United States v. Ronald Russ

97 F.3d 1457 NOTICE: Eighth Circuit Rule 28A(k) governs citation of unpublished opinions and provides that they are not precedent and generally should not be cited unless relevant to establishing the doctrines of res judicata, collateral estoppel, the law of the case, or if the opinion has persuasive value on a material issue and no published opinion would serve as well. UNITED STATES of America, Appellee, v. Ronald RUSS, Appellant. No. 96-1637. United States Court of Appeals, Eighth Circuit. Submitted Sept. 4, 1996. Decided Sept. 10, 1996. Before BEAM, HANSEN, and MORRIS SHEPPARD ARNOLD, Circuit Judges. PER CURIAM. — 1 — In this direct criminal appeal, Ronald Russ challenges his 63-month sentence of imprisonment imposed after he was convicted of possession with intent to distribute heroin in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B)(i). Russ contends the district court should have applied the safety-valve provision of U.S.S.G. § 5C1.2 and sentenced him to 36 months imprisonment so he could participate in a special Bureau of Prisons substance-abuse treatment program. — 2 — Although the Guidelines allow a sentencing court to disregard the statutory minimum for selected crimes and to sentence within the Guidelines range when a defendant meets certain criteria, section 5C1.2 does not apply here because the statutory minimum sentence--60 months--is lower than Russ's 63-to-78-month Guidelines range. See 18 U.S.C. § 3553(f); 21 U.S.C. § 841(b)(1)(B)(i) (five-year statutory minimum); U.S.S.G. § 5C1.2; United States v. Goodwin, 72 F.3d 88, 90 (8th Cir.1995) (safety-valve provision provides relief when mandatory minimum sentence is greater than applicable Guidelines sentence). Section 5C1.2 does not authorize departure below the Guidelines range. See United States v. Collins, 66 F.3d 984, 987-88 (8th Cir.1995) (per curiam) (reduced sentence must be within Guidelines range and departure below said range is not authorized). — 3 — Accordingly, we affirm the judgment of the district court.