[P U B L IS H ]

IN THE UNITED STATES COURT OF APPEALS

FILED

F O R THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

MAY 21, 2007

THOMAS K. KAHN

N o . 06-13527

CLERK

D . C. Docket No. 06-00004-CR-4

U N IT E D STATES OF AMERICA,

Plaintiff-Appellee,

versus

FRANCIS QUIRANTE,

Defendant-Appellant.

A p p e al from the United States District Court

fo r the Southern District of Georgia

(M a y 21, 2007)

B efo re CARNES, WILSON and HILL, Circuit Judges.

C A R N E S , Circuit Judge:

F r an c is Quirante's career in the merchant marine, culminating in his service

as a second officer aboard the M/V Ocean Glory, ended in a way that was anything

b u t glorious. Facing financial difficulties, Quirante became part of an effort to sm u g g le two kilograms of heroin into this country. He was caught and charged, an d he pleaded guilty to possessing with intent to distribute one or more kilograms o f heroin in violation of 21U.S.C. § 841(a)(1).

In return for his guilty plea the husband and father of three young girls h o p ed to receive a sentence of only 70 months. That would have been okay with th e government. The district court, however, citing the mandatory minimum sen ten ce set out in § 841(b)(1)(A), sentenced Quirante to 120 months im p riso n m en t. Quirante's appeal brings us issues involving the so-called safetyv a lv e mechanism, which operates in some circumstances to provide a guidelines sen ten ce even though a higher mandatory minimum sentence would otherwise be r eq u ir ed by statute. See 18U.S.C. § 3553(f); United States Sentencing Guidelines § 5C1.2 (Nov. 2006). The principal issue is whether application of the safety valve is mandatory or discretionary with the sentencing judge.

Under the sentencing guidelines this crime yields a base offense level of 32.

See U.S.S.G. § 2D1.1(c)(4). The pre-sentence investigation report recommended, an d neither the government nor Quirante objected to, the offense level being r ed u c ed by two levels because Quirante satisfied the five safety-valve criteria, see § 5C1.2, and by three levels because he accepted responsibility for his crime, see § 3 E 1 .1 (a), (b). Those adjustments brought the offense level down to 27. With no reco rd of prior criminal activity, Quirante had a criminal history score of I, and the P S R calculated his advisory guideline range sentence as between 70 and 87 months im p r is o n m e n t.

The PSR noted that pursuant to 21U.S.C. § 841(b)(1)(A) Quirante was su b ject to a ten-year mandatory minimum prison sentence. Nonetheless, it reco m m en d ed that the court should impose a sentence in accordance with the ad v iso ry guideline range, because Quirante met the safety-valve criteria in 18 U .S .C . § 3553(f) and U.S.S.G. § 5C1.2. There were no objections to the PSR by eith er side.

At the sentence hearing, the district court adopted as its own the factual s ta te m e n ts and guideline calculations in the PSR. The probation officer explained to the court at the hearing that Quirante: "was what we call safety valve eligible, w h ich removes the mandatory minimum. The Court is allowed to sentence below th at." The court responded by asking counsel for Quirante why it "shouldn't do th e minimum"--why it shouldn't sentence him to the mandatory minimum sen ten ce of ten years in prison. Counsel answered that Quirante met the five c rite ria for application of the safety valve, to which the court replied: "I know that h e meets [the safety valve]. But it is still discretionary." Q u iran te's counsel then argued that because of the factors set out in 18 U .S .C . § 3553(a), Quirante should be sentenced to the low end of the advisory g u id elin e range of 70 to 87 months. The probation officer agreed, and so did the a tto r n e y representing the government. In fact, the Assistant United States Attorney a ctu a lly made a plea for a low-end sentence, characterizing Quirante's crimes as "ab erratio n al behavior" stemming from a regrettable "life-changing bad decision" f o r which not only Quirante but also his family would suffer terribly. He explained th at the government had promised in the plea bargain to suggest a sentence at the lo w end of the guidelines range, and he was making good on that promise.

Everyone favored a low-end sentence for Quirante. Everyone except the d istrict court. After hearing from counsel and the probation officer, the court said th is : T h e defendant has given his statement. I have considered those facto rs of the so-called valve. But notwithstanding the reco m m en d atio n s of the government, the probation officer, and the d efen d an t's counsel, the Court sentences Francis Padillo Quirante to th e custody of the Bureau of Prisons for a term of 120 months. That is th e minimum sentence provided for under the guidelines.

The court explained its view that the 120-month sentence was warranted because Q u iran te was an officer of a vessel coming into the United States, and "the whole s etu p indicates . . . this is not the first time, likely not the first time that he has p articip ated ," and he did so readily. The court added: T h e amount of drugs involved and the potential to do damage in th e country--coming through our ports, he was a guest here--makes th e Court find that the safety valve should not be used in this instance.

W ith that said, the court sentenced Quirante to 120 months in prison and five years o f supervised release. The court noted that it was sure counsel for Quirante wished to object to what the court characterized as its "not accepting the safety valve reco m m en d atio n ." Counsel had no other objection.

It is clear to us that the district court believed that the safety valve provision is precatory not mandatory, a suggestion not a command. The district court th o u g h t that even if a defendant meets all of the requirements of the safety valve, as Quirante does, it is still discretionary with the court whether to give him the b en efit of the provision. The court said as much: "I know that he meets [the safety v alv e]. But it is still discretionary." And the court acted on its belief, sentencing Q u ir an te to the mandatory minimum sentence and labeling it as that: "the Court s en te n c es Francis Padillo Quirante to the custody of the Bureau of Prisons for a term of 120 months. That is the minimum sentence provided for under the g u id elin es." See U.S.S.G. § 5G1.1(b) ("Where a statutorily required minimum sen ten ce is greater than the maximum of the applicable guideline range, the statu to rily required minimum sentence shall be the guideline sentence.") Finally, in summing up defense counsel's objection, the court described what it was doing a s "not accepting the safety valve recommendation." The district court was mistaken. The safety valve provision mandated by 18 U .S .C . § 3553(f) and reflected in § 5C1.2 of the guidelines is not discretionary. Its p lain terms are plainly mandatory. The statutory language states that when a d efen d an t has been convicted of violating one of the specified statutes (as Quirante w as) and meets the five specified requirements (as Quirante did), "the court shall im p o s e a sentence pursuant to [the] guidelines . . . without regard to any statutory m in im u m sentence." The word "shall" does not convey discretion. It is not a leew ay word.

T h e Supreme Court has said that the term "shall" "normally creates an o b lig atio n impervious to judicial discretion." Lexecon Inc. v. Milberg Weiss B ersh ad Hynes & Lerach, 523 U.S. 26, 35, 118 S. Ct. 956, 962 (1998). That is, w h ere Congress uses the word "shall" to describe a party's obligation, Congress in ten d s to command rather than suggest. Anderson v. Yungkau, 329 U.S. 482, 4 8 5 , 67 S. Ct. 428, 430 (1947) ("The word `shall' is ordinarily `The language of co m m an d .'" (citation omitted)). The one commanded must follow the command.

Hicks v. Miranda, 422 U.S. 332, 352, 95 S. Ct. 2281, 2293 (1975) (Burger, C.J., co n cu rr in g ) ("It is well settled that `shall' means `must' . . . ."); see also Black's L a w Dictionary 1407 (8th ed. 2004) ("shall" defined as "Has a duty to; more b ro ad ly, is required to"). We follow the plain language of statutes. CBS Inc. v. P rim etim e 24 Joint Venture, 245 F.3d 1217, 1222 (11th Cir. 2001); Harris v. G a rn e r , 216 F.3d 970, 972, 976 (11th Cir. 2000) (en banc); Merritt v. Dillard Paper C o ., 120 F.3d 1181, 1186 (11th Cir. 1997).

Our decision on this issue is in line with those of the Second and Ninth C ir cu its . See United States v. Castillo, 460 F.3d 337, 353­54 (2d Cir. 2006); U n ited States v. Cardenas-Juarez, 469 F.3d 1331, 1332­33 (9th Cir. 2006). We a g r ee with them that when the requirements of § 3553(f) are met, if a defendant has a n advisory guidelines range lower than an otherwise applicable mandatory m in im u m , he must be given the benefit of the guidelines range in arriving at the ad v ice that the guidelines furnish for the sentencing decision.

Of course, since United States v. Booker, 543 U.S. 220, 125 S. Ct. 783 (2 0 0 5 ), the guidelines are only advisory, and a court compelled to disregard a m a n d a to r y minimum sentence in favor of the guidelines range at the adviced eterm in in g stage may vary upward to and even past the mandatory minimum p o in t after considering the § 3553(a) factors--so long as the final sentence is reaso n ab le. That is not, however, what the court did here. It did not correctly calcu late the guidelines range in light of the safety valve and then decide whether it sh o u ld vary up or down from there in light of § 3553(a). Instead, the court went w ith the mandatory minimum sentence notwithstanding § 3553(f)'s command that it be disregarded. Because a mandatory minimum sentence that must be d isreg ard ed under § 3553(f) is not a § 3553(a) factor, it cannot be considered in a n y part of the sentencing decision when the safety valve applies. The court erred in considering it.

We have no occasion to decide whether a sentence higher than the guidelines ran g e of 70 to 87 months would have been reasonable in this case after taking into acco u n t the § 3553(a) factors had there been no erroneous consideration of the m an d ato ry minimum sentence. That is not this case, at least not yet. Nor do we h av e any occasion to address, and we imply no view on, the issue we left open in U n ited States v. Lett,F.3d, 2007 WL 1028777, at *7 (11th Cir. Apr. 6, 2 0 0 7 ) , which is whether the safety valve applies where the defendant's advisory g u id elin e range is higher than the mandatory minimum sentence. That is not this c as e, either.

T h e sentence is VACATED and the case is REMANDED for further p ro ceed in g s consistent with this opinion.