                                 No. 96-2143


United States of America,             *
                                      *
           Appellee,                  *
                                      *
     v.                               *    Appeal from the United States
                                      *    District Court for the
Michael Joseph Schaffer,              *    Southern District of Iowa
                                      *
           Appellant.                 *


                      Submitted: November 19, 1996
                         Filed: April 1, 1997


Before FAGG and HANSEN, Circuit Judges, and MAGNUSON,* District Judge.


MAGNUSON, District Judge.


     Michael Joseph Schaffer challenges the thirty-month sentence imposed
by the district court1 after he pled guilty to using or carrying a firearm
during or in relation to a drug trafficking crime, in violation of 18
U.S.C. § 924(c)(1).    We affirm.


                                      I.


     Michael Schaffer was arrested on drug charges during the execution
of a search warrant at his residence on November 9, 1995.       Within hours
after his arrest, Schaffer waived his Miranda rights




     *
     The Honorable PAUL A. MAGNUSON, Chief Judge, United States
District Court for the District of Minnesota, sitting by
designation.
     1
      The Honorable Charles R. Wolle, Chief Judge, United States
District Court for the Southern District of Iowa.
and agreed to cooperate with authorities.               He told police about his
involvement in a conspiracy to distribute cocaine base (crack cocaine),
named his suppliers, and directed police to an undiscovered shotgun.
Schaffer also admitted that he delivered the shotgun to a co-defendant in
exchange for crack cocaine, thereby using and carrying a firearm during and
in relation to a drug trafficking crime.
     Schaffer entered into a plea agreement with the government shortly
after his arrest.   He agreed to plead guilty to Count 2 of the Indictment,
Using and Carrying a Firearm During and in Relation to a Drug Trafficking
Crime,   in   violation   of   18    U.S.C.   §   924(c)(1),   and   Count   4   of   the
Indictment, Possession with Intent to Distribute Cocaine Base, in violation
of 21 U.S.C. § 841(a)(1).      In exchange, the government agreed to move for
a downward departure of twenty percent based on Schaffer’s substantial
assistance to authorities pursuant to 18 U.S.C. § 3553(e) and § 5K1.1 of
the United States Sentencing Guidelines (the Guidelines).                    The plea
agreement also specifically provided that Schaffer’s sentence was to be
determined under traditional Guidelines criteria.


     Schaffer’s Presentence Investigation Report determined that without
a downward departure, the appropriate Guidelines sentencing range was 121
to 151 months for the drug count in addition to a consecutive 60-month
sentence for the gun count.         The calculation of Schaffer’s sentencing range
included a three-level reduction for acceptance of responsibility permitted
by § 3E1.1 of the Guidelines.           At sentencing, Schaffer argued that the
statutory mandatory minimum sentence for a § 924(c)(1) violation should not
be considered by the district court if the court granted the government’s
motion for downward departure under 18 U.S.C. § 3553(e), which permits the
court to impose a sentence below a statutory minimum.                Rather, Schaffer
contended, the court should




                                          -2-
disregard the statutory sentence, apply a two-level enhancement to the drug
count for possession of a firearm, and sentence in accordance with U.S.S.G.
§ 2D1.1(b)(1).


     The     district    court    disagreed    and   instead    determined    that   the
mandatory minimum sentence of sixty months was the appropriate starting
point for any downward departure as to the § 924(c)(1) count.                 The court
granted the government’s motion for downward departure and imposed a total
sentence of ninety-one months:         sixty-one months on the drug count and
thirty months on the gun count.        This sentence represented a reduction on
each count of approximately fifty percent rather than the twenty percent
reduction requested by the government.


     Schaffer also asked the district court to reduce his § 924(c)(1)
sentence based on acceptance of responsibility, either as an adjustment or
as a departure for “extraordinary” reasons.               The court found that the
Sentencing    Commission    had    already    accounted   for    the   type   of   early
assistance that Schaffer provided to the government via the three-level
acceptance of responsibility reduction that Schaffer received under § 3E1.1
of the Guidelines.      Schaffer appeals his sentence on the § 924(c)(1) count.


                                         II.
                                         A.


     Schaffer argues first that the district court erred in using the
sixty-month mandatory minimum sentence prescribed in 18 U.S.C. § 924(c)(1)
as the starting point for its downward departure based on Schaffer’s
substantial assistance.      The proper approach,
Schaffer contends, would have been to increase his drug sentence by




                                         -3-
two levels for possession of a firearm pursuant § 2D1.1(b)(1) instead of
imposing the consecutive sixty-month sentence.               We review de novo a
district court’s application of the Guidelines and the relevant statutes.
See United States v. Polanco, 53 F.3d 893, 895 (8th Cir. 1995), cert.
denied, 116 S. Ct. 2555 (1996); United States v. Hensley, 36 F.3d 39, 41
(8th Cir. 1994).


     Congress provided district courts with limited authority to sentence
a cooperating defendant below a mandatory minimum sentence in 18 U.S.C.
§ 3553(e), which provides that
     Upon motion of the Government, the court shall have the
     authority to impose a sentence below a level established by
     statute as 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 . . . .

18 U.S.C. § 3553(e).       We have recognized implicitly that § 924(c)(1)
mandates the type of minimum sentence that a district court may decrease
following a government’s § 3553(e) motion for substantial assistance.            Cf.
United States v. Carnes, 945 F.2d 1013, 1014 (8th Cir. 1991) (finding that
district court understood its authority to impose sentence of less than
five years on § 924(c)(1) conviction but chose not to do so).         As Schaffer
acknowledges, the district court would have been unable to depart downward
on the § 924(c)(1) conviction if the government had not filed its § 3553(e)
motion.   See United States v. Rodriguez-Morales, 958 F.2d 1441, 1447 (8th
Cir.), cert. denied, 506 U.S. 940 (1992).
     Once a district court grants a § 3553(e) motion, thus permitting
sentencing below the statutory minimum, it must impose a sentence “in
accordance   with   the   guidelines   and   policy   statements   issued   by   the
Sentencing Commission.”     18 U.S.C. § 3553(e).       The




                                       -4-
Guidelines do not establish a base offense level for § 924(c)(1) or provide
a method by which a Guideline sentence for § 924(c)(1) could be calculated;
rather, the Guidelines direct courts to sentence in accordance with the
statute.   See U.S.S.G. § 2K2.4(a).         The resulting course of action for the
district court is circular; § 3553(e) refers the court to the Guidelines,
which in turn refer it back to the statutory minimum sentence.                Schaffer
argues that by departing downward from the mandatory minimum sentence of
sixty months instead of a sentence calculated pursuant to the Guidelines,
the district court ignored the portion of § 3553(e), quoted above, that
requires   courts   to   rely   on    the   Guidelines   when   calculating   reduced
sentences.    To disregard the second sentence of § 3553(e), Schaffer
reasons, would violate the long-established canon of statutory construction
that all sections of a statute be given effect. See In re Windsor on the
River Assocs., 7 F.3d 127, 130 (8th Cir. 1993).
     Schaffer maintains that the only way to give meaning to the entire
text of § 3553(e) is to determine the initial sentence on both counts of
his conviction as if the mandatory minimum sentence did not exist and then
reduce that initial sentence in accordance with all Guideline principles.
Because there is no specific offense level for a § 924(c)(1) conviction,
§ 2X5.1 of the Guidelines instructs the district court to apply the most
analogous offense guideline.         U.S.S.G. § 2X5.1.    Schaffer believes that a
two-level enhancement for possession of a firearm, listed as a specific
offense characteristic of a drug trafficking crime under § 2D1.1(b)(1), is
the Guideline offense most analogous to using or carrying a firearm during
or in relation to a drug trafficking crime.         If we were to adopt Schaffer’s
reasoning, his total offense level on the drug count would increase from
31 to 33, the 60-month consecutive sentence would be eliminated, and his
sentencing range would decrease from 181-211 (121-151 plus an additional
60 months)




                                            -5-
to 151-188. Schaffer asserts that such an approach would calculate his
sentence in accordance with the Guidelines, as the second sentence of
§ 3553(e) requires.


     Whether the mandatory minimum sentence required by § 924(c)(1) is the
proper starting point for a downward departure made pursuant to § 3553(e)
is a question of first impression in this circuit.      The only other court
of appeals to address the issue as it pertains specifically to § 924(c)(1)
found that the minimum sentence is the appropriate point of departure.    See
United States v. Aponte, 36 F.3d 1050, 1052 (11th Cir. 1994).     In Aponte,
the Eleventh Circuit rejected without discussion the defendant’s argument
that the district court should have equated his § 924(c)(1) conviction with
the unlawful receipt, possession, or transportation of firearms, U.S.S.G.
§ 2K2.1, and departed downward from a base offense level of 12 as provided
by § 2K2.1(a)(7) of the Guidelines.        See Aponte, 36 F.3d at 1052.   The
court approved of the district court’s starting point of base offense level
24, which correlated to a sixty-month sentence based on the defendant’s
criminal history category of I.    See id. at 1051.


     We agree with the Eleventh Circuit that the mandatory minimum
sentence of § 924(c)(1) is the proper departure point following a § 3553(e)
motion based on substantial assistance.     Section 3553(e) directs district
courts to refer to the Guidelines when departing downward because of a
defendant’s substantial assistance.         The Guidelines that pertain to
§ 924(c)(1) refer back to the statute, which requires a sixty-month minimum
sentence.   U.S.S.G. § 2K2.4(a).   The most logical conclusion to draw from
these circular references is that the mandatory minimum sentence becomes
the Guideline sentence for purposes of § 3553(e).       Cf. United States v.
Hayes, 5 F.3d 292, 295 (7th Cir. 1993) (finding that




                                     -6-
sentencing   court   correctly   departed   downward    from   mandatory   minimum
sentence imposed by 21 U.S.C. § 841(a)(1) rather than the lower Guideline
range that would have applied absent statutory minimum; citing U.S.S.G.
§ 5G1.1(b), which 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”).
The district court correctly applied the Guidelines by departing downward
from the sixty-month mandatory minimum sentence in sentencing Schaffer for
his § 924(c)(1) conviction.


     Moreover, the conduct that resulted in Schaffer’s conviction under
§ 924(c)(1), using or carrying a firearm during or in relation to a drug
trafficking crime, is significantly different and more serious than the
conduct required for a two-level enhancement under § 2D1.1(b)(1), mere
possession of a firearm.    See Bailey v. United States, 116 S. Ct. 501, 506,
509 (1995) (holding that conviction for “use” of firearm under § 924(c)(1)
requires “active employment;” § 924 cannot be used to penalize drug-
trafficking offenders for firearm possession).         Schaffer’s approach would
permit Schaffer to be sentenced for a much lesser offense than the one to
which he pled guilty.      Such a result would fly in the face of the strict
penalty that Congress has mandated for those who use or carry a firearm
while trafficking in drugs.


                                      B.


     Schaffer also argues that the district court should have further
reduced his § 924(c)(1) sentence for acceptance of responsibility, either
as an adjustment or a departure.       Schaffer correctly states that if a
statute requires a consecutive sentence, as § 924(c)(1) does, that sentence
must be determined and imposed




                                      -7-
independently of the sentences on the other counts.               U.S.S.G. § 5G1.2(a).
Consequently,      Schaffer    contends,      the    acceptance     of   responsibility
adjustment provided in § 3E1.1 of the Guidelines, which the district court
applied   to   the   drug     count   at    sentencing,   should     also   be   applied
independently to the gun count.            The government counters by arguing that
because the § 924(c)(1) sentence is calculated independently and is
statutorily mandated, it is not available for any Guideline adjustments.


      The Guidelines provide that the adjustments set forth in Chapter
Three, including acceptance of responsibility, are to be applied to the
base offense level.       See U.S.S.G. § 1B1.4(c)-(e).            The implication from
this Guideline instruction is that adjustments are not to be applied to
mandatory statutory sentences.         See United States v. Rodriguez, 64 F.3d
638, 641 (11th Cir. 1995) (finding that Chapter Three adjustments are no
longer relevant once a statutory maximum sentence becomes the Guideline
sentence).     The district court was correct not to adjust Schaffer’s
§ 924(c)(1) conviction for acceptance of responsibility.
      Alternatively, Schaffer maintains that the district court should have
departed downward further on the § 924(c)(1) count based on extraordinary
acceptance of responsibility.              He contends that to disallow such a
departure again ignores the second sentence of § 3553(e) by prohibiting the
application of the Guidelines to his sentence and cites to an Eleventh
Circuit case that purports to authorize such a departure.                Rodriguez, 64
F.3d at 643(holding that district court has discretion to depart downward
for   acceptance     of   responsibility      when   §   5G1.1(a)    renders     §   3E1.1
ineffectual in reducing defendant’s actual sentence).


      We recently held that “a motion by the government under § 3553(e) for
substantial assistance [is]‘the only authority for




                                            -8-
[a] district court to depart below the statutorily mandated minimum
sentence.’”2      United States v. Rabins, 63 F.3d 721 (8th Cir. 1995) (quoting
United States v. Rodriguez-Morales, 958 F.2d 1441, 1444 (8th Cir.), cert.
denied, 506 U.S. 940 (1992)), cert. denied sub nom. Johnson v. United
States, 116 S. Ct. 1031 (1996).                Furthermore, the Guidelines do not
ordinarily      recognize    acceptance      of    responsibility      as    a   reason   for
departure, U.S.S.G. § 5K, thus negating Schaffer’s argument that we
disregarded the second sentence of § 3553(e) in deciding Rabins.                    Section
§ 3553(e) does not authorize district courts to depart below the mandatory
minimum for any reason other than substantial assistance.                   Schaffer is not
entitled to any further reduction for acceptance of responsibility.
        As a final note, we are aware of Schaffer’s contention that the
district court did not rule on his motion for further acceptance of
responsibility at sentencing, thus requiring us to remand for resentencing.
We disagree.      A close examination of the sentencing transcript reveals that
the district court did in fact consider and rule upon Schaffer’s request
for   departure     based    on    extraordinary      acceptance      of    responsibility.
Throughout the sentencing transcript, the district court often used the
words       “substantial    assistance”      interchangeably    with        “acceptance    of
responsibility.”           The    district    court   found    that    Schaffer’s     early
cooperation, while substantially assisting the government, did not warrant
additional departure because “the guidelines commission has already taken
into account the early assistance that [Schaffer] provided in giving him
a three level--in considering that he would




        2
      In 1994, Congress enacted 18 U.S.C. § 3553(f), the safety
valve provision, which allows district courts to depart from the
statutory minimum sentence under specified circumstances.
Section § 3553(f) applies only to certain offenses under the
Controlled Substances Act or the Controlled Substances Import and
Export Act and does not pertain to violations of 18 U.S.C.
§ 924(c)(1).

                                             -9-
be eligible for a three-level reduction for substantial assistance which
he received.”   (Tr. at 187-88.)   The district court correctly calculated
Schaffer’s sentence in every respect.


     For the reasons stated, the judgment of the district court is
affirmed.


     A true copy.


            Attest:


                 CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT




                                   -10-
