United States v. Jackson C. O'dell, III , 320 F.3d 674 ( 2003 )

DAVID A. NELSON, Circuit Judge,

concurring.

I agree that the remand in O’Dell IV was limited rather than general. I write separately, however, to note that were it to be held that the remand was general rather than limited, it would make no difference to the result in this case. The motions that Mr. O’Dell filed in the district court on the day of his sentencing — pleadings styled “Defendant’s Motion for Downward Departure” and “Motion to Resen-tence Within Constitutional Protections of Fifth Amendment Due Process and Eighth Amendment Protections” — could not properly have been granted in any event.

As to the request for a downward departure, it is clear that O’Dell was subject to a mandatory minimum five-year sentence under 21 U.S.C. § 841(b)(1)(B). It is equally clear that he could not claim the benefit of any statutory exception to the five-year mandate. This being so, the district court had no power to depart from the requirements of the statute. See United States v. Burke, 237 F.3d 741, 745 (6th Cir.2001):

“In the absence of one of the exceptions set out in [18 U.S.C.] §§ 3553(e), (f), or such other similar exceptions as Congress may create, defendants may not be sentenced, by means of a downward departure, to a term of imprisonment or other punishment below the minimum imposed by the statute under which they were convicted.”

As to the constitutional claim, under the facts of this case, the notion that a five-year sentence was somehow unconstitutional strikes me as frivolous.