OPINION
The defendant-appellant in this case is subject to a statutorily required minimum sentence that exceeds the otherwise applicable guideline sentence. The question presented, one of first impression in this circuit, is whether a downward departure pursuant to 18 U.S.C. § 3553(e) and U.S.S.G. § 5K1.1 should begin from the higher statutorily required minimum sentence, or from the lower оtherwise applicable guideline sentence. We hold that the appropriate departure point is the statutorily required minimum sentence.
I. Background
In September 2000, officers of the Honolulu Police Department, working in conjunction with agents from the FBI, began an undercover investigation into the drug distribution activities of defendant-appellant Vince A. Auld. Their efforts led to Auld’s arrest and indictment a little over a month later. The indict *863 ment charged Auld with three separate violations of 21 U.S.C. § 841. Count I charged Auld with knowingly and intentionally possessing with intent to distribute and distributing methamphetamine, a Schedule II controlled substance, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C); Count II charged Auld with knowingly and intentionally possessing with intent to distribute and distributing five grams or more of methamphetamine, a Schedule II controlled substance, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B); and Count III charged Auld with knowingly and intentionally possessing with intent to distribute fifty grams or more of methamphetamine, a Schedule II controlled substance, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A).
This was not Auld’s first encounter with the law. He had previously been convicted in Hawaii state court in 1986 for “Promoting a Dangerous Drug in the Second Degree.” Based on this prior conviction, the government filed a Special Information pursuant to 21 U.S.C. §§ 841(b)(1) and 851 shortly after the indictment, advising Auld and the district court that, because Auld had a prior felony drug conviction, enhanced statutory penalties would apply at his sentencing. The Special Information had the effect of doubling the mandatory minimum sentences in Counts II and III from five and ten years, respectively, to ten years and twenty years, respectively. Auld pled guilty to all counts in the indictment without the benefit of a plea agreement. He also continued his ongoing efforts to cooperate with authorities.
Auld’s сooperation paid off for the government. It led to the arrest and indictment of approximately a half-dozen people and the seizure of a substantial quantity of methamphetamine, over 30 firearms, and $50,000. The government rewarded Auld by filing a motion in the district court, pursuant to 18 U.S.C. § 3553(e) and U.S.S.G. § 5K1.1, requesting a downward departure from his sentence. The motion was made before Auld was sentenced, but after Auld’s presentence investigation report had been adopted by the district court without objection. That report placed Auld at an adjusted offense level of 29 and in criminal history category IV, with a resulting guideline sentence range of 121 to 151 months. The report indicated, however, that in accordance with the Special Information, Auld was subject to a statutorily required minimum term of imprisonment of 20 years (240 months). See 21 U.S.C. § 841(b)(1)(A).
In its departure motion, the government asked that the court depart five years from the twenty-year mandatory minimum, leading to a total sentence of fifteen years (180 months). Auld, however, contended that the guidelinе sentencing range established by his offense level and criminal history score (121 to 151 months) should be used as the starting point for the departure, rather than the statutorily required minimum term of twenty years. The district court adopted the government’s position over Auld’s objection and sentenced him to fifteen years imprisonment. Auld timely appealed.
We review a district court’s interpretation of a statute de novo.
See United States v. Hunter,
II. Discussion
A. Point of Departure
Auld argues that we should read 18 U.S.C. § 3553(e) as instructing the district court to disregard the statutorily required minimum sentence and to look instead to the otherwise applicable guideline sentence *864 when imрosing a reduced sentence for substantial assistance. 1 Auld contends that by imposing a sentence of 180 months- — -29 months longer than the maximum guideline sentence — the district court improperly ignored the guideline applicable to his actual offense conduct and criminal history category and, in effect, departed upward rather than downward. He relies on the last sentence of § 8553(e), which provides that the departure sentence “shall be imposed in accordance with the guidelines and policy statements issued by the Sentencing Commission pursuant to section 994 of title 28, United States Code.” 2 Auld contends that this language instructs the district court to begin its § 3553(e) departure from the otherwise applicablе guideline sentence rather than from the statutorily required minimum; or, he argues, it at least instructs the court to impose a sentence that falls within the guideline range.
Auld’s position is foreclosed by the reasoning, if not the direct holding, of
Melendez v. United States,
While § 3553(e) does not explicitly state where the departure should begin, its clear implication is that the court should depart from the sentence that would have been imposed had the departure motion not been made.
See United States v. Li,
Had Congress envisioned, as Auld contends, that a § 3553(e) motion would render the statutory minimum inoрerative as a departure point, to be replaced by the otherwise applicable guideline sentence, we would expect that the text of § 3553(e) would incorporate language like that found in 18 U.S.C. § 3553(f), the so-called “safety valve” provision. Section 3553(f) provides that if its criteria are met, “the court shall impose a sеntence pursuant to guidelines promulgated by the United States Sentencing Commission ...
without regard to any statutory minimum sentence.”
18 U.S.C. § 3553(f) (emphasis added). By contrast, subsection (e) grants courts “[l]imited authority to impose a sentence
below a statutory minimum.”
18 U.S.C. § 3553(e) (emphasis added). It nowhere states that this sentence shall be imposed “without regard to any statutory minimum sentence.”
See also United States v. Ahlers,
Auld relies on the term “waived” in Application Note 7 to U.S.S.G. § 2D1.1 in support of his reading of § 3553(e).
4
Note
*866
7 explains that where a mandatory minimum sentence applies, “this mandatory minimum sentence may be ‘waived’ and a lower sentence imposed (including a sentenсe below the applicable guideline range), as provided in 28 U.S.C. § 994(n), by reason of a defendant’s ‘substantial assistance in the investigation or prosecution of another person who has committed an offense.’ ” Auld contends that once a mandatory minimum sentence is “waived,” the mandatory minimum disappears entirely, leaving only the othеrwise applicable guideline range. In the context of the Note as a whole, however, “waived” means only that the mandatory nature of the statutory minimum is dispensed with, thus permitting the imposition of a sentence below that minimum. It does not mean that the statutory minimum is not to be used as the point from which a downward departure begins. In the very next sentence, the Note states that “[i]n addition, 18 U.S.C. § 3553(f) provides
an exception to the applicability of mandatory minimum sentences
in certain cases.” (Emphasis added.) The difference in phraseology clearly reflects the Commission’s understanding of the different functions of § 3553(e) and § 3553(f). While subsection (f) “provides an exception” to the apрlicability of a mandatory minimum, subsection (e) merely allows a departure that results in a “lower sentence” than the mandatory minimum.
See Ahlers,
Common sense also supports this reading of the statute.
See Local Joint Exec. Bd. of Culinary/Bartеnder Trust Fund v. Las Vegas Sands, Inc.,
In
Melendez,
the defendant was in the reverse position of the defendant in this case, for he was subject to a guideline sentence thаt exceeded his mandatory minimum sentence. The Court held that a motion under § 5K1.1 permitted departure from the guideline sentence, but that the departure could not extend below the mandatory minimum absent an additional motion by the government under § 3553(e). By analogy, one could argue that when a defendant is subject to a mandatory minimum sentence that exceeds the guideline sentence, a motion under § 3553(e) permits departure from the mandatory minimum, but not below the guideline sentence unless there is an additional motion by the
*867
government under § 5K1.1. We need not decide that question here, however. In this case, the government invoked both § 3553(e) and § 5K1.1. The district court therefore clearly had the authority to depart below the guideline sentence, and could have done so if it had deemed such a departure warranted. The initial point of the departure was, however, the mandatory minimum, just as the initial point of departure would have been the guideline sentence if Auld, like Melendez, had been subject to a guideline sentence that exceeded his mandatory minimum.
See Li,
There is no indication in the record of this ease that the district judge felt, as a matter of law, powerless to depart below the minimum guideline range. Indeed, the attorney for the government specifically stated at Auld’s sentencing hearing that “even though I am moving to depart just five years, as soon as the government movеs to depart, it’s certainly within the court’s discretion to go anywhere at that point.” Rather, it is apparent that the district judge simply agreed with the government’s recommendation of a five-year departure.
See
U.S.S.G. § 5K1.1(a)(1)(di-recting sentencing court to take “into consideration the government’s evaluation of the assistance rendered” by the dеfendant). The acceptance of the government’s recommendation fell within the district court’s discretion.
See United States v. Vizcarra-Angulo,
B. Extent of Departure
Auld also argues that in determining the extent of the departure, § 3553(e) requires the sentencing court to take intо account his actual offense conduct and criminal history category. Ignoring these two factors, Auld contends, -“results in a complete disregard of the guidelines themselves and is contrary to the requirements of 18 U.S.C. § 3553(e).” While it is true that the two factors are relevant to the determination of a guideline sentence, a district court’s failure tо take them into account when considering a § 3553(e) motion neither results in a “complete disregard of the guidelines” nor offends the requirements of § 3553(e).
The guidelines themselves provide a list of factors, unrelated to offense conduct and criminal history, that a district court should consider in fixing a substantial assistance departure.
See
U.S.S.G. § 5K1.1(a)(l)-(5). It is the cоnsideration of these factors that § 3553(e) requires.
See Melendez,
C. Apprendi v. New Jersey
Finally, we reject Auld’s alternative argument that
Apprendi v. New Jersey,
*868-876
For the foregoing reasons, we AFFIRM the district court’s decision in its entirety.
Notes
. Section 3553(e) grants the district court authority, upon government motion, to depart below a statutory minimum in order to reward a defendant's substantial assistance:
Upon motion of the Government, the court shall have the authority to impose a sentence below a level established by statute as a minimum sentence so as to reflect а defendant’s substantial assistance in the investigation or prosecution of another person who has committed an offense. Such sentence shall be imposed in accordance with the guidelines and policy statements issued by the Sentencing Commission pursuant to section 994 of title 28, United States Code.
. Section 994(n) charges the Sentencing Commission with ''assur[ing] that the guidelines reflect the general appropriateness of imposing a lower sentence than would otherwise be imposed, including a sentence that is lower than that established by statute as a minimum sentence, to take into account a defendant's substantial assistance in the investigation or prosecution of another person who has committed an offense.”
. U.S.S.G. § 5K1.1 provides:
Upon motion of the government stating that the defendant has provided substantial assistance in the investigation or prosecution of another person who has committed an offense, the court may depart from the guidelines.
(a) The appropriate reduction shall be determined by the court for reasons stated that may include, but are not limited to, consideration of the following:
(1) the court's evaluation of the significance and usefulness of the defendant’s assistance, taking into consideration the government’s evaluation of the assistance rendered;
(2) the truthfulness, completeness, and reliability of any infоrmation or testimony provided by the defendant;
(3) the nature and extent of the defendant's assistance;
(4) any injury suffered, or any danger or risk of injury to the defendant or his family resulting from his assistance; (5) the timeliness of the defendant's assistance.
. Note 7 to U.S.S.G. § 2D1.1 states:
Where a mandatory (statutory) minimum sentence applies, this mandatory minimum sentence may be "waived” and a lower sentence imposed (including a sentence belоw the applicable guideline range), as provided in 28 U.S.C. § 994(n), by reason of a defendant's "substantial assistance in the investigation or prosecution of another person who has committed an offense.” See § 5K1.1. (Substantial Assistance to Authorities). In addition, 18 U.S.C. § 3553(f) provides an exception to the applicability of mandatory minimum sentences in certain cases. See § 5C1.2 (Limitation on Applicability of Statutory Minimum Sentences in Certain Cases).