*After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of this appeal. SeeFed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The cause therefore is ordered submitted without oral argument. 

## F I L E D United States Court of Appeals Tenth Circuit 

### AUG 27 1999 

### PATRICK FISHER Clerk PUBLISH UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. DONALD TED OWENSBY, Defendant-Appellant. No. 99-2009

Appeal from the United States District Court for the District of New Mexico (D.C. No. CR No. 97-648 LH)

Submitted on the briefs: * Francisco Mario Ortiz, Las Cruces, New Mexico, for Defendant-Appellant. John J. Kelly, United States Attorney, and Peter M. Ossorio, Supervisory Assistant United States Attorney, Las Cruces, New M exico, for PlaintiffAppellee.

Before BRORBY EBEL and LUCERO , Circuit Judges.

EBEL , Circuit Judge.- 2 -

This appeal presents us with the issue of whether asentencing court’s departure to a lower criminal history category unde r U.S.S.G. § 4A1.3 may render a defendant eligible for the “safety valve” excepti on under 18 U.S.C. § 3553(f)(1) and U.S.S.G. § 5C1.2(1) to an otherwise mandatory m inimum sentence. We join six other circuits in concluding that it may not.
FACTS On March 3, 1998, defendant-appellant Donald Ted Ow ensby pled guilty to conspiracy to possess with intent to distribute ove r 100 kilograms of marijuana, in violation of 21 U.S.C. §§ 846 and 841(b)(1)(B), an d to aiding and abetting, in violation of 18 U.S.C. § 2. Owensby’s presentence report (“PSR”) calculated an offense level of 21 and assigned Owensby four crimi nal history points -- two points for two previous DWI convictions from North Carolina, see U.S.S.G. § 4A1.1(c), and two additional points because the fed eral drug offense to which he was pleading guilty was committed while he was on p robation for the North Carolina offense, see U.S.S.G. § 4A1.1(d). Under the Sentencing Guidelines, Owensby’s four cri minal history points placed him in criminal history category III. Owens by’s combined offense level and criminal history category resulted in a guideli ne range of 46 to 57 months. However, the PSR concluded that Owensby was subjectto a five-year mandatory- 3 -

minimum sentence under 21 U.S.C. § 841(b)(1)(B). The PSR further concluded that Owensby was ineligible for the “safety valve” provision under 18 U.S.C. § 3553(f) and U.S.S.G. § 5C1.2 (which would have perm itted him to avoid the mandatory minimum) because that provision is inappl icable where a defendant has more than one criminal history point. At sentencing, the district court agreed with Owens by that his four criminal history points for the two DWI offenses overreprese nted his criminal history, and therefore the court reduced his criminal history category to II. The court noted that it would have reduced Owenby’s criminal history category to I if it thereby could have avoided the mandatory minimum. However, the court concluded that it lacked the authority to depart below the mandato ry minimum, and therefore sentenced Owensby accordingly. Owensby now appeals, contending that he should have been eligible for the safety valve provision based on his reduced crimina l history category.
DISCUSSION We review the district court’s legal interpretation s of the Sentencing Guidelines de novo. See United States v. Wilkinson , 169 F.3d 1236, 1237 (10th Cir. 1999). The “safety valve” provision under the Sentencing G uidelines provides in relevant part:1 The parties do not dispute that Owensby met the rem aining requirements

of § 3553(f). - 4 - Limitation on Applicability of Statutory Minimum Se ntences in Certain Cases In the case of an offense under 21 U.S.C. § 841, . . . [or] § 846, . . . the court shall impose a sentence in accordance wit h the applicable guidelines without regard to any statutory minimum sentence, if the court finds that the defendant meets the criteria i n 18 U.S.C. § 3553(f)(1)-(5) set forth verbatim below: (1) the defendant does not have more than 1 crimina l history point, as determined under [§ 4A1.1 of the] sentencing guidelines; . . . . U.S.S.G. § 5C1.2; see also id. comment. (n.1). 1 Section 4A1.1 sets forth various factors to be considered in assessing a defendant’s criminal history points. A defendant’s criminal history point total places the defendant in a particular criminal history category for purposes of sentencin g. However, under U.S.S.G. § 4A1.3, the Guidelines pro vide that: [i]f reliable information indicates that the crimin al history category does not adequately reflect the seriousnes s of the defendant’s past criminal conduct or the likelihood that the defendant will commit other crimes, the court may consider imposing a sentence departing from the otherwise applicable gu ideline range. Subsection 4A1.3(e) further provides: The court may conclude that the defendant’s crimina l history was significantly less serious than that of most de fendants in the same criminal history category . . ., and therefore consider a downward departure from the guidelines.- 5 - In considering a departure under this provision, th e Commission intends that the court use, as a referen ce, the guideline range for a defendant with a higher or lower crimin al history category, as applicable. Thus, although a defendant’s criminal history point s are determined under § 4A1.1, a court may depart from the applicable guide line range if it determines that the resulting criminal history category overst ates (or understates) the seriousness of a defendant’s criminal history. Owensby acknowledges that under the safety valve pr ovision of § 5C1.2, a defendant may not avoid a statutory minimum if the defendant has more than one criminal history point. Owens argues, however, that where a sentencing court determines that a defendant’s criminal history is o verrepresented and therefore reduces the defendant’s criminal history category u nder § 4A1.3, the court, in effect, reduces the number of criminal history poin ts to be attributed to the defendant for sentencing. In other words, Owensby contends that a defendant should be sentenced as though his criminal history points were the same as other defendants in the reduced category. Here, the dis trict court stated that it would have reduced Owensby’s criminal history category to I if doing so would have triggered the safety valve provision and permitted the court to sentence Owensby below the mandatory minimum. Owensby argues that, under a reduced criminal history category of I, he should have been eligible for the safety valve provision,- 6 -

because persons in criminal history category I have , by definition, only 0 or 1 criminal history point(s). Even assuming that the district court had in fact r educed Owensby’s criminal history category to I, we reject Owensby’s argument that a defendant’s eligibility for the safety valve provision may be b ased on a defendant’s reduced criminal history category as determined by the sent encing court under § 4A1.3. Section 4A1.3 permits a court to “impos[e] a senten ce departing from the otherwise applicable guideline range.” Section 4A1 .3 does not authorize a court to add or subtract individual criminal history points from a defendant’s record; rather, it permits the sentencing court, when departing from the otherwise applicable guideline range, to “use, as a reference , the guideline range for a defendant with a higher or lower criminal history c ategory, as applicable.” In addition, the commentary to the safety valve pro vision under § 5C1.2 clearly states that the provision’s reference to “m ore than 1 criminal history point” means criminal history points “as determinedunder § 4A1.1.” U.S.S.G. § 4A1.3 comment. (n.1). As noted above, under § 4A1 .1, points are assessed based on objective factors related to a defendant’s priorcriminal record. A court may subsequently determine under § 4A1.3 that a defendant’s criminal history point total (and thus his corresponding criminal history category) overstates the seriousness of his criminal history, and may conseq uently depart downward from2 We note that Owensby relies on United States v. Rob inson , 991 F. Supp. 1,

4 (D. D.C. 1997), the one district court decision r eaching a contrary conclusion. However, on appeal, the D.C. Circuit disagreed with the district court’s reasoning, and remanded with instructions to resent ence Robinson to the statutory minimum sentence. See United States v. Robinson , 158 F.3d 1291, 1294 (D.C. Cir. 1998). - 7 - the applicable guideline range to impose a sentence consistent with a range reflecting a more appropriate criminal history cate gory. That fact, however, does not alter the original assessment of the defendant’ s criminal history points. In reaching this determination, we join several cir cuits that have addressed this issue and arrived at the same conclusion. See United States v. Robinson , 158 F.3d 1291, 1294 (D.C. Cir. 1998), cert. denied , 119 S. Ct. 1155 (1999) 2 ; United
States v. Orozco , 121 F.3d 628, 630 (11th Cir. 1997); United States v. Ward , No. 95-5967, 1996 WL 531017, at **1 (4th Cir. Sept. 19, 1996) (unpublished); United States v. Moog , Nos. 95-3389, 95-3417, 95-4184, 1996 WL 431343, at **1 (8th Cir. Aug. 2, 1996) (unpublished); United States v. Resto , 74 F.3d 22, 28 (2d Cir. 1996); United States v. Valencia-Andrade , 72 F.3d 770, 774 (9th Cir. 1995). We also reaffirm our conclusion in a recent unpublishe d decision by this court addressing this issue. See United States v. Sierra Robles , No. 98-1327, 1999 WL 535294 (10th Cir. July 26, 1999) (unpublished). In short, we agree that, “while U.S.S.G. § 4A1.3 af fords a sentencing court discretion to determine whether a criminal history category accurately reflects a- 8 -

defendant’s criminal history, nothing in U.S.S.G. § 4A1.1 suggests that the sentencing court has any discretion with respect to the calculation of a defendant’s criminal history score: Section 4A1.1 i s a mechanistic provision which merely instructs the sentencing court to add points for various carefullydefined criminal history occurrences.” Robinson , 158 F.3d at 1294. The district court in this case correctly determine d that Owensby’s four criminal history points assessed under § 4A1.1 rend ered him ineligible for the safety valve provision under § 5C1.2 and § 3553(f). AFFIRMED.