United States Court of Appeals

Fifth Circuit

FILED

January 18, 2007

Charles R. Fulbruge III

Clerk

UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

No. 06-50241

UNITED STATES OF AMERICA,

Plaintiff-Appellant,

versus

MICHAEL JASON KRUMNOW, 

Defendant-Appellee.

Appeal from the United States District Court

for the Western District of Texas

(6:05-CR-48-10)

Before BARKSDALE, DeMOSS, and PRADO, Circuit Judges.

RHESA HAWKINS BARKSDALE, Circuit Judge:

The Government challenges Michael Jason Krumnow’s receiving a

concurrent, rather than the statutorily-required consecutive,

sentence for possession of a firearm during the commission of a

drug-trafficking offense. CONVICTION AFFIRMED; SENTENCE VACATED;

REMANDED FOR RESENTENCING.

I.

Krumnow was charged with: possession with intent to

distribute methamphetamine within 1,000 feet of a public school, in

violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(C), and 860(a) (drugpossession count); and possession of a firearm during the

commission of a drug-trafficking offense, in violation of 18 U.S.C.
2

§ 924(c)(1)(A)(i) (firearm-possession count). He pleaded guilty to

both counts.

The drug-possession conviction was subject to a one-year

minimum sentence, pursuant to 21 U.S.C. §§ 841(b)(1)(C) and 860(a).

The firearm-possession conviction was subject to a 60-month minimum

sentence, to be served consecutive with the drug-possession

sentence. 18 U.S.C. §§ 924(c)(1)(A) (“any person who, during and

in relation to any ... drug trafficking crime ..., possesses a

firearm, shall, in addition to the punishment provided for such ...

drug trafficking crime — (i) be sentenced to a term of imprisonment

of not less than 5 years”), (c)(1)(D)(ii) (“no term of imprisonment

imposed on a person under this subsection shall run concurrently

with any other term of imprisonment imposed on the person,

including any term of imprisonment imposed for the ... drug

trafficking crime during which the firearm was ... possessed”).

Accordingly, the Presentence Investigation Report (PSR) stated the

firearm-possession sentence “shall be consecutive” to the drugpossession sentence.

Although Krumnow filed objections to the PSR, he did not

object to his firearm-possession sentence’s being consecutive.

Krumnow also filed a sentencing memorandum, which contained letters

from family, friends, and acquaintances, for mitigation-ofpunishment purposes.
3

At sentencing, Krumnow’s “only objection”, which was

unopposed, was to his drug-possession-conviction Guidelines offense

level. For that conviction, after the district court made two

Guidelines reductions, including for acceptance of responsibility,

the advisory Guidelines sentencing range was 63-78 months. The

court imposed a below-the-range sentence of 60 months.

For the firearm-possession conviction, after presenting

mitigation-of-punishment testimony from Krumnow and his parents,

Krumnow’s counsel stated: “[I]f [the court] sentence[s] within the

[G]uidelines and sentence[s] ... Krumnow consecutively ... the

punishment in this case really outstrips what [he] needs”.

(Emphasis added.) In response, the Government requested that

Krumnow be sentenced within “the [G]uideline range”; and, later,

that the court “sentence within the [G]uideline range as to [the

drug-possession conviction] and the 60 months as to [the firearmpossession conviction]”.

For the firearm-possession conviction, the district court

stated “the mandatory sentence is 60 months”; it then stated it

would “depart downward, however” for that sentence, “and impose a

period of 60 months ... but to be served concurrently, not

consecutively”. Although the court gave no reasons for its doing

so at sentencing, its subsequent Statement of Reasons, which

recognized the firearm-possession sentence was “concurrent instead

of consecutive as is mandated by statute” (emphasis added), stated:
4

“the sentence imposed is below a mandatory minimum term because the

Court has determined that the mandatory minimum does not apply

based on findings of fact in this case”; and “[t]he sentence

imposed is below the advisory guideline range [because of] the

nature and the circumstances of the offense and the history and the

characteristics of the defendant pursuant to 18 U.S.C. §

3553(a)(1)”. (Emphasis in original.)

At sentencing, the district judge stated he was “aware that

this is a sentence that the government could easily appeal if it

wishes. If it does, I will not be insulted. The government has

the right to do that”. The court also informed Krumnow of his

right to appeal the sentence, “[i]f [he were] foolish enough to do

that”. Subsequently at sentencing, the Government did not object

to the sentences’ not being consecutive.

II.

In general, pursuant to United States v. Booker, 543 U.S. 220

(2005) (Guidelines only advisory), we review sentences for

reasonableness. E.g., United States v. Smith, 440 F.3d 704, 706

(5th Cir. 2006). “Both a district court’s post-Booker sentencing

discretion and the reasonableness inquiry on appeal must be guided

by the sentencing considerations set forth in 18 U.S.C. § 3553(a).”

Id. Concerning the firearm-possession sentence’s not being

consecutive, however, our analysis does not turn on whether that

sentence was: a “Guideline sentence”; a “Guideline sentence”
5

including a Guidelines-allowed upward or downward departure; or a

“non-Guideline sentence”. Id. at 707 (discussing the three

different types of post-Booker sentences). Instead, as discussed

below, our holding for that issue is mandated by 18 U.S.C. §

924(c). 

A.

First, Krumnow contends the Government’s failure to object in

district court to the sentences’ not being consecutive dictates

plain-error review. Although the Government should have objected,

Krumnow’s contention is unavailing. 

“Generally, if a party fails to timely raise an issue in

district court, we will review it for plain error unless the party

made its position clear to the district court and to have objected

would have been futile.” United States v. Castillo, 430 F.3d 230,

242 (5th Cir. 2005) (emphasis added) (citation omitted). In this

regard, pursuant to the PSR and its comments at sentencing, the

Government made clear its position regarding Krumnow’s sentence,

including the firearm-possession sentence’s being consecutive.

Further, the court’s comments at sentencing demonstrate the

futility of any Government objection to the concurrent, rather than

consecutive, sentences.

B.

For the firearm-possession sentence, “a district court may

impose a sentence of imprisonment below a statutory minimum ...
6

only if: (1) the Government [so moves] pursuant to 18 U.S.C. §

3553(e)[,] asserting the defendant’s substantial assistance to the

Government; or (2) the defendant meets the ‘safety valve’ criteria

set forth in 18 U.S.C. § 3553(f)”. United States v. Phillips, 382

F.3d 489, 499 (5th Cir. 2004) (emphasis added). Otherwise, postBooker sentencing courts lack discretion to depart below relevant

statutory minimums. E.g., United States v. Robinson, 404 F.3d 850,

862 (4th Cir.) (“Booker did nothing to alter the rule that judges

cannot depart below a statutorily provided minimum sentence.”),

cert. denied, 126 S. Ct. 288 (2005). This is consistent with the

holdings in unpublished opinions by our court. See United States

v. Johnson, 156 F.App’x 640, 642 (5th Cir. 2005) (unpublished)

(“Nothing in Booker allows a district court to impose a sentence

below the statutory minimum.”), cert. denied, 126 S. Ct. 1643

(2006); United States v. Sepulveda-Rodriguez, 157 F.App’x 765, 766

(5th Cir. 2005) (unpublished) (rejecting, under plain-error review,

the contention that Booker rendered statutory-minimum sentences

discretionary because “Booker is silent as to those issues” and no

supporting authority was cited); United States v. Guajardo-Guzman,

149 F.App’x 274, 275 (5th Cir. 2005) (holding, under plain-error

review, defendant could not show post-Booker sentence would

significantly differ from pre-Booker sentence on remand, because
7

“he was sentenced to the mandatory minimum sentence dictated by

statute”).

Further, this proposition has been at least indirectly

recognized in a recent published opinion by our court. See United

States v. Farias, 469 F.3d 393 (5th Cir. 2006). Noting the

defendant did not contend otherwise, our court stated: “a

judge[’s] ... discretion under Booker to sentence below a mandatory

minimum [is] a proposition this and other courts have rejected”,

id. at 401 (footnote omitted); and, “whatever result the Guidelines

yield, the sentence cannot be less than the mandatory minimum”, id.

(emphasis added).

As quoted supra, the statutory-minimum sentence for Krumnow’s

firearm-possession conviction was a 60-month consecutive sentence.

18 U.S.C. §§ 924(c)(1)(A)(i), (c)(1)(D)(ii); see also United States

v. Correa-Ventura, 6 F.3d 1070, 1084-85 (5th Cir. 1993) (“[section

924(c)’s] mandatory sentence run[s] consecutively rather than

concurrently with that of the predicate crime”). The Government

did not make a § 3553(e) “substantial-assistance” motion. Further,

§ 3553(f)’s “safety valve” is not applicable to the drug-possession

offense here, 21 U.S.C. § 860, as the exception is explicitly

limited to the following offenses: 21 U.S.C. §§ 841, 844, 846,

960, and 963. 18 U.S.C. § 3553(f); see also Phillips, 382 F.3d at

499 (holding § 860 offenses ineligible for § 3553(f) “safety valve”
8

treatment). Krumnow does not contend otherwise. Therefore, the

district court erred by imposing Krumnow’s drug-possession and

firearm-possession sentences to run concurrently. 

Our court’s recent decision in United States v. James, 468

F.3d 245 (5th Cir. 2006), “h[e]ld that ... § 3553(e) applies to the

mandatory minimum sentences of ... § 924(c)(1), and that a

Government motion made pursuant to section 3553(e), requesting that

the district court depart from [§ 924(c)(1)’s] statutory minimums

... , gives the ... court ... authority to depart from th[ose] ...

minimums”. Id. at 248. Our above holding is entirely consistent

with this holding in James. 

In reaching its holding, James discussed the general rule

that, upon the Government’s filing a § 3553(e) “substantialassistance” motion, a district court has discretion to depart below

§ 924(c)(1)’s mandatory minimum sentence; but, it then stated:

“There is ... no statutory provision or jurisprudential holding

that would prohibit a court from departing below the section

924(c)(1) minimum if the court felt that such sentence was

appropriate”. Id. at 247-48. This statement, which is arguably

inconsistent with our holding and the above-quoted statements in

Farias, is simply either subsumed in the analysis for why the §

924(c) sentence may be reduced if the Government requests it or is

dictum. Restated, this statement in James is not its holding.
9

Farias does not cite James, rendered only approximately two

weeks earlier. Of course, if the statement in James is dictum, our

well-established rule that one panel cannot overrule a prior panel

decision absent an intervening change in law is not implicated.

III.

For the foregoing reasons, Krumnow’s conviction is AFFIRMED;

his sentence is VACATED and this matter is REMANDED for

resentencing.

CONVICTION AFFIRMED; SENTENCE VACATED; 

REMANDED FOR RESENTENCING
*The comments that I make in this special concurrence are

solely my own opinions and not the opinions or conclusions of any

other panel member. I am in no way suggesting that the district

judge is bound by this concurrence or that a non-Guidelines

sentence will automatically be upheld on appeal.

10

DeMOSS, Circuit Judge, specially concurring:

I concur fully in all of the holdings of Judge Barksdale’s opinion, however I write

separately to comment on what I believe the district judge was trying to achieve at

sentencing, and to suggest an alternative approach for re-sentencing. 

From my reading of the record and the comments made at sentencing, I am

persuaded that the district judge felt that a combined sentence of ten years was not

appropriate for this defendant, which is why he ordered the two five-year sentences to

run concurrent. If I am correct in this assumption, the district court may be able to

achieve a similar result by issuing a non-Guideline sentence for the drug-possession

charge either at or above the statutory minimum of one year (but below the low-end of

the Guideline range), and then run the mandatory five-year sentence for the gunpossession conviction consecutively. Of course at re-sentencing a full and proper

explanation must be given for any non-Guideline sentence to justify its reasonableness. 

The combined sentence that Krumnow could then receive under the applicable statutes

could be as little as six years, which would be closer to what I believe the district judge

felt was an appropriate sentence for this defendant.

*