                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS
                                                                FILED
                     FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                       ________________________ ELEVENTH CIRCUIT
                                                            APR 4, 2007
                             No. 06-12827                 THOMAS K. KAHN
                         Non-Argument Calendar                CLERK
                       ________________________

                D. C. Docket No. 05-00257-CR-3-SLB-PWG

UNITED STATES OF AMERICA,


                                                           Plaintiff-Appellant,

                                  versus

ALVIN DEWAYNE MADDEN,
a.k.a. Wayne,

                                                          Defendant-Appellee.


                       ________________________

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

                              (April 4, 2007)

Before BIRCH, DUBINA and BARKETT, Circuit Judges.

PER CURIAM:

     The government appeals the 53-month sentence imposed on Alvin Madden
for conspiring to distribute and possess with the intent to distribute cocaine and

marijuana. The government argues that the district court erred by (1) considering

factors unrelated to Madden’s substantial assistance in determining how much to

depart under U.S.S.G. § 5K1.1; (2) not using the applicable guidelines range, as

modified by the statutory minimum sentence, as its starting point from which to

depart under § 5K1.1; and (3) imposing an unreasonable sentence.

Consideration of Factors Under U.S.S.G. § 5K1.1

      The government first argues that the district court erred by considering

factors unrelated to Madden’s substantial assistance in determining how much to

depart under U.S.S.G. § 5K1.1.

      We review “arguments raised for the first time on appeal for plain error.”

United States v. Clark, 274 F.3d 1325, 1326 (11th Cir. 2001) (reviewing arguments

the government raised for the first time on appeal). In order to object sufficiently

before the district court to preserve an issue for appeal, a litigant’s objection must

be “in such clear and simple language that the trial court may not misunderstand it,

and if his point is so obscurely hinted at that the trial court quite excusably may fail

to grasp it, it will avail naught to disturb the judgment on appeal.” United States v.

Zinn, 321 F.3d 1084, 1087-88 (11th Cir. 2003). We

             will find plain error only where (1) there is an error in the
             district court’s determination; (2) the error is plain or

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             obvious; (3) the error affects the defendant’s substantial
             rights in that it was prejudicial and not harmless; and (4)
             the error seriously affects the fairness, integrity, or public
             reputation of judicial proceedings.

Clark, 274 F.3d at 1326. The government may show plain error where the error

“dramatically impacted the sentence, and thereby affected 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.” Id.

at 1329 (quotation and alterations omitted).

      “[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 may 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) (quoted in Martin, 455 F.3d at

                                           3
1235). “[I]n meting out a substantial assistance departure the 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) (citing

U.S.S.G. § 5K1.1, comment. (backg’d.)).

      The government failed to object before the district court on the ground that

the district court was considering impermissible factors. Instead, the government’s

only objections concerned the extent of the district court’s departure. The

government’s objection to the extent of the departure did nothing to alert the

district court that the government believed that the district court was considering

impermissible factors. Therefore, because the government failed clearly to

articulate its objection to the district court’s consideration of allegedly

impermissible factors, we review for plain error. See Zinn, 321 F.3d at 1088.

      In this case, the district court repeatedly considered factors that were

unrelated to Madden’s assistance. In particular, the district judge stated that she

was looking at “deterrence and what a person can do when they get out” and “what

is a just sentence,” in addition to asking “is he going to go back and start dealing

drugs again?” The district judge also stated that she was “kind of changing [her]

view a little more favorably towards [Madden]” after she learned that he had not

been involved with drugs after he got out of prison in 2004. Such considerations



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are impermissible factors for a departure under § 5K1.1 because they are unrelated

to Madden’s assistance to authorities. See Martin, 455 F.3d at 1236. Therefore,

the district court committed error that was plain. Furthermore, the error was

prejudicial to the government’s interest in Madden receiving a just sentence in light

of the extreme departure the district court granted after it considered the

impermissible factors. In addition, granting such an extreme departure on

impermissible grounds affects the “fairness, integrity, or public reputation of

judicial proceedings.” Clark, 274 F.3d at 1326. Accordingly, the district court

committed plain error, and we remand this case for resentencing.

Starting Point for U.S.S.G. § 5K1.1 Departure

      The government argues that the district court erred by not using the

applicable guidelines range, as modified by the statutory minimum sentence, as its

starting point from which to depart under U.S.S.G. § 5K1.1.

      “The district court’s interpretation of the sentencing guidelines is subject to

de novo review on appeal, while its factual findings must be accepted unless

clearly erroneous.” United States v. Ellis, 419 F.3d 1189, 1192 (11th Cir. 2005)

(quotation omitted). Although Booker has rendered the guidelines range advisory,

the correct application of individual guideline provisions is obligatory. United

States v. Brehm, 442 F.3d 1291, 1300 (11th Cir.), cert. denied, 127 S. Ct. 457



                                           5
(2006). We review the district court’s interpretation of the guidelines de novo.

United Crisp, 454 F.3d at 1288. We have stated that “the Guidelines do not

contemplate a downward departure for substantial assistance until after the court

applies section 5G1.1(b), which establishes that the applicable guideline sentence

shall be the mandatory minimum sentence.” United States v. Head, 178 F.3d 1205,

1208 (11th Cir. 1999). Therefore, the mandatory minimum sentence is the

appropriate starting point for a § 5K1.1 departure. Id. at 1206-07.

      The district judge stated that she had “been looking more at departing from

what the Guideline level would have been absent the statutory minimum sentence.”

This is error because we have held that the proper departure point is the guideline

range after the statutory minimum has been applied. See Head, 178 F.3d at 1208.

Reasonableness of Madden’s Sentence

      We review the defendant’s ultimate sentence for reasonableness. United

States v. Winingear, 422 F.3d 1241, 1244 (11th Cir. 2005).

      We need not decide the reasonableness of Madden’s current sentence

because we are remanding the case for resentencing.

      VACATED AND REMANDED.




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