*

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

unanimously that oral argument would not materially assist the determination of this

appeal. See Fed. 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 Mexico, for PlaintiffAppellee.

Before BRORBY EBEL and LUCERO, Circuit Judges.

EBEL, Circuit Judge.
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This appeal presents us with the issue of whether a sentencing court’s

departure to a lower criminal history category under U.S.S.G. § 4A1.3 may render

a defendant eligible for the “safety valve” exception under 18 U.S.C. § 3553(f)(1)

and U.S.S.G. § 5C1.2(1) to an otherwise mandatory minimum sentence. We join

six other circuits in concluding that it may not.

FACTS

On March 3, 1998, defendant-appellant Donald Ted Owensby pled guilty to

conspiracy to possess with intent to distribute over 100 kilograms of marijuana, in

violation of 21 U.S.C. §§ 846 and 841(b)(1)(B), and 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 criminal 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 federal drug offense to which he

was pleading guilty was committed while he was on probation for the North

Carolina offense, see U.S.S.G. § 4A1.1(d).

Under the Sentencing Guidelines, Owensby’s four criminal history points

placed him in criminal history category III. Owensby’s combined offense level

and criminal history category resulted in a guideline range of 46 to 57 months. 

However, the PSR concluded that Owensby was subject to a five-year mandatory
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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 permitted him to avoid the

mandatory minimum) because that provision is inapplicable where a defendant

has more than one criminal history point.

At sentencing, the district court agreed with Owensby that his four criminal

history points for the two DWI offenses overrepresented 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 mandatory 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 criminal history category.

DISCUSSION

We review the district court’s legal interpretations 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 Guidelines provides in

relevant part: 
1The parties do not dispute that Owensby met the remaining requirements

of § 3553(f).

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Limitation on Applicability of Statutory Minimum Sentences 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 with the applicable

guidelines without regard to any statutory minimum sentence, if the

court finds that the defendant meets the criteria in 18 U.S.C. §

3553(f)(1)-(5) set forth verbatim below:

(1) the defendant does not have more than 1 criminal

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 sentencing.

However, under U.S.S.G. § 4A1.3, the Guidelines provide that:

[i]f reliable information indicates that the criminal history

category does not adequately reflect the seriousness 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 guideline range. 

Subsection 4A1.3(e) further provides: 

The court may conclude that the defendant’s criminal history

was significantly less serious than that of most defendants in the

same criminal history category . . ., and therefore consider a

downward departure from the guidelines. 
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In considering a departure under this provision, the

Commission intends that the court use, as a reference, the guideline

range for a defendant with a higher or lower criminal history

category, as applicable.

Thus, although a defendant’s criminal history points are determined under §

4A1.1, a court may depart from the applicable guideline range if it determines

that the resulting criminal history category overstates (or understates) the

seriousness of a defendant’s criminal history. 

Owensby acknowledges that under the safety valve provision 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 overrepresented and therefore

reduces the defendant’s criminal history category under § 4A1.3, the court, in

effect, reduces the number of criminal history points 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 district 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,
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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 reduced Owensby’s

criminal history category to I, we reject Owensby’s argument that a defendant’s

eligibility for the safety valve provision may be based on a defendant’s reduced

criminal history category as determined by the sentencing court under § 4A1.3. 

Section 4A1.3 permits a court to “impos[e] a sentence 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 category, as applicable.” 

In addition, the commentary to the safety valve provision under § 5C1.2

clearly states that the provision’s reference to “more than 1 criminal history

point” means criminal history points “as determined under § 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 prior criminal 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 consequently depart downward from
2We note that Owensby relies on United States v. Robinson, 991 F. Supp. 1,

4 (D. D.C. 1997), the one district court decision reaching a contrary conclusion. 

However, on appeal, the D.C. Circuit disagreed with the district court’s

reasoning, and remanded with instructions to resentence Robinson to the statutory

minimum sentence. See United States v. Robinson, 158 F.3d 1291, 1294 (D.C.

Cir. 1998). 

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the applicable guideline range to impose a sentence consistent with a range

reflecting a more appropriate criminal history category. That fact, however, does

not alter the original assessment of the defendant’s criminal history points. 

In reaching this determination, we join several circuits 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 unpublished 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 affords a sentencing court

discretion to determine whether a criminal history category accurately reflects a
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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 is 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 determined that Owensby’s four

criminal history points assessed under § 4A1.1 rendered him ineligible for the

safety valve provision under § 5C1.2 and § 3553(f). AFFIRMED.