United States v. Willis ( 2000 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 99-4889
COREY S. WILLIS,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of West Virginia, at Martinsburg.
W. Craig Broadwater, District Judge.
(CR-99-19)
Submitted: May 16, 2000
Decided: September 8, 2000
Before MURNAGHAN, MICHAEL, and MOTZ, Circuit Judges.*
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Vacated and remanded by unpublished per curiam opinion.
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COUNSEL
S. Andrew Arnold, Shepherdstown, West Virginia, for Appellant.
Melvin W. Kahle, Jr., United States Attorney, Thoms O. Mucklow,
Assistant United States Attorney, Martinsburg, West Virginia, for
Appellee.
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*Judge Murnaghan did not participate in the consideration of this case.
The opinion is filed by a quorum of the panel pursuant to 28 U.S.C.
§ 46(d) (1994).
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
Pursuant to his guilty plea, Corey S. Willis was convicted of dis-
tributing crack cocaine. On appeal, he alleges that he was entitled to
a downward adjustment under USSG § 2D1.1(b)(6) 1 even though he
was not subject to a mandatory minimum sentence. Because we find
that USSG § 2D1.1(b)(6) operates independently of USSG § 5C1.2,
we vacate Willis' sentence and remand the case for resentencing.
The basic facts of this case are straightforward and undisputed.
Willis was part of a small group that distributed crack cocaine in Jef-
ferson County, West Virginia. Police ultimately arrested the conspira-
tors after a series of controlled buys.
At sentencing, Willis argued that he was entitled to the USSG
§ 2D1.1(b)(6) adjustment. Although the Government conceded that
Willis satisfied the factors listed in USSG § 5C1.2(1)-(5) and that he
had the appropriate offense level, it objected to the adjustment
because Willis was not subject to a mandatory minimum sentence.2
Specifically, the Government argued that a defendant only qualifies
for the adjustment if he also qualifies for the"safety valve." The dis-
trict court accepted the Government's argument and denied Willis'
motion.
We review the district court's application of the Sentencing Guide-
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1 U.S. Sentencing Guidelines Manual (1998). This section states that:
"If the defendant meets the criteria set forth in subdivisions (1)-(5) of
[USSG] § 5C1.2 (Limitation on Applicability of Statutory Minimum
Sentences in Certain Cases) and the offense level determined above is
level 26 or greater, decrease by 2 levels."
2 A mandatory minimum sentence is required for application of the
"safety valve" under USSG § 5C1.2.
2
lines de novo. See United States v. Daughtrey , 874 F.2d 213, 218 (4th
Cir. 1989). The specific issue presented here is whether USSG
§ 2D1.1(b)(6) applies only when the defendant is subject to a manda-
tory minimum sentence (as with USSG § 5C1.2), or whether it is a
separate and distinct entity.
In deciding this issue, we find the Second Circuit's decision in
United States v. Osei, 107 F.3d 101, 103-04 (2d Cir. 1997), highly
persuasive. Osei presented a factual scenario identical to that found
in the present case. In finding that USSG § 2D1.1(b)(4)3 is distinct
from USSG § 5C1.2, the Second Circuit reasoned that if the Commis-
sion wanted to restrict the application of USSG§ 2D1.1(b)(4) to
defendants facing a mandatory minimum sentence, it could have
expressly done so. See id.
We agree. The plain language of USSG § 2D1.1(b)(6) merely
requires that a defendant meet the criteria found in USSG § 5C1.2(1)-
(5); it does not state that the defendant must satisfy any of the other
requirements found in that section. See also United States v. Leonard,
157 F.3d 343, 345-46 (5th Cir. 1998) (reaching the same result);
United States v. Mertilus, 111 F.3d 870, 873-74 (11th Cir. 1997)
(same).
We therefore vacate Willis' sentence and remand the case for
resentencing in accordance with Osei. We dispense with oral argu-
ment because the facts and legal contentions are adequately presented
in the materials before the court, and argument would not aid the
decisional process.
VACATED AND REMANDED
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3 In 1997, the Commission redesignated USSG § 2D1.1(b)(4) as sub-
section (b)(6). See Amendment 555.
3