United States v. Sharp

¶5PER CURIAM:

¶6The government’s appeal from the sentence imposed on Douglas Sharp requires us to determine whether a district court may justify a sentence below the minimum established by the Anti-Drug Abuse Act of 1986 by relying upon mitigating circumstances sufficient to justify a sentence below the minimum established by the United States Sentencing Guidelines. We hold that it may not, and therefore vacate Sharp’s sentence and remand for resentenc-ing.

¶7I.

¶8Sharp was convicted by a jury of one count of conspiracy and one count of possession with intent to distribute 4,985 grams of cocaine, in violation of 21 U.S.C. § 846 and § 841(a), respectively. When Sharp was sentenced in May 1988, both the sentencing guidelines and the mandatory minimum sentencing provisions of section 841, as amended by the Anti-Drug Abuse Act of 1986, Pub.L. 99-570, 100 Stat. 3207, 3207-3 to 3207-4 (1986), were in effect.

¶9Given the nature of Sharp’s offense and his criminal history, the guidelines prescribed a sentencing range of 97 to 121 months. Section 841(b)(1)(B), which sets the sentences for convictions under both section 8411 and section 846,2 mandated a minimum sentence of 60 months and a maximum of 480 months on each count.

¶10*831The district court declined to sentence Sharp under the guidelines, which it had previously held unconstitutional as viola-tive of due process and separation of powers. See United States v. Ortega Lopez, 684 F.Supp. 1506, 1515 (C.D.Cal.1988). The court also declined to sentence Sharp under section 841(b), holding the mandatory provisions of that statute no less violative of due process than the guidelines.

¶11The court sentenced Sharp to 60 months on each count, but suspended sentence upon condition Sharp serve six months incarceration followed by five years probation and perform 500 hours of community service. Alternatively, if Sharp’s original sentence were vacated, Sharp was sentenced to serve the full 60 months imprisonment on each count, to run concurrently, and pay a $50 special assessment fee on each count.

¶12The government appeals and urges that the alternate sentence be enforced.

¶13II.

¶14We agree with the Third and the Eighth Circuits that when a statute requires a sentence different than that set by the guidelines, the statute controls. See United States v. Donley, 878 F.2d 735, 740-41 (3d Cir.1989); United States v. Savage, 863 F.2d 595, 600 (8th Cir.1988). Indeed, the Sentencing Commission, in commentary to the guidelines, expressly deferred to statutorily mandated sentences that conflict with the guidelines. See Sentencing Guidelines § 5G1.1 commentary.3

¶15Where, as here, the statutory sentencing floor is lower than that of the guidelines, the district court can exercise its discretion to reduce the sentence based on mitigating factors to a term less than the guidelines range minimum, see id.§§ 5K2.0-5K2.14, but not less than the statutory minimum. The district court may impose a sentence “below [the] level established by the statute as [a] minimum sentence,” in this case 60 months, only if, “[u]pon motion of the Government,” the court finds the defendant offered “substantial assistance in the investigation or prosecution of another person who has committed an offense.” 18 U.S.C. § 3553(e).

¶16The government did not move and the district court did not find that Sharp offered any such assistance. Rather, the court suspended all but six months of Sharp’s sentence and imposed probation because Sharp was a first offender and because the district court believed Sharp was coerced into the illegal activity. Whether or not these factors might allow the court to depart below the 97-month minimum term imposed by the guidelines, they cannot be used to allow Sharp to serve a term less than the 60-month minimum imposed by section 841(b)(1)(B). As the guidelines explain, “[i]f application of the guidelines results in a sentence below the minimum sentence required by the statute, the statutory minimum shall be the guideline sentence.” Sentencing Guidelines § 5Gl.l(b).

¶17In section 841(b), Congress set the minimum prison terms for drug offenders, see United States v. Hoyt, 879 F.2d 505, 511-12 (9th Cir.1989), and the statute expressly prohibits suspension of sentence or probation. 21 U.S.C. § 841(b)(1)(B). The sentence imposed violates these requirements. We therefore vacate Sharp’s sentence and remand for execution of the alternate sentence, except the provision imposing special assessment fees.4

¶18Sharp argues the mandatory provisions of section 841(b) violate due process, but we have held to the contrary. See United States v. Kidder, 869 F.2d 1328, 1334-35 (9th Cir.1989); United States v. Klein, 860 F.2d 1489, 1501 (9th Cir.1988).5

¶19VACATED and REMANDED.