* The Hon. Jon Phipps McCalla, United States District Judge for the Western District of Tennessee, sitting by designation. -1- NOT RECOMMENDED FOR FULL-TEXT PUBLICATION File Name: 06a0293n.06 Filed: April 27, 2006 NO. 05-3422 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, ) ) Plaintiff-Appellee, ) ) v. ) ON APPEAL FROM THE UNITED ) STATES DISTRICT COURT FOR THE FORREST H. SMITH, ) SOUTHERN DISTRICT OF OHIO ) ) OPINION Defendant-Appellant. )
Before: DAUGHTREY and McKEAGUE, Circuit Judges, and McCALLA, *District Judge.
McCalla, District Judge. Defendant Fo rrest H. Smith appeals his sentence imposed by the district court following a plea of guilty to four counts: (1) conspiracy to distribute and possess with intent to distri bute over 50 grams of cocaine base (21 U.S.C. §§ 841(a)(1), (b)(1)(A)(iii), and 846); (2) distribution of over 50 grams of cocaine base (21 U.S.C. §§ 841(a)(1) and (b)(1)(A)(iii)); (3) possession with intent to distribute more than 5 grams of cocaine base (21 U. S.C. §§ 841(a)(1) and (b)(1)(B)(iii)); and (4) carrying a firearm in relation to a drug tra fficking crime (18 U.S.C. § 924(c)(1)(A)(i)). The district court imposed the statutory mandatory minimum sentence of 120 months’-2- imprisonment on the drug conspiracy, distri bution, and possession counts, to be served concurrently, and the mandatory consecutiv e sentence of 60 m onths’ imprisonment under 18 U.S.C. § 924(c). Smith raises four issues on appeal: (1) t he district court erred by denying his request for a downward departure on the basis that his criminal history category overrepresented the seriousness of his past crim inal conduct; (2) the district court failed to recognize its authority to depart from the advisory sentencing guidelines under Booker ; (3) the government refused to file a substantial assistance motion in bad faith; and (4) the 100:1 ratio for sentences for offenses involving crack cocaine versus those involving powder cocaine is unconstitutional. For the reasons set forth below, we AFFIRM. Background and Procedural History Smith and two companions were arrest ed on July 26, 2004, following Smith’s sale of 118 grams of cocaine base to a cooperating witness working with the federal Ohio Valley Drug Task Force. After their arrest, the police searched the car in which the sale had transpired and found approximately eightgrams of cocaine base on the center console and a revolver on the floor of the back seat, where Smith had been sitting. Smith and his codefendants were indicted on A ugust 19, 2004, in the Southern District of Ohio. Smith entered a plea of guilty to a ll counts in the indictment on December 13, 2004. The government did not file a subst antial assistance motion, and there was no plea agreement. The district court determined that the appropriate sentencing guidelines range on the drug counts was 121 to 151 months’ impris onment, which reflected an offense level-3- of 29 and a criminal history category of IV. The court sentenced Smith to the statutory mandatory minimum of 120 months’ imprisonm ent on the drug conspiracy, distribution, and possession counts, to be served concurr ently, and to the mandatory consecutive sentence of 60 months’ impr isonment on the firearm count. Smith’s total term of imprisonment is 180 months. Discussion Smith’s first argument on appeal is that t he district court should have granted his request for a downward departure on the basis that his criminal history category overrepresented the seriousness of his pas t criminal conduct. The United States Sentencing Guidelines permit a downward departure from the guideline sentence range when a defendant’s criminal history category significantly overrepresents the seriousness of his criminal history or t he likelihood that he will commit other crimes. U.S. S ENTENCING G UIDELINES M ANUAL § 4A1.3 (2004). This Court has “consistently held that the decision by a district court not to depart downwards from the Guidelines is not reviewable on appeal unless the record reflects that the district court was not aware of or did not understand its discretion to make such a departure.” United States v. Butler , 207 F.3d 839, 843 (6th Cir. 2000). In this case, t he record reflects that the district court was aware of its authority to depart downwar ds, but declined to do so for the reasons explained at sentencing. Accordingly, we do not have jurisdiction to review the district court’s determination. Smith next contends that the district c ourt failed to recognize its authority to impose a sentence below the applicable gui deline range pursuant to the Supreme Court’s recent holding in United States v. Booker , 543 U.S. 220 (2005). To the contrary,-4- the record indicates that the district c ourt explicitly recognized that under Booker , the sentencing guidelines are advisory and not mandat ory. Moreover, the district court did in fact depart downwards from the guide lines range of 121 to 151 months and imposed concurrent sentences of 120 months’ impris onment on the drug counts. Finally, as the district court correctly noted, Booker did not give the district court the authority to impose a sentence below the statutory mandatory minimum, which was 120 months on the drug counts and a consecutive sentence of60 months on the firearm count. This Court has made clear that when a defendant is sentenced to the statutory mandatory minimum, “the application of Bookercould not result in a decreased sentence.” United States v. Joiner , 123 Fed. Appx. 681, 683 (6th Cir. Feb. 14, 2005); see alsoUnited States v. Johnson , 129 Fed. Appx. 966, 972 (6th Cir. May 5, 2005). Since Smith received the mandatory minimum sentenc es prescribed by statute, Booker does not apply. While he does not raise it as a separate issue in his brief, Smith also challenges the government’s alleged bad faith refusal to file a substantial assistance downward departure motion. The district courts do not have the authority to review the government’s refusal to file a subs tantial assistance motion upon a defendant’s allegation of bad faith. United States v. Moore , 225 F.3d 637, 641 (6th Cir. 2000). They have the authority to review the government’s refusal to file a substantial assistance motion only “if they find that the refusal was based on an unconstitutional motive” such as the defendant’s race or religi on. United States v. Rashid , 274 F.3d 407, 418 (6th Cir. 2001)(quoting Wade v. United States , 504 U.S. 181, 185-86 (1992)). Because Smith has not alleged – either on appeal or before the district court – that the government was-5- motivated by an unconstitutional motive in failing to file a downward departure motion, we do not have the authority to review this argument on appeal. Finally, Smith argues that the 100:1 ratio used to determine sentences for crack cocaine offenses violates the consti tutional guarantees of equal protection and due process as well as state and federal civil ri ghts laws. This argument does not provide Smith a basis upon which to appeal his sentence, as it is well established that the 100:1 ratio is constitutional. See, e.g. , United States v. Blair , 214 F.3d 690, 702 (6th Cir. 2000); United States v. Hill , 79 F.3d 1477, 1488-89 (6th Cir.1996). For the reasons set forth above, we AFFIRM Smith’s sentence.