United States of America, Plaintiff-appellee, v. James Banh, Defendant-appellant, 33 F.3d 60 (9th Cir. 1994)

MEMORANDUM^** 

James Banh appeals his 60-month sentence imposed following entry of a guilty plea to two counts of possession with intent to distribute cocaine in violation of 21 U.S.C. § 841(a) (1).

Pursuant to Anders v. California, 386 U.S. 738 (1967), Banh's counsel submitted a brief identifying two possible issues for review: whether the district court erred by (1) declining to depart downward based on sentence entrapment and (2) failing to depart sua sponte on the basis of youthful lack of guidance. Counsel also filed a motion to withdraw as counsel of record. We have jurisdiction under 28 U.S.C. § 1291. We review de novo, see United States v Conkins, 9 F.3d 1377, 1384 (9th Cir. 1993) and affirm Banh's sentence.

Banh pleaded guilty to possession of over three kilograms of cocaine, a quantity that subjected him to a minimum sentence of 60 months. See 21 U.S.C. § 841(b) (1) (B) (ii). The Guidelines range was 57 to 71 months. The district court imposed the minimum mandatory sentence.

" [W]hen a statute requires a sentence different than that set by the guidelines, the statute controls." Conkins, 9 F.3d at 1387 (citation omitted); see U.S.S.G. Sec. 5G1.1. Where, as here, the government does not request a downward departure based on the defendant's assistance to the authorities, the district court is "presumptively without power to circumvent the mandatory minimum." United States v. De La Fuente, 8 F.3d 1333, 1340 (9th Cir. 1993) (quoting United States v. Vilchez, 967 F.2d 1351, 1355 (9th Cir. 1992)). Absent a motion by the government, departure below the statutory minimum is appropriate only if the government's failure to request a departure constitutes a breach of the plea agreement, or is otherwise unconstitutionally motivated. De La Fuente, 8 F.3d at 1340; Vilchez, 967 F.2d at 1355.

Here, the plea agreement did not obligate the government to request a departure in exchange for Banh's cooperation, and nothing in the record indicates that the government's failure to do so was unconstitutionally motivated. Consequently, even if lack of youthful guidance or sentence entrapment constitutes a permissible basis to depart below the Guideline range in this case, the sentencing court lacked authority to depart below the statutory 60-month minimum. See Conkins, 9 F.3d at 1387; Vilchez, 967 F.2d at 1356-57.

The motion of counsel to withdraw is GRANTED and the sentence is AFFIRMED.