, 2008.
See U.S.S.G. § 1B1.11.

                                          -4-
factors–in ruling on the motion for downward departure. The district court responded
by explaining that under governing Eighth Circuit law, “the only basis for [departure]
underneath [the statutory minimum of] 240 [months] is not a 3553(a) factor. . . .
Rather, it is the level of his assistance that he gave the United States.” (Id. at 6-7.)
With Billue’s objections preserved for appeal, the district court considered only
Billue’s substantial assistance to the Government and sentenced him to 108 months
in prison, a downward departure of 132 months from the statutory minimum. Billue
timely appealed.

II.   DISCUSSION

       Billue asserts that the district court erred by concluding (1) that in ruling on the
Government’s motion, it was permitted to consider only factors related to Billue’s
substantial assistance; and (2) that the starting point for the downward departure was
the statutory minimum sentence.

      A.     Standard of review

      The district court’s application of the Sentencing Reform Act is an issue of law
that we review de novo. United States v. Foster, 514 F.3d 821, 824 (8th Cir. 2008);
United States v. Bahena, 223 F.3d 797, 804 (8th Cir. 2000).

      B.     What the district court may consider in ruling on motions under 18
             U.S.C. § 3553(e) and U.S.S.G. § 5K1.1

             1.     18 U.S.C. § 3553(e) and U.S.S.G. § 5K1.1

        We begin with the plain language of the statute and guideline. Section 3553(e),
entitled “Limited authority to impose a sentence below a statutory minimum,” reads,
in full, as follows:

                                           -5-
      Upon motion of the Government, the court shall have the authority to
      impose a sentence below a level established by statute as a minimum
      sentence so as to reflect a defendant’s substantial assistance in the
      investigation or prosecution of another person who has committed an
      offense. Such sentence shall be imposed in accordance with the
      guidelines and policy statements issued by the Sentencing Commission
      pursuant to section 994 of title 28, United States Code.

18 U.S.C. § 3553(e) (emphasis added). Guideline § 5K1.1–entitled “Substantial
Assistance to Authorities (Policy Statement)”–provides, in turn, that “[u]pon motion
of the government stating that the defendant has provided substantial assistance in the
investigation or prosecution of another person who has committed an offense, the
court may depart from the guidelines.” U.S.S.G. § 5K1.1. “The appropriate reduction
shall be determined by the court for reasons stated that may include, but are not
limited to, consideration of the following:”

      (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;

      (5)    the timeliness of the defendant’s assistance.

Id. § 5K1.1(a). Section 5K1.1's application notes further explain that “[u]nder
circumstances set forth in 18 U.S.C. § 3553(e) and 28 U.S.C. § 994(n), as amended,
substantial assistance in the investigation or prosecution of another person who has
committed an offense may justify a sentence below a statutorily required minimum

                                         -6-
sentence.” Id., application note 1. “Substantial assistance” is defined as assistance
“directed to the investigation and prosecution of criminal activities by persons other
than the defendant.” Id., application note 2.

             2.     Governing Eighth Circuit law

       We have made clear that when a district court is ruling on a motion for
downward departure pursuant to § 3553(e) and/or § 5K1.1, that court may consider
only factors related to the defendant’s substantial assistance to the Government.
United States v. Johnson, 517 F.3d 1020, 1023 (8th Cir. 2008); United States v.
Williams, 474 F.3d 1130, 1130-32 (8th Cir. 2007); United States v. Pepper, 412 F.3d
995, 997-99 (8th Cir. 2005); see also United States v. Burns, 500 F.3d 756, 760 (8th
Cir. 2007) (en banc), vacated and remanded, 128 S. Ct. 1091 (2008); United States v.
Plaza, 471 F.3d 928, 930 (8th Cir. 2006); United States v. Saenz, 428 F.3d 1159, 1162
(8th Cir. 2005). Most crucial for our purposes here is that “[i]n reducing a sentence
below the statutory minimum under 18 U.S.C. § 3553(e) for a defendant’s substantial
assistance, a court . . . may not use the factors in 18 U.S.C. § 3553(a) to decrease the
sentence further.” Johnson, 517 F.3d at 1023.

       We emphasize today that this body of caselaw means what it plainly says, and
that this issue is clearly settled by Johnson, Williams and Pepper. In Williams, we
pointed to the significance of § 3553(e)’s title, “Limited authority to impose a
sentence below a statutory minimum.” 474 F.3d at 1132. Given that title, we
reasoned, “Congress evidently wanted statutory minimum sentences to be firmly
enforced, subject only to carefully ‘limited’ exceptions.” Id. We went on to stress
that, consistent with this limited grant of authority, § 3553(e)’s first textual sentence
permits district courts to “impose a sentence below the statutory minimum only ‘so
as to reflect a defendant’s substantial assistance.’” Id. (quoting 18 U.S.C. § 3553(e)
(emphasis added by Williams court)). As a result, if “a district court imposes a
sentence below the statutory minimum in part so as to reflect the history and

                                          -7-
characteristics of the defendant, then the court exceeds the limited authority granted
by § 3553(e).” Id. (citation omitted).

       We went on to explain, in Williams, that the limited grant of authority in
§ 3553(e)’s title and first textual sentence extends to its mandate that a penal sentence
imposed “so as to reflect a defendant’s substantial assistance” must simultaneously
be imposed “in accordance with the guidelines and policy statements issued by the
Sentencing Commission.” Id. (citing United States v. Ahlers, 305 F.3d 54, 61-62 (1st
Cir. 2002)). Because the penal sentence at issue must reflect a defendant’s substantial
assistance, we reasoned, the “guidelines and policy statements” to which the court
may refer must be those “that bear directly upon the desirability and extent of a
substantial assistance departure.” Id. (quotation omitted).

       In Pepper, we reasoned that although § 5K1.1 articulates a non-exclusive list
of “reasons” that district courts may consider in ruling on motions for downward
departure based on substantial assistance, the fact that the list names only assistance-
related considerations indicates that the Sentencing Commission intended to limit
district courts to considerations of precisely that kind. 412 F.3d at 998. Invoking the
familiar interpretive canon of noscitur a sociis,6 we explained that “[h]ad the
Sentencing Commission wished to permit courts to consider factors unrelated to the
quality of the defendant’s cooperation when departing because of that cooperation, it
seems likely that it would have promulgated a list of examples encompassing factors
unrelated to cooperation.” Id. (quotation omitted). Furthermore, “the finely reticulated
structure of the guidelines indicates that the commission was neither careless in its
selection of examples nor bent on giving courts the sort of discretion that follows from
allowing them to extend or shorten departures for any reason under the sun.” Id.


      6
       This interpretive canon “holds that words ([such as] ‘but are not limited to’)
are known by their companions, Gustafson v. Alloyd Co., 513 U.S. 561, 575 (1995).”
Pepper, 412 F.3d at 998 (additional citation omitted).

                                          -8-
Therefore, we held, “the extent of a downward departure made pursuant to § 5K1.1
can be based only on assistance-related considerations.” Id.

       Finally, we explained in Johnson and Williams that the Supreme Court’s
holdings in Kimbrough v. United States, 128 S. Ct. 558 (2007), Gall v. United States,
128 S. Ct. 586 (2007), and United States v. Booker, 543 U.S. 220 (2005), did not
“expand the district court’s authority to impose a sentence below a statutory
minimum,” Williams, 474 F.3d at 1131. Johnson, 517 F.3d at 1024. District courts
thus “properly limit[]” their § 3553(e) analysis “to the quality, nature, and significance
of the assistance [the defendant] provided.” Id.

             3.     Analysis

       Billue acknowledges that the district court’s decision to consider only
assistance-related factors in ruling on the motion for downward departure was “in
accordance with” our governing law. (Aplt. Br. at 5-7 & n.2.) He simply urges us to
reverse that governing law.

         One Eighth Circuit panel, however, “cannot overrule another’s opinion.”
United States v. Snyder, 511 F.3d 813, 818 (8th Cir. 2008) (citing United States v.
Mohr, 407 F.3d 898, 901 (8th Cir. 2005)). In short, even if we were inclined to
question our governing caselaw–which we are not–“we are bound by our precedents[,]
. . . and only the court en banc could overturn them.” United States v. Mickelson, 433
F.3d 1050, 1052 (8th Cir. 2006) (citing Bilello v. Kum & Go, LLC, 374 F.3d 656, 661
n.4 (8th Cir. 2004)).

      Under our precedents, the district court was correct to insist that it could
consider only assistance-related factors in deciding the Government’s motion for
downward departure. Therefore, we AFFIRM the district court as to this issue.



                                           -9-
      C.     The district court’s starting point in applying a downward departure to
             a statutorily mandated minimum sentence

       Billue next proposes that the district court erred by not recognizing that it had
discretion to do two things: (1) use as its starting point, in applying the downward
departure, not the statutory minimum sentence of 240 months, but rather Billue’s
“guideline calculation” sentencing range, without regard to the statutory minimum
sentence; and (2) first reduce his sentence, pursuant to the § 3553(e) motion, from the
statutory minimum to his “guideline calculation” sentence, and then further reduce
that sentence pursuant to the § 5K1.1 motion. For the reasons that follow, we reject
both arguments.

             1.     Billue’s Guideline sentence

       Guideline § 5G1.1(b) provides that “[w]here 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)
(emphasis added). See United States v. Byers, 561 F.3d 825, 826-27, 829 (8th Cir.
2009) (“Section 5G1.1(b) of the Guidelines mandates that the statutory minimum
becomes the Guidelines range if the statutory minimum is greater than the otherwise
applicable Guidelines range. . . . The ultimate ‘guidelines range’ [is] identical [to] the
statutory mandatory minimum.”); United States v. Trobee, 551 F.3d 835, 839 (8th Cir.
2009) (explaining that pursuant to § 5G1.1(b), “[f]or those situations in which the
mandatory minimum exceeds the range for the entire offense level, the ‘guideline
sentence’ would . . . be the same as the ‘guideline range,’ even if it involves a ‘range’
of only one number” (quotation omitted)).

      In Billue’s case, the statutory minimum of 240 months was greater than the
maximum of his otherwise-applicable Guidelines range of 151-188 months.
Therefore, pursuant to § 5G1.1(b), 240 months became his Guideline sentence. When

                                          -10-
the district court correctly used the statutory minimum sentence as the starting point
for applying the downward departure, then, it also–necessarily–used Billue’s
Guideline sentence as that starting point. There is no basis in the law for Billue’s
notion that the district court had discretion to elect, instead, to apply the downward
departure to the Guideline range that would have applied to him in the absence of the
mandatory minimum sentence.

             2.    Potential consecutive departures under § 3553(e) and § 5K1.1

       Billue’s argument in this context is foreclosed by our precedent. In United
States v. Rabins, 63 F.3d 721, 726-27 (8th Cir. 1995), Defendant A.L. Johnson argued
that after the sentencing court had awarded him a departure, pursuant to § 3553(e),
from his statutorily mandated minimum sentence, the court “was then free to” reduce
his sentence further below that mandatory minimum “for any reason allowed by the
guidelines or policy statements.” We explained that such an additional departure was
“not appropriate” where the Guideline upon which the proposed departure would be
based “‘by its plain terms makes no mention of departure below mandatory
minimums.’” Id. at 727 (quoting United States v. Rodriguez-Morales, 958 F.2d 1441,
1444 (8th Cir. 1992)). In short, “[a] motion of the government to depart below the
mandatory minimum under § 3553(e) does not open the door for a departure under”
statutory or Guidelines provisions that do not specifically authorize departure from
that mandatory minimum. Id.

       Here, Billue argues that after the district court awarded him a § 3553(e)
departure from his mandatory minimum sentence, the court had discretion to award
him an additional departure under Guideline § 5K1.1. However, like the Guideline
at issue in Rabins, § 5K1.1 authorizes a district court to depart downward only from
the Guidelines sentencing range; it does not authorize the court to depart downward
from a mandatory minimum sentence. Melendez v. United States, 518 U.S. 120, 126
(1996); Williams, 474 F.3d at 1131 (“A motion under § 5K1.1 authorizes the

                                        -11-
sentencing court to depart below the applicable advisory guideline range in
determining the advisory guideline sentence, [while] a § 3553(e) motion permits the
court to sentence below a statutory minimum.”). Therefore, the district court’s grant
of the Government’s § 3553(e) motion for departure from the mandatory minimum
did not “open the door for a [further] departure,” Rabins, 63 F.3d at 727, under
§ 5K1.1.

       Having granted the Government’s motion for departure pursuant to 18 U.S.C.
§ 3553(e) and U.S.S.G. § 5K1.1, the district court correctly applied that departure to
Billue’s 240-month mandatory minimum sentence. Therefore, we AFFIRM the
district court as to this issue.

      D.     Billue’s appeal as a challenge to the extent of the downward departure

       While Billue frames his appeal as a challenge to the district court’s application
of the Guidelines, the appeal may also be construed as a challenge to the extent of the
downward departure awarded by the district court. (See Aplt. Br. at 9-10 (arguing that
the district court could have awarded Billue an additional departure of 32 months).)

      Absent an allegation that the district court was motivated by an unconstitutional
motive in arriving at its downward departure, we may not review “the extent of [such]
a downward departure in the defendant’s favor.” United States v. Dalton, 478 F.3d
879, 881 (8th Cir. 2007). Whether, upon motion by the Government, to depart
downward from a mandatory minimum, and how much to so depart, is a decision that
“lies within the district court’s discretion and is virtually unreviewable on a
defendant’s appeal.” Id.; see also United States v. Berni, 439 F.3d 990, 992 (8th Cir.
2006) (explaining that the non-reviewability rule survived Booker, 543 U.S. at 220).




                                         -12-
      Here, there is no allegation of unconstitutional motive on the part of the district
court. Therefore, inasmuch as Billue’s appeal is a challenge to the extent of the
downward departure granted by the district court, we may not consider that challenge.



III.   CONCLUSION

       For the foregoing reasons, we AFFIRM the judgment of sentence.
                       ______________________________




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