* D istrict Judge of the Eastern District of Louisiana, sitting

by designation.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 00-20506

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

FAUSTO DOZAL LOPEZ,

Defendant-Appellant.

____________________________

Appeal from the United States District Court

for the Southern District of Texas

_____________________________

August 29, 2001

Before HIGGINBOTHAM and BENAVIDES, Circuit Judges, and DUPLANTIER, *

District Judge.

BENAVIDES, Circuit Judge:

Fa usto Dozal Lopez (Lopez) pleaded guilty to various drug

trafficking and money laundering offenses. He now appeals his sentence,

arguing that the district court erred in concluding that the “safety

valve” provisions in the sentencing guidelines prohibited a sentence

below the statutory minimum. S ee U.S.S.G. §§ 5C1.2 and 2D1.1(b)(6).

Because the safety valve guideline expressly allows a sentence “without

regard to any statutory minimum,” we VACATE and REMAND Lopez’s sentence

for further proceedings.2

I. BACKGROUND

A grand jury charged Lopez, along with several codefendants, in a

six-count superseding indictment with the following offenses: conspiracy

to possess with intent to distribute cocaine; possession with intent to

distribute cocaine; two coun ts of money laundering; and conspiracy to

commit money laundering. S ee 21 U.S .C. §§ 841(a)(1), (b)(1)(A) and 846

and 18 U.S.C. § 1956(a)(1)(A), (a)(1)(A)(I). He pleaded guilty as

charged.

Prior to his rearraignment, Lopez filed an unopposed motion to

waive the preparation of a presentence report. In his motion, Lopez

provided that he had no criminal history and established a guideline

offense level of 38 , based on the possession of 267 kilograms of

cocaine. S ee U.S.S.G. § 2D1.1 (a)(3). Lopez and the government agreed

that he should receive a two-level reduction pursuant to the “safety

valve” provisions in §§ 2D1.1(b)(6) and 5C1.2 and a thre e-level

reduction for acceptance of responsibility pursuant to § 3E1.1(b).

However, the government took no position with respect to whether Lopez

should receive a two-level reduction for a minor role in the offense

under § 3B1.2(b). Nor did the government take any position with respect

to wh ether Lopez qualified for any downward departures based on, among

other things, his extraordinary family responsibilities and serious

coercion or duress. See §§ 5K2.0 and 5K2.12. Based on the above

calculations, the parties agreed that the total offense level was either

31 (with minor role reduction) or 33 (without minor role reduction)3

prior to any possible downward departure. With a criminal history

category of I, an offense level of 31 corresp onds to a guideline range

of 108 to 135 months, and an offense level of 33 corresponds to a

guideline range of 135 to 168 months. The statutory minimum sentence

is 120 months. See 21 U.S.C. § 841 (b)(1)(A)(ii).

At the conclusion of his motion to waive a presentence report,

Lopez asserted that he “qualifie[d] pursuant to [§]5C1.2 for a sentence

below the mandatory minimum.” The government did not object to this

assertion.

At the rearraignment hearing, Lopez requested to be sentenced the

same day. The district court concluded that it had sufficient

information to sentence Lopez and therefore waived preparation of a

presentence report. The district court agreed that Lopez did not have

any criminal history points and that his base offense level should be

38. The court further determined that he met the criteria for the twolevel safety valve reduction and was entitled to a three-level reduction

for acceptance of responsibility. The court was not persuaded that

Lopez was entitled to the reduction for a minor role in the offense.

Thus, the court found that Lopez’s total offense level was 33, which

translated into a guideline range of 135 to 168 months. Further, the

court found that Lopez was entitled to a downward departure to the

s tatutory minimum sentence of 120 months based on, among other things,

his extraordinary family responsibilities and serious coercion or

duress. See, e.g., §§ 5K2.0 and 5K2.12. Finally, the court stated that1 As previously set forth, in a written motion to waive his

presentence report, Lopez asserted that he “qualifie[d] pursuant to

[§] 5C1.2 for a sentence below the mandatory minimum.” Although

Lopez did not object at the sentencing hearing to the district

court’s oral statement that the safety valve provision prohibited

a sentence below the statutory minimum, raising it in his motion

was sufficient to preserve the issue for appeal. S ee United States

v. Flanagan, 87 F.3d 121, 124 (5th Cir. 1996) (explaining that

raising the iss ue in a sentencing memorandum without orally

reiterating request during the sentencing hearing was sufficient to

preserve the issue for appeal).

4 it believed that the safety valve prevented it from departing below the

statutory minimum sentence. Nonetheless, the court expressly stated

that, but for that prohibition, it would have granted a downward

departure to 108 months. Lopez now appeals his sentence.

II. ANALYSIS

The sole issue raised on appeal is whether the district court

erroneously believed that the safety valve provisions prevented it from

departing below the statutory minimum sentence. This Court reviews a

district court’s legal interpretation of the sentencing guidelines d e

novo. United States v. Rodriguez, 60 F.3d 193, 195 (5th Cir. 1995). 1

Section 5C1.2 is known as the “safety valve” provision in the

sentencing guidelines and is entitled “ Limitations on Applicability of

Statutory Minimum Sentences in Certain Cases ,” and it provides as

follows:

In the case of an offense under 21 U.S.C. § 841

.

. . [and] § 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)5 set forth verbatim below:

(1) the defendant does not have more than 1

c riminal history point, as determined under

the sentencing guidelines;

(2) the defendant did not use violence or

credible threats of violence or possess a

firearm or other dangerous weapon (or induce

another participan t to do so) in connection

with the offense;

(3) the offense did not result in death or

serious bodily injury to any person;

(4) the defendant was not an organizer,

le ader, manager, or supervisor of others in

the offense, as determined under the

sentencing guidelines and was not engaged in

a continuing criminal enterprise, as defined

in 21 U.S.C. § 848; and

(5) not later than the time of the

sentencing hea ring, the defendant has

truthfully provided to the Government all

information and evidence the defendant has

concerning the offense or offenses that were

part of the same course of conduct or of a

common scheme or plan, but the fact that the

defendant has no relevant or useful other

information to provide or that the

Government is already aware of the

information shall not preclude a

determination by the court that the

defendant has complied with this

requirement.

(emphasis added).

Additionally, in § 2D1.1(b)(6), the guidelines provide that if a

defendant me ets these five requirements and the offense level is 26 or

greater, the offense level is decreased by 2 levels.

It is undisputed that Lopez met the five requirements for the

safety valve reduction and that the court properly gave him the two-6

level reduction. The point of contention is whether the district court

erred in believing that it did not have the authority to sentence Lopez

to 108 months, which is below the statutory minimum sentence and at the

bottom of his applicable guideline range after the adjustments and

downward departure.

As indicated, during the sentencing hearing the district court

stated:

I am aware of the vagaries of the safety valve

which prevent me from departing below the

statutory minimum of ten years. We have in

different contexts discussed the fact that this

guideline range is driven by the fact that there

was more than 150 kilograms of cocaine. That’s

true. There was substantially more than 150

kilograms and I do not feel that the vagaries of

that safety valve problem are ones that you can

correct through a minor role adjustment. It is

just too artificial.

Having said that, I will also say that I am

persuaded that a downward departure, to the extent

permitted by law, is appropriate.

* * *

To the extent that the safety valve does not

permit me to go below the statutory minimum, so be

it, but I think that the safety valve has not

operated in this context to its full extent

because of the vagaries of this charge and scoring

under the guidelines.

* * *

H aving said all of that, I am goin g to

downward depart to the statutory minimum of ten

years which puts us

-– I w ill be departing

downward from a level 33 to a level 31 for the

reasons stated. In the unlikely event that there

is an appeal, I will say that I would have

sentenced the defendan t at the 108[-month] level

based on these downward departure factors if I2 Section 5K1.1 is entitled “Substantial Assistance to

Authorities” and provides, in part, that “[u]pon motion of the

government stating that the defendant h as provided substantial

assistance in the investigation or prosecution of another person who has

committed an offense, the court may depart from the guidelines.”

7 were permitted to do so by law. And should the

law change in the safety valve, I would be willing

to reconsider the sentence in that context.

As the record makes perfectly clear, the district court believed

the safety valve prohibited it from sentencing Lopez to 108 months. The

district court was mistaken in such belief.

The government concedes that the safety valve authorizes the

district court to impose a sentence below the statutory minimum “in

certain cases.” The government argues that a sentencing court may not

impose a sentence without regard to the statutory minimum sentence under

the authority of § 5K2.0 when the applicable imprisonment range

following an adjustment based on the safety valve remains above the

statutory minimum sentence. While recognizing that it is not

controlling, the governm ent relies on United States v. Solis, 169 F.2d

224 (5th Cir. 1999), as support for its position.

In Solis, the sentencing court granted the defendant a five-level

r eduction under the safety valve, primarily for substantial assistance

the defendant had given to the government. 169 F.3d at 226. This Court

determined that the district court erred in giving such a departure and

that it could not, absent a government motion, give a reduction for

substantial assistance under § 5K1.1. 2 I d. at 226-27. We further

conclude d that § 5K2.0 does not afford a district court “any additional8

authority to consider substantial assistance departures without a

Government motion.” Id.

Solis is inapposite because here the government is not challenging

the reductions Lopez received. Instead, the government is arguing that

the district court could not sentence Lopez below the statutory minimum

sentence because the district court first applied the safety valve

reduction and subsequently applied the reduction under § 5K2.0.

Essentially, the government contends that the district court did not err

because the last reduction given to Lopez was pursuant to § 5K2.0,

which, in and of itself, does not allow a sentence below the statutory

minimum. S ee United States v. Duncan, 242 F.3d 940, 949 (10th Cir.

2001) (explaining that a district court “lacks the authority to lower

a mandatory minimum sentence via section 5K2.0 of the Guidelines").

We are not persuaded that the order in which a reduction is applied

affects the safety valve’s exemption from the statutory minimum. The

safety valve guideline provides that “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

. . . .” (emphasis added). The guidelines do not state

that the statutory minimum sentence re-enters the calculation after the

two-level reduction under the safety valve provisions has been granted.

Indeed, the commentary to § 5C1.2 indicates otherwise. Specifically,

the commentary provides that “[a] defendant who meets the criteria under

this section is e xempt from any othe rwise applicable statutory minimum3 W e commend the district court for providing a clear

explanation of its reasoning and its intent with respect to its

sentencing decision. The clarity of its decision greatly assisted

this Court in the resolution of the issue before us.

9 sentence of imprisonment and statutory minimum term of supervised

release.” § 5C1.2, comment. (n.9) (emphasis added). This commentary

indicates that the defendant’s entire sentence is exempt from the

statutory minimum sentence, not just that the application of the twolevel reduction is exempt from the statutory minimum.

Accordingly, we find that the district court erred in believing

that it was without the authority to sentence Lopez below the statutory

minimum sentence of 120 months. “Although we lack jurisdiction to

review a defendant’s challenge to his sentence based on mere

dissatisfaction with the court’s refusal to grant a downward departure,

we may do so if the court’s refusal was the result of a violation of

law.” U

nited States v. Flanagan, 87 F.3d 121, 125 (5th Cir. 1995). In

Flanagan, t he defendant, in a sentencing memorandum, requested a

reduction under § 5C1.2. During the sentencing hearing, the district

court expressly stated that, although it might be inclined to do so, the

c ourt could not grant a downward departure below the statutory minimum

sentence because it was “bound by the law.” I d. O n appeal, we

explained that refusing to depart is in violation of law only if the

c ourt mistakenly believed that it lacked the aut hority to depart. Id.

Here, the court expressly stated that it would have sentenced Lopez

below the statutory minimum sentence if permitted to do so by law. 3 The10

court’s mistaken belief constitutes a violation of law under our

precedent. Therefore, we vacate Lopez’s sentence and remand for

resentencing.

For the above reasons, the sentence is VACATED, and the case is

REMANDED for re-sentencing.

VACATED and REMANDED.