The opinion of the court was delivered by: Richard Mills, U.S. District Judge
The Court held Defendant Trevor Bettis' sentencing hearing on November 23, 2010. Following the imposition of the sentence, there was some discussion regarding the Court's denial of the Defendant's motion pursuant to U.S. Sentencing Guidelines Manual § 5K2.0. The Court takes this opportunity to clarify the basis for that ruling.
The Defendant's argument regarding U.S. Sentencing Guidelines Manual § 5K2.0 raised at the sentencing hearing was also discussed in his Commentary as to Presentence Factors [d/e 17]. The Defendant argued that a downward departure may be warranted under U.S. Sentencing Guidelines Manual § 5K2.0(2)(A).
The Defendant acknowledged that his plea of guilty to Count 2 of the Indictment*fn1 gives rise to a mandatory five year term of imprisonment. However, the Defendant argued that the guidelines fail to consider that the weapons were not utilized or fired during the drug crimes. The Defendant stated that a downward departure was warranted under U.S. Sentencing Guidelines Manual § 5K2.0(2)(A) and 18 U.S.C. § 3553(b).
The Government challenged this assertion prior to the sentencing hearing. See Government's Response to Defendant's Commentary as to Presentence Factors [d/e 18], 2-3. The Government stated that the five year consecutive sentence is required by statute, and that under U.S. Sentencing Guidelines Manual § 2K2.4, the guideline range for the offense is five years. See Government's Response [d/e 18], 2-3. Finally, the Government stated that there is no authority to depart below the statutory mandatory minimum sentence, except as provided at 18 U.S.C. § 3553(e). See Government's Response [d/e 18], 3.
The Court agrees with Government's position -- in aces, spades and trumps. The Defendant's argument is without merit, and thus it was rejected out of hand.
The U.S. Court of Appeals for the Seventh Circuit has long held that U.S. Sentencing Guidelines Manual § 5K2.0 cannot be used to depart below a mandatory minimum sentence. See United States v. Brigham , 977 F.2d 317, 320 (7th Cir. 1992).
In Brigham , the Seventh Circuit held the following: All that remains is Brigham's argument that the judge should have invoked U.S.S.G. § 5K2.0 to give him a break. Section 5K2.0 describes appropriate departures from the guidelines, but Brigham needed a departure from a minimum sentence prescribed by statute. That was available only on motion of the prosecutor under § 3553(e).
977 F.2d at 320 (emphasis in original).
Other circuit courts have come to the same conclusion. See United States v. Phillips , 382 F.3d 489, 498 (5th Cir. 2004) ("as we have previously indicated, USSG § 5K2.0, 'in and of itself,' does not permit the district court to depart below an applicable mandatory statutory minimum sentence"); United States v. Duncan , 242 F.3d 940, 949 (10th Cir. 2001) ("The plain language of § 5K2.0 reveals it applies only to Guidelines sentences and cannot be utilized to depart from statutory mandatory minimum sentences.").
In this case, the Government's motion under 18 U.S.C. § 3553(e) applied to Count 1 (possession of controlled substances, with intent to distribute), and not Count 2. Therefore, pursuant to Brigham , the ...