Booker Doesn't Give District Courts Discretion to Sentence Below Mandatory Minimum (Absent Substantial Assistance Motion or Safety Valve)

United States v. Krumnow, No. 06-50241 (5th Cir. Jan. 18, 2007) (Barksdale, Prado; DeMoss, concurring)

Krumnow pled guilty to possession of methamphetamine within 1,000 feet of a public school with intent to distribute (21 U.S.C. §§ 841(a)(1), (b)(1)(C), 860(a)), and possession of a firearm during the commission of a drug trafficking offense (18 U.S.C. § 924(c)(1)(A)(i)). The drug count required a one-year mandatory minimum sentence, and the 924(c) count required a mandatory minimum sentence of 60 months to be served consecutively to the sentence on the drug count. The guidelines on the drug count worked out to 63 to 78 months. The district court imposed a 60-month sentence on the drug count, and a concurrent 60-month sentence on the gun count. It characterized the sentence on the gun count as a departure from the mandatory minimum sentence. The government, unsurprisingly, appealed.

In an opinion that makes liberal use of italics, the court holds that a district court lacks discretion to impose a sentence below a mandatory minimum, except in the circumstances specified in 18 U.S.C. § 3553(e), (f) (5K1.1 motion and safety valve). Booker did not change that rule. Accordingly, the court vacates the sentence and remands for resentencing.

Judge DeMoss concurs fully, but writes separately to point out that the district court may be able to

achieve a similar result by issuing a non-Guideline sentence for the drug-possession charge either at or above the statutory minimum of one year (but below the low-end of the Guideline range), and then run the mandatory five-year sentence for the gun possession conviction consecutively. Of course at re-sentencing a full and proper explanation must be given for any non-Guideline sentence to justify its reasonableness. The combined sentence that Krumnow could then receive under the applicable statutes could be as little as six years, which would be closer to what I believe the district judge felt was an appropriate sentence for this defendant.

Slip op. at 10. (Note that when Judge DeMoss refers to a "non-Guideline" sentence, that should probably be read as "a downward departure or a non-Guideline sentence" since the two are subject to different procedural hoops under current Fifth Circuit reasonableness case law.)