The opinion of the court was delivered by: J. Leon Holmes United States District Judge
This case comes before the Court for resentencing following a successful appeal by Robert Leon Boyd of his first sentence. The net result of resentencing, in the view of the undersigned judge, will be a sentence that is sufficient, but not greater than necessary, to comply with the purposes stated in 18 U.S.C. § 3553(a)(2) but which, nevertheless, may be below the minimum mandated by 18 U.S.C. § 3553(f). I write, first, to explain how it has happened that Boyd will receive a sentence that may be below the lawful minimum and, secondly, to encourage the higher courts, when given the opportunity to do so, to address the issue of whether 18 U.S.C. § 3553(f), even after Booker,*fn1 requires a sentencing court to impose a guidelines sentence.
After police discovered 498.54 grams of methamphetamine in a vehicle that Boyd was driving, he was indicted and entered a plea of guilty to a charge of conspiracy to possess methamphetamine with intent to distribute in violation of 21 U.S.C. § 846. Pursuant to 21 U.S.C. § 841(b)(1)(A)(viii), the statutory minimum term of imprisonment for Boyd's offense was ten years. However, the parties stipulated that Boyd met all of the requirements for the safety valve provided in 18 U.S.C. § 3553(f). That subsection, which was enacted as part of the Violent Crimes Control Act of 1994, provides:
Notwithstanding any other provision of law, in the case of an offense under section 401, 404, or 406 of the Controlled Substances Act (21 U.S.C. 841, 844, 846) . . . the court shall impose a sentence pursuant to the guidelines promulgated by the United States Sentencing Commission under section 994 of title 28 without regard to any statutory minimum sentence, if the court finds at sentencing, after the Government has been afforded the opportunity to make a recommendation, that --
(1) the defendant does not have more than 1 criminal 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 participant 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, leader, 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 section 408 of the Controlled Substances Act; and
(5) not later than the time of the sentencing hearing, 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.
Boyd's total offense level under the guidelines was 29. He had no criminal history. The guidelines sentencing range therefore was 87-108 months.
At the sentencing hearing, Boyd requested a sentence of 60 months based on the factors under 18 U.S.C. § 3553(a). The Court*fn2 questioned whether 18 U.S.C. § 3553(f) permitted a sentence below the guidelines range inasmuch as that statute provides that the Court "shall impose a sentence pursuant to" the sentencing guidelines if the defendant qualifies for the safety valve. Boyd argued:
But if Booker is that the guidelines are no longer mandatory, then it would be that they're no longer mandatory. And, of course, this provision in the law was enacted, and I would have to check, but I feel pretty confident during the period of time in which the guidelines were deemed to be mandatory. And Booker changed that. So I would think that this would be a provision of the law that reading it in conjunction with Booker, the guideline range is no longer a mandatory range, but simply allows the Court to sentence below the statutory minimum that would otherwise apply in this particular case.
The government disagreed and argued that 18 U.S.C. § 3553(f) established the low end of the guidelines range as a mandatory minimum for defendants that qualify under that provision. This Court held that section 3553(f) mandated a guidelines sentence for defendants who qualify under that provision, that section 3553(f) has never been held unconstitutional, and that Booker was distinguishable because ...