United States v. Appellee, 041018 FED5, 17-50451

Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
Judge Panel:Before ELROD, COSTA, and HO, Circuit Judges.
Opinion Judge:PER CURIAM:
Party Name:UNITED STATES OF AMERICA, Plaintiff - Appellant, v. SEALED APPELLEE, Defendant-Appellee.
Case Date:April 10, 2018
Docket Nº:17-50451
 
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UNITED STATES OF AMERICA, Plaintiff - Appellant,

v.

SEALED APPELLEE, Defendant-Appellee.

No. 17-50451

United States Court of Appeals, Fifth Circuit

April 10, 2018

          Appeal from the United States District Court for the Western District of Texas

          Before ELROD, COSTA, and HO, Circuit Judges.

          PER CURIAM:

         The government appeals Appellee's sentence of 80 months of imprisonment based on a 120-month statutory minimum that applies to Appellee's conviction and the absence of a motion by the government pursuant to 18 U.S.C. § 3553(e) to depart from that minimum. Because we agree that the district court erred by departing from the statutory minimum without a request by the government to do so, we VACATE and REMAND.

         I.

         Pursuant to a plea agreement with the government, Appellee pleaded guilty to conspiring to possess with intent to distribute 1, 000 kilograms or more of a mixture or substance containing a detectable amount of marijuana. See 21 U.S.C. § 841. The agreement explained that Appellee would be facing a mandatory minimum term of ten years and up to life imprisonment.

         The presentence report (PSR) attributed 81, 000 kilograms of marijuana to Appellee as relevant conduct and, following several adjustments, scored him at an offense level of 38, criminal history category of I, and sentencing range of 235 to 293 months of imprisonment. The government filed a motion for a downward departure pursuant to section 5K1.1 of the United States Sentencing Guidelines. Because of Appellee's "substantial assistance in the investigation and/or prosecution of the case, " the government requested that the district court reduce Appellee's sentencing range to 135 to 168 months of imprisonment, a five-level departure. The district court granted the government's motion.

         At the sentencing hearing, the district court heard argument from both parties. Appellee's counsel urged the court to sentence Appellee below the statutory minimum, saying that a ten-year sentence or more was "not warranted" and that the government should reconsider its position not to recommend a sentence below the minimum. The government's position remained the same. Ultimately, over...

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