                                                                 FILED
                                                     United States Court of Appeals
                      UNITED STATES COURT OF APPEALS         Tenth Circuit

                                 TENTH CIRCUIT                               May 29, 2012
                        ___________________________________
                                                                         Elisabeth A. Shumaker
                                                                             Clerk of Court
UNITED STATES OF AMERICA,

       Plaintiff-Appellee,
v.                                                            No. 11-1517
JUAN PENA-RAMIREZ,                                (D.C. No. 1:11-CR-00105-JLK-1)
                                                             (D. Colo.)
       Defendant-Appellant.
                   ____________________________________
                            ORDER AND JUDGMENT*
                       ____________________________________

Before ANDERSON and BALDOCK, Circuit Judges, and BRORBY, Senior
Circuit Judge.**
                 ____________________________________

       Defendant pleaded guilty to conspiracy to possess with the intent to distribute 50

grams or more of methamphetamine in violation of 21 U.S.C. §§ 841(a)(1),

(b)(1)(A)(viii) & 846. This offense carries a statutory minimum of 120 months.

Id. § 841(b)(1)(A)(viii).    For sentencing purposes, the district court calculated

Defendant’s base offense level as 32.      The district court added two levels because

Defendant used a firearm during the offense and another two levels because Defendant

attempted to obstruct justice, resulting in an offense level of 36. The district court

       *
        This order and judgment is not binding precedent except under the doctrines
of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
       **
         After examining the parties’ briefs and the appellate record, this panel has
determined unanimously that oral argument would not materially assist the determination
of this appeal. See Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
subtracted three levels based on Defendant’s acceptance of responsibility. The district

court denied the Government’s 18 U.S.C. § 3553(e) motion for a variance below the

statutory minimum, but granted the Government’s motion for a downward departure of

four levels pursuant to U.S.S.G. § 5K1.1 (2011).1 This resulted in a final offense level of

29. Based on a criminal history category of I, the applicable Guidelines range for an

offense level of 29 is 87 to 108 months. Without the departure under § 5K1.1, the

offense level would have been 33, with an applicable range of 135 to 168 months. Before

imposing Defendant’s sentence, the district court considered the 3553(a) factors and

noted Defendant’s “perseverant disregard for the law,” “the several drug transactions . . .

[when the] defendant [was] armed with lethal weapons . . . including automatic and

semiautomatic firearms,” and “[the defendant’s] anti-social mindset utterly lacking in

moral awareness.” Rec. vol. 2, at 28. The court further noted Defendant showed “no

suggestion of remorse, only regret for getting caught,” and that his “prospects for

recidivistic behavior are nearly certain” based on his “repeated drug sales, repeated


      1
        Our circuit’s nomenclature regarding “departure” and “variance” has at times
been inconsistent. We have clarified, however, that

      when a court reaches a sentence above or below the recommended
      Guidelines range through application of Chapters Four or Five of the
      Sentencing Guidelines, the resulting increase or decrease is referred to as a
      ‘departure.’ When a court enhances or detracts from the recommended
      range through application of § 3553(a) factors, however, the increase or
      decrease is called a ‘variance.’

United States v. Atencio, 476 F.3d 1099, 1101 n.1 (10th Cir. 2007) (en banc) overruled in
part on other grounds by Irizarry v. United States, 553 U.S. 708 (2008). A decision to
impose a sentence below the statutory minimum is also properly labeled a “variance.”
Pepper v. United States, 131 S. Ct. 1229, 1245–46 n. 12 (2011).
                                           -2-
illegal entries, and indifference to the truth . . . .” Id. at 28, 29. Based on these factors,

the district court sentenced Defendant to the statutory minimum of 120 months. On

appeal, Defendant argues his sentence is substantively unreasonable.              Exercising

jurisdiction under 18 U.S.C. § 3742, we affirm.

                                               I.

       Defendant only challenges the substantive reasonableness of his sentence. We

review the substantive reasonableness of a sentence under a deferential abuse-of-

discretion standard. Gall v. United States, 552 U.S. 38, 51 (2007). “A district court

abuses its discretion when it renders a judgment that is arbitrary, capricious, whimsical,

or manifestly unreasonable.” United States v. Beltran, 571 F.3d 1013, 1018 (10th Cir.

2009) (internal quotations omitted). “Substantive reasonableness involves whether the

length of the sentence is reasonable given all the circumstances of the case in light of the

factors set forth in 18 U.S.C. § 3553(a).” United States v. Conlan, 500 F.3d 1167, 1169

(10th Cir. 2007). As we stated in Conlan,

       [A] district court’s job is not to impose a reasonable sentence. Rather, a
       district court’s mandate is to impose a sentence sufficient, but not greater
       than necessary, to comply with the purposes of 18 U.S.C. § 3553(a)(2).
       Reasonableness is the appellate standard of review in judging whether a
       district court has accomplished its task.

Id. (alteration in original) (internal quotations omitted).

       We first clarify the appropriate calculation of the Guidelines range. Both the

district court and the parties mistakenly identified the applicable Guidelines range as

87 to 108 months. They failed to account for the effect of the statutory minimum on the

Guidelines.    “Where a statutorily required minimum sentence is greater than the

                                             -3-
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). The Guidelines’

commentary provides further clarity: “If the applicable guideline range is 41–51 months

and there is a statutorily required minimum sentence of 60 months, the sentence required

by the guidelines under subsection (b) is 60 months; a sentence of more than 60 months

would be a guideline departure.” § 5G1.1 cmt. Therefore, the applicable range for

Defendant was not 87 to 108 months, but 120 months. We now address Defendant’s

arguments in light of the applicable Guidelines range.

                                           A.

      Defendant first argues the district court imposed an unreasonable sentence when it

“refused to downward depart . . . without any reference to the defendant’s substantial

assistance” and “wholly ignored his cooperation with and assistance to the

Government . . . .” Aplt. Br. at 12, 13. That is, he appears to argue the district court

failed to account for his substantial assistance because it denied the Government’s motion

under 18 U.S.C. § 3553(e). We address in turn the district court’s decisions with respect

to the Government’s motions under § 5K1.1 and § 3553(e).

      As noted, the Guidelines range was not 87 to 108 months after the court granted

the § 5K1.1 motion. A motion under § 5K1.1 does not authorize a district court to depart

downward from a statutory minimum because a 5K1.1 departure can only affect the

Guidelines range. Melendez v. United States, 518 U.S. 120, 127 (1996). Because the

correct calculation of the Guidelines range after the § 5K1.1 departure was the same as

the statutory minimum, by operation of § 5G1.1(b), the district court imposed the lowest

                                           -4-
sentence allowed by the Guidelines. Furthermore, Defendant did in fact receive a lower

sentence as a result of his substantial assistance. The § 5K1.1 departure decreased

Defendant’s applicable range from 135–168 months to the statutory minimum of 120

months. Therefore, the court did consider Defendant’s substantial assistance when it

granted the § 5K1.1 departure and imposed the statutory minimum. Defendant’s

argument to the contrary is demonstrably false.

      Regarding the district court’s denial of the Government’s 18 U.S.C. § 3553(e)

motion, a district court has discretion whether to grant or deny a motion under § 3553(e).

United States v. Horn, 946 F.2d 738, 746 (10th Cir. 1991); see also United States v.

McCarthy, 97 F.3d 1562, 1577–78 (8th Cir. 1996) (holding that the district court did not

err when it granted a § 5K1.1 motion but denied a § 3553(e) motion). The district court

could have denied both of the Government’s motions. United States v. Ollson, 413 F.3d

1119, 1120 (10th Cir. 2005); Horn, 946 F.2d at 746.         Yet, the district court took

Defendant’s substantial assistance into account by granting the Government’s motion for

a downward departure pursuant to § 5K1.1. The court simply chose, in its discretion, not

to vary below the statutory minimum pursuant to § 3553(e), but instead to impose the

statutory minimum. That a district court granted a requested § 5K1.1 departure and

denied a requested § 3553(e) variance does not show a sentence is unreasonable.

      In reviewing the reasonableness of Defendant’s sentence, we must consider the

grounds for a requested departure or variance. See United States v. Chavez-Diaz, 444

F.3d 1223, 1229 (10th Cir. 2006). Defendant argues his sentence is unreasonable in light



                                          -5-
of his substantial assistance to the Government.        The Government’s motion for a

downward variance pursuant to § 3553(e) said:

       While the government believes the information provided by the defendant
       during his proffer interview was complete and truthful, agents were not
       able to pursue many of the avenues of investigation provided by the
       defendant, as he had alerted others of the federal investigation after
       initially meeting with agents at the Jefferson County Jail but prior to his
       formal proffer interview.

Rec. vol. 1, at 58 (emphasis added). Although the record does not reflect the district

court’s reasoning for denying the Government’s § 3553(e) motion, the district court could

have easily considered the extent of Defendant’s assistance in denying the Government’s

motion for a variance below the Guidelines. Such consideration was proper and does not

result in a judgment that is arbitrary, capricious, whimsical, or manifestly unreasonable.

                                            B.

       Defendant’s second argument is that “any . . . factors [in § 3553(a)] the trial court

relied on in calculating his sentence should have been weighed against those factors in

the defendant’s favor, i.e., acceptance of responsibility and substantial assistance.” Aplt.

Br. at 13. As best we can tell, Defendant is arguing that his substantial assistance and his

acceptance of responsibility should have been included in the district court’s balancing of

the § 3553(a) factors. Section 3553(a) lists exclusive factors to be considered in imposing

a sentence, none of which expressly or impliedly reference “substantial assistance” or

“acceptance of responsibility.” See 18 U.S.C. § 3553(a). Furthermore, Tenth Circuit

precedent reflects separate analyses for a variance under § 3553(e) and determining an

appropriate sentence under § 3553(a). See, e.g., United States v. A.B., 529 F.3d 1275,


                                           -6-
1286–87 (10th Cir. 2008) (describing different analytical steps for a § 3553(e) variance

and a § 3553(a) variance). The record shows the district court properly considered the §

3553(e) motion separate from the § 3553(a) factors. Even if the district court could

consider Defendant’s substantial assistance and acceptance of responsibility as part of the

§ 3553(a) factors, § 3553(a) does not authorize a district court to vary below the statutory

minimum.     See 18 U.S.C. § 3553 (providing authority to depart from the statutory

minimum under only § 3553(e) and (f)); see also United States v. Altamirano-Quintero,

511 F.3d 1087, 1089–90 (10th Cir. 2007) (noting the defendant had “two means available

to him to avoid” a mandatory minimum sentence through § 3553(e) and (f)); United

States v. Kellum, 356 F.3d 285, 289 (3d Cir. 2004) (“These two narrow exceptions [in

§ 3553(e) and (f)] are the only authority a district court has to depart below a mandatory

minimum sentence . . . .”). Therefore, the district court did not abuse its discretion by

applying separate analyses for a variance under § 3553(a) and a variance under § 3553(e).

       Reasonableness of a sentence focuses on the district court’s consideration of the

factors in § 3553(a). Conlan, 500 F.3d at 1169. The district court considered the 3553(a)

factors in citing Defendant’s “perseverant disregard for the law,” “the several drug

transactions . . . [when the] defendant [was] armed with lethal weapons . . . including

automatic and semiautomatic firearms,” “[the defendant’s] anti-social mindset utterly

lacking in moral awareness,” that Defendant showed “no suggestion of remorse, only

regret for getting caught,” and that his “prospects for recidivistic behavior are nearly

certain” based on his “repeated drug sales, repeated illegal entries, and indifference to the

truth . . . .” Rec. vol. 2, at 28, 29. Based on these § 3553(a) factors, the district court was

                                             -7-
justified in imposing the statutory minimum sentence.         Accordingly, Defendant’s

sentence was substantively reasonable.

      AFFIRMED.


                                         Entered for the Court,



                                         Bobby R. Baldock
                                         United States Circuit Judge




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