                                                                                     [PUBLISH]

                       IN THE UNITED STATES COURT OF APPEALS

                                FOR THE ELEVENTH CIRCUIT
                                                                                  FILED
                                  ________________________              U.S. COURT OF APPEALS
                                                                          ELEVENTH CIRCUIT
                                         No. 98-6749                      SEPTEMBER 29, 2000
                                  ________________________                 THOMAS K. KAHN
                                                                                CLERK
                               D. C. Docket No. 96-00195-CR-N-1


UNITED STATES OF AMERICA,
                                                                     Plaintiff-Appellee,
                                                                     Cross-Appellant,

                                              versus

DARRELL SIMPSON,
                                                                     Defendant-Appellant,
                                                                     Cross-Appellee.

                                  ________________________

                          Appeals from the United States District Court
                              for the Middle District of Alabama
                                _________________________

                                      (September 29, 2000)

Before TJOFLAT, MARCUS and KRAVITCH, Circuit Judges.

MARCUS, Circuit Judge:

       Darrell Simpson appeals his 352-month sentence resulting from his conviction on charges

of conspiracy to possess with intent to distribute cocaine base, two counts of distribution of

cocaine base, and two counts of carrying a firearm during a drug-trafficking crime. The

Government cross-appeals arguing that the district court abused its discretion in giving Simpson

a 240-month downward departure from the mandatory minimum sentencing regime embodied in
21 U.S.C. §§ 841, 851 and 18 U.S.C. § 924(c)(1) on the grounds that the mandatory minimum

overrepresented the gravity of Simpson’s offenses. Because we find that the district court

plainly erred in determining the drug quantity attributable to Simpson and abused its discretion

in departing downward from the mandated sentence, we vacate the district court’s sentence and

remand for re-sentencing.

                                                 I.

       The facts and procedural history are straightforward. On October 22, 1996, a federal

grand jury charged Simpson with unlawful distribution of a controlled substance in violation of

21 U.S.C. § 841(a)(1) and with the use and carrying of a firearm during and in relation to a drug-

trafficking crime in violation of 18 U.S.C. § 924(c)(1). On January 2, 1997, a superseding

indictment expanded the charges against Simpson alleging the following drug and firearm

counts: Count I - conspiracy to possess with intent to distribute cocaine base from May 15, 1996

through November 15, 1996, in violation of 21 U.S.C. §§ 841(a)(1) & 846; Count II - unlawful

distribution of a controlled substance and aiding and abetting on May 17, 1996, in violation of 21

U.S.C. § 841(a)(1); Count III - unlawful distribution of a controlled substance and aiding and

abetting on May 23, 1996, in violation of 21 U.S.C. § 841(a)(1); Count IV - use and carrying of a

firearm during and in relation to a drug trafficking crime on May 23, 1996, in violation of 18

U.S.C. § 924(c)(1); Count V - unlawful distribution of a controlled substance on June 12, 1996,

in violation of 21 U.S.C. 841(a)(1); and, finally, Count VI - use and carrying of a firearm during

and in relation to a drug trafficking crime on June 12, 1996, in violation of 18 U.S.C. §

924(c)(1). The superseding indictment also named co-defendant Elmore Murphy in Counts I, II,

III, and IV. Murphy entered into a plea bargain with the government and was sentenced to 51


                                                 2
months in prison. He subsequently testified against Simpson.

         At Simpson’s trial in July 1998, Murphy testified that he entered into an agreement with

Simpson in late 1995 when Simpson first propositioned Murphy to sell cocaine for him and then

showed Murphy how to cut up the crack cocaine for re-sale. Murphy said that beginning in late

1995 he obtained one gram of crack from Simpson every week for two to three months (for

approximately 12 grams). Later he received two to three grams of crack from Simpson for

approximately a two month period (for approximately 16 grams), and then at some point began

receiving “quarter ounces” (5-6 grams) of cocaine from Simpson.1 Notably, Murphy did not

remember the duration or frequency with which he received the quarter ounces, however the

Presentence Investigation Report (“PSI”) calculated the quarter ounce distributions to total 144

grams.

         Confidential informant Willie Aaron also testified at trial to two controlled buys from

Simpson. First, Aaron said that on June 12, 1996, Simpson weighed about 40 grams of crack on

a scale from which he purchased approximately 25 grams, and, again, on May 23, 1996, Simpson

and Murphy sold him 16 grams of crack. Finally, Emmitt Knight testified that in 1992, some

four years before the conspiracy at issue, Simpson sold him approximately one-half ounce of

crack every three days for six months, amounting to a total of approximately 600 grams.

         On July 9, 1998, the jury convicted Simpson on Counts I, III, IV, V, and VI of the

superseding indictment. Prior to Simpson’s trial, the Government had filed a Notice of

Information under 21 U.S.C. § 851 stating that Simpson had been convicted in 1996 of a prior



         1
        We note that in the community where these drug transactions took place purchases of
an “ounce” referred to something less than 28 grams.

                                                  3
felony drug offense. See R1-130. At no time has Simpson challenged the validity of this § 851

Notice of Information. At the sentencing hearing, the district court adopted the calculation in the

Presentence Investigation Report and specifically attributed 857.7 grams of crack cocaine to

Simpson based upon the aggregation of 45.7 grams2 from two the controlled buys by Aaron, 172

grams from the distributions to Murphy, 40 grams from distributions to Edward Hardy,3 and 600

grams from the sales to Knight. The PSI concluded that Simpson’s guideline range on the drug

counts was 292 to 365 months, a consecutive 60 months on the first firearm offense, and still

another consecutive 240 months on the second firearm offense. Simpson’s minimum sentence

was calculated at 592 months. The district court agreed with the calculations of the PSI but

concluded that a 592 month sentence was “disproportionate to the gravity of defendant’s

offenses” and reduced the sentence by 240 months, thereby sentencing Simpson to a total of 352

months in prison.

       On appeal, Simpson argues that the district court erred in denying his motion for

judgment of acquittal, erred in its jury charge on the two § 924(c)(1) firearm counts, and erred at

sentencing in calculating the amount of crack cocaine attributable to him. In its cross-appeal, the

Government also challenges the sentence arguing that the district court abused its discretion in

departing downward from the applicable mandatory minimum sentence for the drug and firearms

offenses.


       2
          We note that this was an apparent error in the PSI Report since the amount attributable
to Simpson from the controlled buys was approximately 56 grams. For the purposes of our
ruling on appeal, however, this error was harmless.
       3
         Edward Hardy was named as a co-defendant along with Simpson and Murphy in the
superseding indictment. After his arrest, Hardy told federal agents that he had sold two ounces
or approximately 40 grams of crack cocaine for Simpson.

                                                 4
                                                 II.

         We review a challenge to the sufficiency of the evidence de novo. See United States v.

Futrell, 209 F.3d 1286, 1288 (11th Cir. 2000); United States v. Mattos, 74 F.3d 1197, 1199 (11th

Cir. 1996). In reviewing a district court’s denial of a motion for judgment of acquittal on the

grounds of insufficient evidence, we must decide whether the evidence, examined in the light

most favorable to the government, was sufficient to support the jury’s conclusion that the

defendant was guilty beyond a reasonable doubt. See United States v. Toler, 144 F.3d 1423,

1428 (11th Cir. 1998).

         We review jury instructions de novo to determine whether they misstate the law or

mislead the jury to the prejudice of the objecting party. See Palmer v. Bd. of Regents of the

Univ. Sys. of Ga., 208 F.3d 969, 973 (11th Cir. 2000); United States v. Chandler, 996 F.2d 1073,

1085 (11th Cir. 1993).

         We review a district court’s determination of the quantity of drugs used to establish a

base offense level for sentencing purposes under the clearly erroneous standard. See United

States v. Jackson, 115 F.3d 843, 845 (11th Cir. 1997); United States v. Mertilus, 111 F.3d 870,

873 (11th Cir. 1997). However, we consider sentence objections raised for the first time on

appeal under the plain error doctrine to avoid manifest injustice. See United States v. Chisholm,

73 F.3d 304, 307 (11th Cir. 1996); United States v. Newsome, 998 F.2d 1571, 1579 (11th Cir.

1993).

         Finally, we review a district court’s decision to depart downward from the applicable

sentencing guidelines range for abuse of discretion. See Koon v. United States, 518 U.S. 81, 98-

100, 116 S.Ct. 2035, 2046-48, 135 L.Ed.2d 392 (1996); United States v. Pickering, 178 F.3d


                                                  5
1168, 1171 (11th Cir.), cert. denied, --- U.S. ---, 120 S.Ct. 433, 145 L.Ed.2d 339 (1999).

                                                A.

       First, Simpson argues that the district court erred in denying his motion for a judgment of

acquittal because the evidence was insufficient to support a guilty verdict on the conspiracy

charge. Simpson claims that the evidence presented at trial, even when viewed in the light most

favorable to the Government, was insufficient to establish the requisite elements of either a drug

conspiracy or Simpson’s complicity in it. We are not persuaded.

       In order to prove a conspiracy to distribute cocaine, the Government must establish

beyond a reasonable doubt: 1) the existence of an agreement among two or more persons; 2) that

the defendant knew of the general purpose of the agreement; and 3) that the defendant knowingly

and voluntarily participated in the agreement. See United States v. Adkinson, 158 F.3d 1147,

1153 (11th Cir. 1998); United Toler, 144 F.3d at 1425-26 (citing United States v. High, 117 F.3d

464, 468 (11th Cir. 1997)); United States v. Calderon, 127 F.3d 1314, 1326 (11th Cir. 1997).

       Simpson claims that confidential informant Willie Aaron testified only that Simpson was

present during a drug transaction he conducted with Murphy on May 23, 1996 and that he

bought drugs from Simpson, individually, on June 12, 1996. Simpson argues that Aaron’s

testimony is insufficient to establish an illegal agreement between Simpson and Murphy to sell

drugs. Moreover, Simpson says that co-defendant Murphy’s testimony regarding a conspiracy

between them to sell drugs was not corroborated by the Government’s videotapes of the May 23,

1996 and June 12, 1996 transactions, and he points out that Murphy specifically testified that he

sold drugs independently of Simpson. Finally, Simpson observes that both Aaron and Murphy

received considerable downward departures in their sentences in return for their testimony


                                                 6
against him.

       The Government responds that the evidence it presented at trial was sufficient to

establish beyond a reasonable doubt that Simpson and Murphy were engaged in a conspiracy to

distribute cocaine between May 15, 1996 and November 15, 1996. We agree. Murphy’s trial

testimony clearly established an illegal agreement between the two that began when Simpson

propositioned Murphy in late 1995 to sell cocaine for him and then showed Murphy how to cut

up the crack cocaine for re-sale. See R3-155-56, 158-59. As Murphy testified, the agreement

was straightforward: Simpson would “front” Murphy the crack cocaine on credit; Murphy

would then sell the cocaine; and the two of them would share the profits. See R3-156-58. The

Government also points to Aaron’s testimony that when he purchased cocaine from Murphy on

May 23, 1996, it was Simpson who supervised and gave the “go-ahead” for the deal. See R3-47-

49. Aaron’s testimony regarding the May 23, 1996 sale was consistent with Murphy’s account

that he and Simpson made the May 23, 1996 sale to Aaron together. See R3-179.

       The jury plainly credited the Government’s testimony, and it is not for us on appeal to re-

weigh the factfinder’s credibility choices. See United States v. Ramsdale, 61 F.3d 825, 829 n.10

(11th Cir. 1995) (noting that “[c]redibilty determinations are for the factfinder and should not

ordinarily be tampered with on appeal”). We reiterate that an appellate court must view the

evidence in the light most favorable to the government, drawing all reasonable inferences and

credibility determinations in favor of the verdict. See Toler, 144 F.3d at 1428. When measured

against this clear standard, we affirm the district court’s denial of Simpson’s motion for

judgment of acquittal on the charge of conspiracy.

                                                B.


                                                 7
       Second, Simpson argues that the trial court erred by “constructively” amending his

indictment in its instructions to the jury. Simpson claims the court constructively amended the

indictment by instructing the jury, over the objection of defense counsel, that they could convict

Simpson on Counts IV and VI (the firearms counts), if they found that he “used or carried”

(emphasis added) a firearm in relation to a drug trafficking offense, while the indictment actually

charged that Simpson “did knowingly use and carry a firearm” (emphasis added) in relation to a

drug trafficking crime. This claim is without merit.

       We have explained that “[a] constructive amendment to the indictment occurs where the

jury instructions so modify the elements of the offense charged that the defendant may have been

convicted on a ground not alleged by the indictment.” United States v. Poarch, 878 F.2d 1355,

1358 (11th Cir. 1989). A constructive amendment to the indictment is reversible error per se.

Id. (citing United States v. Peel, 837 F.2d 975, 979 (11th Cir. 1988)).

       Simpson argues that by changing “and” to “or” in its charge to the jury, the district court

modified the elements of the offense charged, lessened the State’s burden of proof, and denied

him his due process rights. Both our clear precedent and logic itself reject Simpson’s argument.

       In Poarch we considered a case similar to the present one in which the indictment

charged that the defendant had falsified material facts, concealed material facts, and covered up

material facts. Under the relevant statute, 18 U.S.C. § 1001, and according to the instructions

given to the jury, the government was only required to show that one of these acts was

committed in order to prove guilt. See Poarch, 878 F.2d at 1358. We explained that because the

indictment alleged that all three acts were committed, each of which violates the statute, the

government charged more than was required by the statute. Id. Given the more strenuous terms


                                                 8
of the indictment, it was impossible that the appellant could have been convicted at trial of a

ground not alleged in the indictment. Id. As we explained:

       Poarch was indicted for falsifying material facts, concealing material facts and
       covering up material facts. Since the jury was charged that it could find Poarch
       guilty if he falsified, concealed, or covered up a material fact, all of which were
       alleged in the indictment, there could have been no constructive amendment to the
       indictment, and we therefore must reject Poarch’s argument.

Id. at 1358; see also United States v. Cornillie, 92 F.3d 1108, 1110 (11th Cir. 1996) (holding that

the district court properly instructed the jury that the defendant could be found guilty if he had

used force and violence or intimidation, tracking the language of the statute under which he was

charged, 18 U.S.C. § 2113(a), even though he had been accused in the indictment of having used

force, violence and intimidation); United States v. Earls, 42 F.3d 1321, 1327 (10th Cir. 1994)

(explaining that “‘it is generally accepted procedure to use ‘and’ in an indictment where a statute

uses the word ‘or’ . . . [because] [t]his assures that defendants are not convicted on information

not considered by the grand jury.’ Moreover, it is ‘entirely proper’ for the district court to

instruct the jury in the disjunctive, though the indictment is worded in the conjunctive”) (quoting

United States v. Daily, 921 F.2d 994, 1001 (10th Cir. 1990)).

       The logic of Poarch controls this case. Simpson’s indictment charged in Counts IV and

VI that he “did knowingly use and carry a firearm” in relation to a drug trafficking crime.

However, the statute requires only a showing that the defendant “uses or carries a firearm” in

relation to a drug trafficking crime. See 18 U.S.C. § 924(c)(1)(A). Because Simpson was

indicted under the more strenuous use and carry standard, he could not possibly have been

convicted on a ground that was not alleged in the indictment. Quite simply, the law is well

established that where an indictment charges in the conjunctive several means of violating a


                                                  9
statute, a conviction may be obtained on proof of only one of the means, and accordingly the jury

instruction may properly be framed in the disjunctive.

                                                   C.

        Third, Simpson argues that the district court erred in attributing 857.7 grams of crack

cocaine to him for purposes of determining his base offense level. Specifically, Simpson urges

that the district court mistakenly held him responsible for the amounts of cocaine that Knight

testified he purchased from Simpson in 1992 (600 grams), for the quarter ounces that Murphy

testified he purchased from Simpson without specifying the frequency or duration of the

purchases (144 grams), and for the more specific amounts Murphy testified that he purchased

from Simpson before May 15, 1996 (28 grams). Simpson concedes that he did not raise any of

these objections before the district court. Therefore, we review the district court’s ruling for

plain error. To prevail on a showing of plain error, a defendant must prove three things: 1) an

error, 2) that is plain, and 3) that affects substantial rights. See Jones v. United States, 527 U.S.

373, 389, 119 S.Ct. 2090, 2102, 144 L.Ed.2d 370 (1999); United States v. Tyndale, 209 F.3d

1292, 1295 (11th Cir. 2000). Moreover, an appellate court should exercise its discretion to

correct a plain error only if it “‘seriously affect[s] the fairness, integrity or public reputation of

judicial proceedings.’” Jones, 527 U.S. at 389, 119 S.Ct. at 2102 (quoting United States v.

Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 1776, 123 L.Ed.2d 508 (1993)) (internal quotation

marks omitted); see also United States v. Badek, 146 F.3d 1326, 1328 (11th Cir. 1998).

        To begin, Simpson argues, and the Government concedes on appeal, that the district court

erred in attributing 600 grams of cocaine to him based on the testimony of Emmitt Knight.

Knight testified that he purchased some 600 grams of cocaine from Simpson over a 6 month


                                                   10
period in 1992, long before the alleged start of the conspiracy in May 1996. Not only did this

conduct occur several years prior to the charged conspiracy, it also did not involve the same

alleged co-conspirators. Both parties now agree, as they must, that this activity clearly falls far

outside the scope of the 1996 conspiracy for which Simpson was convicted, and therefore 600

grams of crack cocaine was improperly attributed to Simpson for sentencing purposes. See

United States v. Gomez, 164 F.3d 1354, 1356 (11th Cir. 1999) (explaining that a “defendant may

be held accountable at sentencing for illegal conduct not in furtherance of the offence of

conviction if that conduct was ‘part of the same course of conduct or common scheme or plan’ as

the offense of conviction”) (quoting U.S.S.G. § 1B1.3(a)(2)); United States v. Maxwell, 34 F.3d

1006, 1011 (11th Cir. 1994) (evaluating the “similarity, regularity, and temporal proximity”

between the offense of conviction and the uncharged conduct to determine whether the

uncharged conduct is relevant conduct for the purposes of calculating a defendant’s base offense

level) (internal quotation marks omitted).

       Simpson also objects to the sentencing court’s attribution of some 144 grams of cocaine

to him based on Murphy’s “vague” testimony that he received quarter ounce distributions from

Murphy without specifying either the duration or frequency of these distributions. Murphy did

say that at some point he began receiving quarter ounces of cocaine from Simpson for him to

sell, but he could not remember the time period during which these quarter ounce distributions

were made or, notably, their frequency. In light of this vague and uncertain testimony, we agree

with Simpson and conclude that the district court erred in assuming that Simpson distributed

quarter ounces to Murphy every week for six months. As a result, on this limited record, the

district court abused its discretion in attributing an additional 144 grams of cocaine to Simpson


                                                 11
based on this testimony. At best, because of its ambiguity, this part of Murphy’s testimony

arguably supports the attribution of only a single quarter ounce, or approximately 5-6 grams, of

cocaine base to Simpson.

       Finally, Simpson argues that the sentencing court erred in attributing to him 28 grams of

cocaine base based on distributions he allegedly made to Murphy prior to May 15, 1996.4

Specifically, Simpson argues that Murphy’s testimony concerning drug distributions by Simpson

in late 1995, and prior to May 15, 1996, fall outside the scope of the conspiracy at issue. The

Government responds that the late 1995 distributions between Simpson and Murphy should be

attributed to Simpson for sentencing purposes because they involve relevant conduct sufficiently

related to the conspiracy for which Simpson was convicted. See Gomez, 164 F.3d at 1357

(explaining that in determining the base offense level for a drug conspiracy conviction,

“uncharged criminal activity outside of a charged conspiracy may be included in sentencing if

the uncharged activity is sufficiently related to the conspiracy for which the defendant was

convicted”).

       In this case, the uncharged conduct about which Murphy testified involved both the same

parties as the charged conspiracy and was temporally connected to it. As such, we cannot

conclude that the district court plainly erred in attributing 28 grams of cocaine base to Simpson

based on Murphy’s testimony regarding distributions beginning in late 1995. Indeed, as to the

attribution of this amount we cannot say the district court erred, let alone plainly erred, or that it



       4
           The 28 grams combines the weekly distributions of one gram that Murphy testified he
received from Simpson for two to three months (for a total of 12 grams) plus the weekly
distributions of two to three grams he testified he received from Simpson for a two month period
(for a total of 16 grams).

                                                  12
resulted in a miscarriage of justice.

       In sum, based on the record we conclude that the district court plainly erred in attributing

600 grams of crack to Simpson based on Knight’s testimony, and in attributing 144 grams to

Simpson based on Murphy’s ambiguous testimony regarding his receipt of quarter ounces from

Simpson, but did not plainly err in attributing 28 grams crack cocaine to Simpson based on

Murphy’s more detailed testimony regarding the weekly distributions made to him by Simpson

beginning in late 1995. Accordingly, we conclude the district court properly should have

attributed 28 grams of crack cocaine to Simpson based on his weekly distributions to Murphy in

late 1995 plus 6 grams of crack cocaine to Simpson based on at least one quarter ounce

distribution by Simpson to Murphy for a total of 34 grams of cocaine based on Murphy’s

testimony alone.

                                                D.

       Finally, in the cross-appeal, the Government argues that the district court abused its

discretion in giving Simpson a 240 month downward departure on his 592 month sentence on the

grounds that the sentence overrepresented the gravity of the offenses and Simpson’s criminal

history category overstated the seriousness of his past conduct. The district court explained the

grounds for its downward departure in these terms:

               Under the Sentencing Reform Act of 1984, as strictly applied, it would
       appear that the defendant would be committed to the custody of the United States
       Bureau of Prisons to be imprisoned for a total term of 592 months minimum or
       665 months maximum. The minimum term consists of 292 months on each of
       Counts I, III and V, to be served concurrently, a term of 60 months as to Count
       IV, to be served consecutively to the terms on Counts I, III, and V, and a term of
       240 months as to Count VI, to be served consecutively to the terms imposed on
       Counts I, III and V, as well as consecutively to the term imposed on Count IV.
               In the opinion of the Court, a sentence of 592 months greatly over states
       the offenses of defendant Simpson, and a sentence of this magnitude is

                                                13
       disproportionate to the gravity of defendant’s offenses. A sentence of 292 months
       or 29 plus years under the guidelines would be based on reasonable estimates of
       quantities of drugs sold by defendant plus a criminal history which was largely
       based on two arrests for gambling and incidental discovery of marijuana as to
       one.
               The Court is of the opinion and so orders that the defendant be committed
       to the custody of the United States Bureau of Prisons to be imprisoned for a total
       term of 352 months.

R1-178.

       The Government plainly objected at the sentencing hearing to the district court’s

downward departure arguing that the court could not depart downward from the mandatory

sentencing regime codified by Congress in 21 U.S.C. §§ 841, 851, and 18 U.S.C. § 924(c)(1).

We agree.

       We emphasize that this case is governed by the mandatory minimum sentences

established by Congress. This is not a case where the district court had any discretion to depart

downward from the relevant sentencing guideline range. See Koon, 518 U.S. at 95-96, 116 S.Ct.

at 2045. In this case, the relevant statutorily authorized mandatory minimum sentences exceeded

the relevant Sentencing Guidelines range, and, therefore, took precedence over them. Moreover,

the district court had no discretion to depart downward from the relevant statutory mandatory

minimum sentences.

       As we have observed, the district court erred in attributing 857.7 grams of cocaine to

Simpson. However, even excluding the amounts erroneously attributed to Simpson (namely 600

grams sold to Knight and 144 grams distributed to Murphy in quarter ounces), Simpson is still

responsible for significantly more than 50 grams of cocaine base.5


       5
         As stated earlier, the PSI erroneously attributed 45.7 grams of cocaine to Simpson
based on the controlled buys to Aaron rather than the correct 56 grams. In addition, although the

                                                14
       Section 841(b) provides:

       [A]ny person who violates subsection (a) of this section shall be sentenced as
       follows: (1)(A) In the case of a violation of subsection (a) of this section
       involving – . . . (iii) 50 grams or more of a mixture or substance described in
       clause (ii) which contains cocaine base; . . . such person shall be sentenced to a
       term of imprisonment which may not be less than 10 years . . . . If any person
       commits such a violation after a prior conviction for a felony drug offense has
       become final, such person shall be sentenced to a term of imprisonment which
       may not be less than 20 years and not more than life imprisonment . . . . (emphasis
       added)

Prior to trial, the Government filed a Notice of Information under 21 U.S.C. § 851 stating that

Simpson had a prior conviction for a felony drug offense. Simpson did not challenge, contradict,

or respond in any way to the § 851 enhancement doubling the mandatory sentence for his drug

charges. Therefore, under 21 U.S.C. § 841, the district court was required to sentence Simpson

to a statutory minimum term of 20 years or 240 months on his drug convictions.6

       Under the Sentencing Guidelines, Simpson’s base offense level for the distribution of

more than 50 grams but less than 150 grams of cocaine base is 32. See U.S.S.G. § 2D1.1.

Simpson received a two level enhancement pursuant to U.S.S.G. § 3B1.1(c) for being an

organizer, leader, manager, or supervisor of the criminal activity. Given his base offense level of

34, and a criminal history category of III, Simpson falls within a Sentencing Guidelines range of

188-235 months for his drug convictions. But the Sentencing Guidelines make clear that where



district court erred in attributing 144 grams of cocaine base to Simpson based on Murphy’s
vague testimony about quarter ounce distributions to him, at least 6 grams of cocaine can
properly be attributed to Simpson based on this testimony. Therefore, based on the district
court’s findings, Simpson should be held accountable for 56 grams based on the two controlled
buys by Aaron, plus 34 grams based on the distributions to Murphy, plus 40 grams based on the
distribution to Hardy for a total of approximately 130 grams.
       6
         Counts I, III, and V are grouped offenses whose sentences can run concurrently. See
U.S.S.G. § 3D1.2(d)

                                                15
a guideline range falls entirely below a mandatory minimum sentence, the court must follow the

statutory minimum. See U.S.S.G. § 5G1.17; see also United States v. Ortega-Torres, 174 F.3d

1199, 1201 n.2 (11th Cir.) (emphasizing that the statute controls in the event of a conflict

between the guideline and the statute), cert. denied, --- U.S. ---, 120 S.Ct. 259, 145 L.Ed.2d 217

(1999); United States v. Eggersdorf, 126 F.3d 1318, 1320 (11th Cir. 1997) (same), cert. denied,

523 U.S. 1013, 118 S.Ct. 1204, 140 L.Ed.2d 332 (1998). Therefore, because the Sentencing

Guidelines range falls entirely below the statutorily imposed mandatory minimum sentence for

Simpson’s drug offenses, the district court was obliged to impose the mandatory minimum 240

months for these drug convictions.

       As for Simpson’s two firearm convictions, 18 U.S.C. § 924(c)(1) provided for a sentence

of five years on a first conviction, and a sentence of 20 years for a “second or subsequent

conviction under this subsection.”8 Moreover, § 924(c)(1) expressly provided that the term of


       7
         U.S.S.G. § 5G1.1 states:
       Sentencing on a Single Count of Conviction
                                      ...
       (b)    Where 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.
       (c)    In any other case, the sentence may be imposed at any point within the
              applicable guideline range, provided that the sentence --
              (1)    is not greater than the statutorily authorized maximum
                     sentence, and
              (2)    is not less than any statutorily required minimum sentence.
       8
          On November 13, 1998, 18 U.S.C. § 924(c) was amended and the penalty for a second
or subsequent conviction was increased to 25 years. At the time of Simpson’s offense and
sentencing, however, the relevant portion of § 924(c)(1) read: “Whoever, during and in relation
to any crime of violence or drug trafficking crime . . . uses or carries a firearm, shall in addition
to the punishment provided for such crime of violence or drug trafficking crime, be sentenced to
imprisonment for five years . . . . In the case of his second or subsequent conviction under this
subsection such person shall be sentenced to imprisonment for twenty years . . . .”

                                                 16
imprisonment imposed under this subsection shall not “run concurrently with any other term of

imprisonment including that imposed for the crime of violence or drug trafficking crime in

which the firearm was used or carried.” See also U.S.S.G. 2K2.4 (stating that “if the defendant .

. . was convicted under . . . 924(c) . . . the term of imprisonment is that required by statute);

United States v. Cespedes, 151 F.3d 1329, 1333 (11th Cir. 1998) (holding that the sentence

under section 924(c) must be served consecutively with the sentences for defendant’s other

offenses); Bazemore v. United States, 138 F.3d 947, 948 (11th Cir. 1998) (same); United States

v. Siegel, 102 F.3d 477, 481-82 (11th Cir. 1996)(same). Therefore, on the two firearm

convictions, Simpson must serve a mandatory term of imprisonment of 300 months to run

consecutive to the sentence imposed for his other offenses.

       There are only two circumstances in which a court can depart downward from a

statutorily authorized mandatory minimum sentence. Either the Government must file a motion

to recognize the defendant’s “substantial assistance” in the investigation or prosecution of

another person, see 18 U.S.C. § 3553(e), or, the defendant must fall within the provisions of the

“safety valve” embodied in 18 U.S.C. § 3553(f). Neither circumstance is applicable here.

       According to 18 U.S.C. § 3553(e) and U.S.S.G. § 5K1.1, a court may depart downward

from a statutory mandatory minimum if the government files a motion stating that the defendant

has provided substantial assistance. The Government did not file a substantial assistance motion

in this case, and therefore the district court could not depart downward from the statutory

minimum sentences on this ground.

       Under the safety-valve provision of 18 U.S.C. § 3553(f), a sentencing court can depart

downward from a statutory minimum sentence for an offense arising under 21 U.S.C. §§ 841,


                                                  17
844, 846, 960 or 963 if the defendant meets each of five criteria: 1) the defendant does not have

more than 1 criminal history point; 2) the defendant did not use violence or credible threats of

violence or possess a firearm or other dangerous weapon in connection with the offense; 3) the

offense did not result in death or serious bodily injury to any person; 4) the defendant was not an

organizer, leader, manager, or supervisor of others in the offense, and was not engaged in a

continuing criminal enterprise; and 5) not later than the time of the sentencing hearing, the

defendant has truthfully provided the Government all information and evidence the defendant

has concerning the offense or offenses that were part of the same course of conduct. See 18

U.S.C. § 3553(f); U.S.S.G. § 5C1.2. But Simpson could not qualify for a downward departure

under the safety-valve provision because he had four criminal history points, possessed a firearm

during two of his drug offenses, and was found to be an organizer, leader, manager, or supervisor

of the criminal activity.

       On this record, the district court was bound to impose the statutorily authorized

mandatory minimum sentences for Simpson’s crimes, namely 240 months for the drug

convictions plus 300 months for the two firearms convictions for a total mandatory minimum

sentence of 540 months. The district court had no discretion in this case to depart downward

from these congressionally created explicit mandatory minimum sentences.

       We conclude, therefore, that the district court erred in attributing 857.7 grams of cocaine

to Simpson, and abused its discretion in sentencing Simpson to 352 months in prison.

Accordingly, although we affirm the conviction, we are required to vacate the district court’s

sentencing order and remand for re-sentencing consistent with this opinion.

       VACATED AND REMANDED.


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