UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 92-5569

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

HENRY JOSEPH SANTA LUCIA,

Defendant-Appellant.

Appeal from the United States District Court

for the Western District of Texas

May 7, 1993

Before POLITZ, Chief Judge, REAVLEY and BARKSDALE, Circuit Judges.

POLITZ, Chief Judge: 

Convicted on a guilty plea of engaging in a continuing criminal

enterprise in violation of 21 U.S.C. § 848(a), Henry Joseph Santa

Lucia appeals, contesting the voluntariness of his plea and

challenging his sentence. Finding no error, we affirm.

Background

Santa Lucia pled guilty to the first of multiple counts of an

indictment charging participation in a cocaine distribution

operation. The count to which he pled, a violation of 21 U.S.C. 

§ 848(a), carries a statutory minimum penalty of 20 years
 

1 After credit for acceptance of responsibility, Santa Lucia's

offense level was 34 and his criminal history category was I.

2

imprisonment. Santa Lucia's plea bargain agreement recognized this

but it committed the government to seek a downward departure to not

more than 18 years because of Santa Lucia's assistance. As

promised, at sentencing the government moved for a downward

departure to 18 years imprisonment. Santa Lucia objected,

insisting that he should be sentenced within the United States

Sentencing Guideline range of 151 to 188 months that would have

applied had his offense not been subject to a statutory minimum

sentence.1 The district court rejected this argument and imposed

an 18-year sentence. This appeal followed.

Analysis

Santa Lucia raises two issues on appeal: (1) the district court

impermissibly departed upward without explanation by sentencing

above the guideline range that would have applied absent a

statutory minimim; and (2) his plea was involuntary because he

believed he would be sentenced within the 151-188 month range

absent unforeseen grounds for departure. Neither contention has

merit.

The 18-year sentence was a downward departure from the guideline

sentence, not, as Santa Lucia maintains, an upward departure. 

U.S.S.G. § 5G1.1(b) provides:
 

2 See also United States v. Fields, 923 F.2d 358 (5th Cir.),

cert. denied, _____ U.S. _____, 111 S.Ct. 2066, 114 L.Ed.2d 470

(1991).

 

3 Application Note 1 to § 5K1.1 p.s. declares:

Under circumstances set forth in 18 U.S.C. §

3553(e) and 28 U.S.C. § 994(n), as amended,

substantial assistance in the investigation or

prosecution of another person who has committed an

offense may justify a sentence below a statutorily

required minimum sentence.

 

4 See United States v. Hayes, 939 F.2d 509 (7th Cir. 1991),

cert. denied, _____ U.S. _____, 112 S.Ct. 896, 116 L.Ed.2d 798

(1992). Santa Lucia also contends that the district court ignored

his assertion that he had cooperated with the government to the

best of his ability and instead relied solely on the government's

assessment of his assistance in selecting the 18-year sentence.

His argument rests on a misreading of the record. In affirming

3

Where a statutorily minimum sentence is greater than the

maximum of the applicable guideline range, the

statutorily required minimum sentence shall be the

guideline sentence.2

18 U.S.C. § 3553(e) authorizes the district court to sentence

"below a level established by statute as minimum sentence" upon

motion of the government indicating that the defendant has provided

"substantial assistance in the investigation or prosecution of

another person who has committed an offense." Consistent with this

provision and 28 U.S.C. § 994(n), U.S.S.G. § 5K1.1 p.s. permits a

downward departure from the guidelines sentence if the government

files a substantial assistance motion.3 The plain language of

these provisions admits of only one interpretation: a sentence

below the statutory minimum is a downward departure from the

guideline sentence. Contrary to Santa Lucia's argument, the

statutory minimum is the guideline sentence whether or not the

government moves for a reduction.4 And, upon appropriate motion by
that it was sentencing "based, not on the guideline level, but on

the government's recommendation," the court was referring to the

dispute about whether the guideline sentence was the statutory

minimum or the guideline level that would apply absent a statutory

minimum.

 

5 Three circuits addressing this matter have found

departures from statutory minimum sentences appropriate upon

motion by the government. United States v. Ah-Kai, 951 F.2d 490

(2d Cir. 1991); United States v. Wade, 936 F.2d 169 (4th Cir.

1991); aff'd 112 S.Ct. 1840 (1992); United States v. Keene, 933

F.2d 711 (9th Cir. 1991).

 

6 905 F.2d 867 (5th Cir. 1990).

 

7 Jones, 905 F.2d at 868 (internal citations omitted); see

also United States v. Pearson, 910 F.2d 221 (5th Cir. 1990), cert.

denied, _____ U.S. _____, 111 S.Ct. 977, 112 L.Ed.2d 1062 (1991).

4

the government, the court may depart downward from such a statutory

minimum sentence.5

Finally, Santa Lucia's challenge to his guilty plea is

foreclosed by circuit precedent. As we held in United States v.

Jones,

6 reliance on the erroneous advice of counsel relative to the

sentence likely to be imposed does not render a guilty plea

unknowing or involuntary. "As long as the defendant understood the

length of time he might possibly receive he was fully aware of his

plea's consequences."7 The court informed Santa Lucia during his

Fed.R.Crim.P. 11 allocution that a guilty plea would expose him to

a mandatory minimum sentence of 20 years and a maximum of life

imprisonment, a fine of $2 million, and supervised release. No

more was required to inform Santa Lucia of his sentencing exposure.

AFFIRMED.