Tenth Affirms that Cooperation is the Only Basis for Sentences Below Mandatory Minimum

United States v. A.B., ___F.3d___, 2008 WL 2498026 (10th Cir. 2008)
Government moved for a sentence below the mandatory minimums for drugs and a gun in light of Defendant’s cooperation. COA ruled that, in keeping with its precedent in Campbell, which remains unaffected by Booker, a sentencing court can sentence below the mandatory minimum only for cooperation, and cannot consider other mitigating facts that might support either a downward departure or presumably a variance, to further decrease a sentence below that statutory minimum sentence. The COA left open Defendant’s alternative argument–can the sentencing court “time” its consideration of mitigating facts to, for example, first vary the sentence downward to the mandatory minimum threshold, and then use the cooperation facts to move the sentence further down below the mandatory minimum sentence? The COA found that the district court did, silently and in its own mind rather than explicitly and on the record, consider Defendant’s mitigating facts before it engaged in the cooperation departure.