### The Honorable PAUL A. MAGNUSON, Chief Judge, United States * 

### District Court for the District of Minnesota, sitting by designation. The Honorable Charles R. Wolle, Chief Judge, United States 1 

### District Court for the Southern District of Iowa. No. 96-2143
United States of America, * * Appellee, * * v. * Appeal from the United States * District Court for the Michael Joseph Schaffer, * Southern District of Iowa * Appellant. *

Submitted: November 19, 1996 Filed: April 1, 1997
Before FAGG and HANSEN, Circuit Judges, and MAGNUSON, District Judge. *
MAGNUSON, District Judge.
Michael Joseph Schaffer challenges t he thirty-month sentence imposed by the district court after he pled guilty to using or carrying a firearm 1 dur ing or in relation to a drug trafficking crime, in violation of 1 8 U.S.C. § 924(c)(1). We affirm.

I.

Michael Schaffer was arrested on drug charges during the executio n of a se arch warrant at his residence on November 9, 1995. Within hour s after his arrest, Schaffer waived his Miranda rights

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and agree d to cooperate with authorities. He told police about hi s involv ement in a conspiracy to distribute cocaine base (crack cocaine) , named his suppliers, and directed police to an undiscovered shotgun

. Schaffer also admitte d that he delivered the shotgun to a co-defendant in exchange for crack cocaine, thereby using and carrying a firearm during an d in relation to a drug trafficking crime. Schaffer entered into a plea agreement with the government shortl y after his arrest. He agreed to plead guilty to Count 2 of the Indictment, Using and Carrying a Firearm During and in Relation to a Drug Trafficking Crime, in violation of 18 U.S.C. § 924(c)(1), and Count 4 of th e Indictment, Possession with Intent to Distribute Cocaine Base, in violatio n of 21 U.S.C. § 841(a) (1). In exchange, the government agreed to move for
a down ward departure of twenty percent based on Schaffer’s substantia l assistance to authorities pursuant to 18 U.S.C. § 3553(e) and § 5K1.1 of the Un ited States Sentencing Guidelines (the Guidelines). The ple a agreem ent also specifically provided that Schaffer’s sentence was to b e determined under traditional Guidelines criteria.

Schaffer’ s Presentence Investigation Report determined that without a downward departure, the appropriate Guidelines sentencing range was 121 to 151 months for the drug count in addition to a consecutive 60-mont h sentence for the gun count. The calculation of Schaffer’s sentencing rang e included a three-level reduction for acceptance of responsibility permitte d by § 3E1.1 of the Guidelines. At sentencing, Schaffer argued that th e statutory mandatory minimum sentence for a § 924(c)(1) violation should no t be considered by the district court if the court granted the government’s motion for downward departure under 18 U.S.C. § 3553(e), which permits the court to impose a sentence below a statutory minimum. Rather, Schaffe r contended, the court should

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disregard the statutory sentence, apply a two-level enhancement to the dru g count for possession of a firearm, and sentence in accordance with U.S.S.G

. § 2D1.1(b)(1).

The district court disagreed and instead determined that th e mandat ory minimum sentence of sixty months was the appropriate startin g point for any downward departure as to the § 924(c)(1) count. The court granted the government’s motion for downward dep arture and imposed a total sente nce of ninety-one months: sixty-one months on the drug count an d thirty months on the gun count. This sentence represented a reduction on each count of approximately fifty percent rather than the twenty percent reduction requested by the government.

Sc haffer also asked the district court to reduce his § 924(c)(1 ) sentence based on acceptance of responsibility, either as an adjustment or
as a depar ture for “extraordinary” reasons. The court found that th e Senten cing Commission had already accounted for the type of earl y assist ance that Schaffer provided to the government via the three-leve l acceptance of responsibility reduction that Schaffer received under § 3E1. 1 of the Guidelines. Schaffer appeals his sentence on the § 924(c)(1) count

.

II. A.

Sc haffer argues first that the district court erred in using th e sixty-month mandatory minimum sentence prescribe d in 18 U.S.C. § 924(c)(1)
as t he starting point for its downward departure based on Schaffer’ s substantial assistance. The proper approach, Schaffer contends, would have been to increase his drug sentence by

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two levels for possession of a firearm pursuant § 2D1.1(b)(1) instead of imposing the consecutive sixty-month sentence. We review de novo a district court’s appl ication of the Guidelines and the relevant statutes. See United States v. Polanco , 53 F.3d 893, 895 (8th Cir. 1995), cert
. denied , 116 S. Ct. 2555 (1996); United States v. Hensley , 36 F.3d 39, 41 (8th Cir. 1994).
Congress provided district courts wi th limited authority to sentence
a c ooperating defendant below a mandatory minimum sentence in 18 U.S.C

. § 3553(e), which provides that Upo n motion of the Government, the court shall have th e aut hority to impose a sentence below a level established b y sta tute as minimum sentence so as to reflect a defendant’ s substantial assistance in the investigation or prosecution of ano ther person who has committed an offense. Such sentenc e shall be imposed in accordance with the guidelines and policy statements issued by the Sentencing Commission . . . .
18 U .S.C. § 3553(e). We have recognized implicitly that § 924(c)(1 ) mandates the type of minimum sentence that a district court may decrease following a government’s § 3553(e) motion for su bstantial assistance. Cf. United States v. Carnes , 945 F.2d 1013, 1014 (8t h Cir. 1991) (finding that dis trict court understood its authority to impose sentence of less tha n five years on § 924(c)(1) conviction but chose n ot to do so). As Schaffer acknowledges, the district court would have been unable to depart downward
on the § 924(c)(1) conviction if the government had not filed its § 3553(e ) motion. See United S tates v. Rodriguez-Morales , 958 F.2d 1441, 1447 (8th Cir.), cert. denied , 506 U.S. 940 (1992). On ce a district court grants a § 3553(e) motion, thus permittin g sentenc ing below the statutory minimum, it must impose a sentence “i n accord ance with the guidelines and policy statements issued by th e Sentencing Commission.” 18 U.S.C. § 3553(e). The

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Guidelines do not establish a base offense level for § 924(c)(1) or provid e
a method by which a Guideline sentence for § 924(c)(1) could be calculated ; rat her, the Guidelines direct courts to sentence in accordance with th e statute. See U.S.S.G. § 2K2.4(a). The resultin g course of action for the district court is cir cular; § 3553(e) refers the court to the Guidelines, which in turn refer it back to the statutory minimum sentence. Schaffer argues that by departing downward from the mandatory minimum sentence of sixty months instead of a sentence calculated pursuant to the Guidelines, the district court ignored the portion of § 3553(e), quoted above, tha t requir es courts to rely on the Guidelines when calculating reduce d sentences. To disregard the second sentence of § 3553(e), Schaffe r reasons, would violate the long-established canon of statutory constructio n that all sections of a statute be given effect. See In re Windsor on the River Assocs. , 7 F.3d 127, 130 (8th Cir. 1993). Schaffe r maintains that the only way to give meaning to the entir e text of § 3553(e) is to determine the initial sentence on both counts of his conviction as if the mandatory minimum sente nce did not exist and then reduce that initial s entence in accordance with all Guideline principles. Because there is no specific offense level for a § 924(c)(1) conviction, § 2X5.1 of the Guidelines instructs the district court to apply the most analogous offense gui deline. U.S.S.G. § 2X5.1. Schaffer believes that a two -level enhancement for possession of a firearm, listed as a specifi c offense characteristic of a drug trafficking cri me under § 2D1.1(b)(1), is the Guideline offense most analogous to using or carrying a firearm during
or in relation to a drug trafficking crime. If we were to adopt Schaffer’ s reasoning, his total offense level on the drug count would increase from 31 to 33, the 60-month consecutive sentence would be eliminated, and his sentencing range would decrease from 181-211 (121-151 plus an additional 60 months)

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to 1 51-188. Schaffer asserts that such an approach would calculate hi s sentenc e in accordance with the Guidelines, as the second sentence o f § 3553(e) requires.
Whether the mandatory minimum sentence required by § 924(c)(1) is the proper starting point for a downward departure made pursuant to § 3553(e) is a question of first impression in this circuit. The only other court of appeals to address the issue as it pertains s pecifically to § 924(c)(1) found that the minimum sentence is the appropriate point of departure. Se e United States v. Apon te , 36 F.3d 1050, 1052 (11th Cir. 1994). In Aponte , the Eleventh Circuit rejected without discussion the defendant’s argument that the district court should have equated his § 924(c)(1) conviction wit h the unlawful receipt, possession, or transportation of firearms, U.S.S.G. § 2K2.1, and departed downward from a base offen se level of 12 as provided by § 2K2.1(a)(7) of the Guidelines. See Aponte , 36 F.3d at 1052. Th e court approved of the district court’s starting point of base offense leve l 24, which correlated to a sixty-month sentence based on the defendant’ s criminal history category of I. See id. at 1051.

We agree with the Eleventh Circuit that the mandatory minimu m sentence of § 924(c)(1) is the proper departure point following a § 3553(e ) motion based on subst antial assistance. Section 3553(e) directs district court s to refer to the Guidelines when departing downward because of a defen dant’s substantial assistance. The Guidelines that pertain t o § 924(c)(1) refer back to the statute, which requires a sixty-month minimu m sentence. U.S.S.G. § 2K2.4(a). The most logical conclusion to draw from these circular references is that the mandatory minimum sentence becomes the Guide line sentence for purposes of § 3553(e). Cf. United States v

. Hayes , 5 F.3d 292, 295 (7th Cir. 1993) (finding that

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sentencing court correctly departed downward from mandatory minimu m sentence imposed by 2 1 U.S.C. § 841(a)(1) rather than the lower Guideline range that would have applied absent statutory minimum; citing U.S.S.G

. § 5G1. 1(b), which provides that “[w]here a statutorily required minimu m sentence is greater than the maximum of the applicable guideline range, th e statutorily required minimum sentence shall be the guideline sentence”). The district court co rrectly applied the Guidelines by departing downward from the sixty-month mandatory minimum sentence in sentencing Schaffer for his § 924(c)(1) conviction.

Mo reover, the conduct that resulted in Schaffer’s conviction unde r § 924(c)(1), using or carrying a firearm during or in relation to a drug traffi cking crime, is significantly different and more serious than th e conduc t required for a two-level enhancement under § 2D1.1(b)(1), mer e possession of a firearm. See Bailey v. United States , 116 S. Ct. 501, 506 , 509 (1995) (holding that conviction for “use” of firearm under § 924(c)(1) requ ires “active employment;” § 924 cannot be used to penalize drug

trafficking offenders for firearm possession). Schaffer’s approach would permit Schaffer to be sentenced for a much lesser offense than the one to which he pled guilty. Such a result would fly in the face of the strict penalty t hat Congress has mandated for those who use or carry a firear m while trafficking in drugs.

B.

Schaffer also argues that the district court should have furthe r reduced his § 924(c)( 1) sentence for acceptance of responsibility, either
as an adjustment or a departure. Schaffer correctly states that if a statute requires a consecutive sentence, as § 924(c)(1) does, that sentenc e must be determined and imposed

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independently of the sentences on the other counts. U.S.S.G. § 5G1.2(a). Con sequently, Schaffer contends, the acceptance of responsibilit y adjustment provided in § 3E1.1 of the Guidelines , which the district court applied t o the drug count at sentencing, should also be applie d independently to the gun count. The government counters by arguing that becaus e the § 924(c)(1) sentence is calculated independently and i s statutorily mandated, it is not available for any Guideline adjustments.

The Guidelines provide that the adjustments set forth in Chapte r Thr ee, including acceptance of responsibility, are to be applied to th e base offense level. See U.S.S.G. § 1B1.4(c)-(e). The implication fro m this Guideline instruction is that adjustments are not to be applied t o
man datory statutory sentences. See United States v. Rodriguez , 64 F.3 d 638, 641 (11th Cir. 1995) (finding that Chapter Three adjustments are no longer relevant once a statutory maximum sentence becomes the Guidelin e sentence). The district court was correct not to adjust Schaffer’ s § 924(c)(1) conviction for acceptance of responsibility. Alternatively, Schaffer maintains that the district court shoul d have departed downward fur ther on the § 924(c)(1) count based on extraordinary acceptan ce of responsibility. He contends that to disallow such a departure again ignores the second sentence of § 3553(e) by prohibiting th e appli cation of the Guidelines to his sentence and cites to an Elevent h Circuit case that purports to authorize such a departure. Rodriguez , 64 F.3d at 643(holding t hat district court has discretion to depart downward for ac ceptance of responsibility when § 5G1.1(a) renders § 3E1. 1 ineffectual in reducing defendant’s actual sentence).
We recently held that “a motion by the government under § 3553( e) for substantial assistance [is]‘the only authority for

### In 1994, Congress enacted 18 U.S.C. § 3553(f), the safety 2 

### valve provision, which allows district courts to depart from the statutory minimum sentence under specified circumstances. Section § 3553(f) applies only to certain offenses under the Controlled Substances Act or the Controlled Substances Import and Export Act and does not pertain to violations of 18 U.S.C. § 924(c)(1). -9- [a] di strict court to depart below the statutorily mandated minimu m sentence.’” United States v. Rabins , 63 F.3d 721 (8th Cir. 19 95) (quoting 2 United States v. Rodr iguez-Morales , 958 F.2d 1441, 1444 (8th Cir.), cert. denied , 50 6 U.S. 940 (1992)), cert. denied sub nom. Johnson v. Unite d States , 1 16 S. Ct. 1031 (1996). Furthermore, the Guidelines do no t ord inarily recognize acceptance of responsibility as a reason fo r depart ure, U.S.S.G. § 5K, thus negating Schaffer’s argument that w e disregarded the secon d sentence of § 3553(e) in deciding Rabins . Section § 3553(e) does not authorize district courts to depart below the mandatory minimum for any reason other than substantial as sistance. Schaffer is not entitled to any fu rther reduction for acceptance of responsibility. As a final note, we are aware of Schaffer’s contention that th e district court did not rule on his motion for further acceptance o f responsibility at sentencing, thus requiring us to remand for resentencing

. We disagree. A close examination of the sentencing transcript reveals tha t the district court did in fact consider and rule upon Schaffer’s request for departure based on extraordinary acceptance of responsibility

. Throug hout the sentencing transcript, the district court often used th e words “substantial assistance” interchangeably with “acceptance o f respon sibility.” The district court found that Schaffer’s earl y cooperation, while substantially assisting the g overnment, did not warrant additional departure because “the guidelines commission has already taken into account the early assistance that [Schaffer] provided in giving him a three level--in considering that he would

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be eligible for a three-level reduction for substantial assistance which he received.” (Tr. at 187-88.) The district court correctly calculated Schaffer’s sentence in every respect.

For the reasons stated, the judgment of the district court i s affirmed.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT