                               UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                               No. 08-4988


UNITED STATES OF AMERICA,

                  Plaintiff – Appellant,

             v.

JOHN S. ANDERSON,

                  Defendant – Appellee.



Appeal from the United States District Court for the Northern
District of West Virginia, at Elkins.      John Preston Bailey,
Chief District Judge. (2:07-cr-00047-REM-1)


Submitted:    March 18, 2009                 Decided:   April 23, 2009


Before WILKINSON, TRAXLER, and KING, Circuit Judges.


Vacated and remanded by unpublished per curiam opinion.


Sharon L. Potter, United States Attorney, Shawn Angus Morgan,
Assistant United States Attorney, Clarksburg, West Virginia, for
Appellant.   Thomas G. Dyer, DYER LAW FIRM, Clarksburg, West
Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

               John       S.     Anderson       pled       guilty       pursuant      to   a   plea

agreement          to    manufacturing      100        or    more       marijuana     plants,     in

violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B) (2006), and

was     sentenced         to     a     five-year       probationary            sentence.         The

Government appealed, asserting that although Anderson met the

requirements for application of the safety-valve under 18 U.S.C.

§ 3553(f)          (2006)       and,    accordingly,           the       district     court      was

justified          in    sentencing       him        below     the       five-year      statutory

mandatory minimum, the district court lacked authority to impose

a probationary sentence under 18 U.S.C. § 3561(a)(1) (2006).                                     We

hold    that       the    district       court       was    prohibited         from    sentencing

Anderson to a probationary sentence.

               Section          841(b)(1)(B)         carries        a    maximum      penalty     of

forty years in prison and is classified as a Class B felony.

See 18 U.S.C. § 3559(a)(2) (2006) (classifying an offense with a

twenty-five year or more maximum penalty as a Class B felony).

Under        the     plain       language       of     18     U.S.C.          § 3561(a)(1),       an

individual convicted of a Class B felony may not be sentenced to

a     term    of        probation.         18     U.S.C.       § 3561(a)(1)           (2006)     (“A

defendant          who    has    been     found       guilty    of       an    offense     may    be

sentenced to a term of probation unless . . . the offense is a

Class A or Class B felony and the defendant is an individual.”).



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            Moreover,            § 841(b)(1)(B)        explicitly        states    that

“[n]otwithstanding any other provision of law,” a district court

shall not place on probation any person sentenced under that

subparagraph.     See 21 U.S.C. § 841(b)(1)(B).                    Accordingly, even

though the district court was justified in sentencing Anderson

below the statutory five-year mandatory minimum based on his

safety-valve      qualification,                  § 841(b)(1)(B)’s        proscription

against probation acted as a floor to any possible sentence.

See United States v. Dickerson, 381 F.3d 251, 258-60 (3d Cir.

2004) (holding that probationary sentences are barred where a

defendant   is    convicted          of   a   Class    B     felony     notwithstanding

eligibility for the safety valve); United States v. Green, 105

F.3d 1321, 1323-24 (9th Cir. 1997) (“We therefore hold that the

safety valve permits the court to disregard the mandatory 10-

year term of imprisonment contained in § 841, but that probation

is   prohibited       as     a     sentencing       option    under     the   remaining

provisions of § 841 and by the Guidelines themselves.”).

            Despite the foregoing, Anderson asserts that § 3553(f)

trumps the statutory prohibition on probationary sentences under

§ 841(b)(1)(B).       In support of this argument, Anderson relies on

this court’s holding in United States v. Daiagi, 892 F.2d 31

(4th Cir. 1989).           In Daiagi, this court held that a probationary

sentence    for   a        Class    B     felony     (i.e.,    a   21    U.S.C.   § 846



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conviction)         is    authorized      upon    the     Government’s        substantial

assistance motion under 18 U.S.C. § 3553(e) (2006).                           Id. at 33.

            Daiagi        is    distinguishable         because      the   court    limited

its   holding       to    situations      where     the    Government         has   made   a

substantial assistance motion.               Daiagi, 892 F.2d at 33.                Because

the Government did not make a substantial assistance motion in

this case but actually opposed the imposition of a probationary

sentence,      Daiagi’s          narrow     exception           to     § 3561(a)(1)        is

inapplicable.            Moreover, because the version of § 846 at issue

in    Daiagi    did       not    explicitly       incorporate         §    841(b)(1)(B)’s

penalties      as    its    own,    there    was    no     additional         proscription

against probation for such an offense.

            Based          on    the   foregoing,          we        affirm     Anderson’s

conviction but vacate and remand the matter for resentencing

consistent with this opinion.                    We dispense with oral argument

because the facts and legal contentions are adequately presented

in the materials before the court and argument would not aid the

decisional process.

                                                                  VACATED AND REMANDED




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