                                    United States Court of Appeals,

                                              Fifth Circuit.

                                             No. 95-31247

                                          Summary Calendar.

                         UNITED STATES of America, Plaintiff-Appellee,

                                                    v.

                        Terrance Merrill FLANAGAN, Defendant-Appellant.

                                             June 19, 1996.

Appeal from the United States District Court for the Western District of Louisiana.

Before GARWOOD, WIENER and PARKER, Circuit Judges.

        PER CURIAM:

        Defendant-Appellant Terrance Merrill Flanagan appeals the sentence imposed by the district

court following Flanagan's conviction on a plea of guilty for possession with intent to distribute

cocaine base, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A). In challenging his sentence,

Flanagan asserts error by the district court in (1) basing his sentence on penalties for cocaine base

instead of powder cocaine and in relation thereto in refusing to consider scientific testimony from

another district court case in another circuit; and (2) refusing to consider Flanagan's eligibility for the

"safety valve" provision of U.S.S.G. § 5C1.2 which permits departure below the statutory minimum

sentence. Although, based on binding precedent, we reject Flanagan's contentions regarding the

cocaine base/powder cocaine dichotomy, we vacate his sentence and remand for resentencing in light

of § 5C1.2, which the district court mistakenly believed it was precluded from applying, due to the

mandatory minimum sentence requirements of § 841(b)(1)(A).

                                                     I

                                    FACTS AND PROCEEDINGS

        After initially pleading "not guilty," Terrance Merrill Flanagan entered into a plea agreement

in which he pleaded guilty to Count XXI of a 23-count indictment, in which he and 10 co-defendants

were charged with various cocaine-distribution offenses. In his plea agreement's factual recitation,
Flanagan admitted that he and Wesley Harris transported 425 grams of crack cocaine from Houston

to Calcasieu Parish, Louisiana.

        The Presentence Report (PSR) contains the following recommendations: Flanagan's base

offense level is 34 because he was responsible for 425 grams of crack cocaine. He is entitled to a

two-level reduction for acceptance of responsibility. The result of Flanagan's total offense level (32)

and his criminal history score (Category I; Flanagan had no criminal history points) produces a

guideline sentencing range of 121-151 months. The statute under which he was convicted required

a minimum prison term of 10 years. See 21 U.S.C. § 841(b)(1)(A).

        Flanagan objected, contending that he was entitled to a third point for acceptance of

responsibility. The Probation Office did not oppose this objection and observed that the additional

one-point reduction lowered his total offense level to 31 and his guideline range to 108-135 months.

        Flanagan also insisted that he "should be sentenced based on the penalty for powder cocaine,

rather than the penalty for crack cocaine." By motion he urged the court to adopt the sentencing

hearing transcript of defendant Jerry Jones ("the Jones transcript") from United States v. Davis, 864

F.Supp. 1303 (N.D.Ga.1994), in which four scient ific experts purportedly testified that cocaine

powder and cocaine base are chemically indistinguishable. Flanagan maintains that the Jones

transcript was admissible under Fed.R.Evid. 201(b)(2), in that the accuracy of the testimony therein

"cannot be reasonably questioned." He argued that, under the rule of lenity, the penalties for cocaine

powder should be applied; they would produce a total offense level of only 21 and a guideline range

of only 37-46 months.

        Recognizing that the statutory mandatory minimum sentence was 10 years, Flanagan also

urged the court to depart downward under U.S.S.G. § 5C1.2 ("safety valve") or U.S.S.G. § 5K2.0.

He contended that he met all five criteria set forth in § 5C1.2.

        Without giving an explanation the district court denied Flanagan's motion to adopt the Jones

transcript, but permitted him to "proffer the transcript at sentencing in anticipation of the appeal of

this matter." At the sentencing hearing two days later, Flanagan proffered the testimony from the

Jones transcript, but the court refused to consider it, stating:
        [L]et me just say for the record, in case this case is taken up on appeal, I want the court's
        position known ... that if they want to equalize it, that if fine. We will adopt the crack cocaine
        standard rather than the powder cocaine standard.

        The court did not address Flanagan's contention regarding the chemical equivalency of the

two types of cocaine. Additionally, the court denied Flanagan's request for "the lowest possible

sentence available," stating, "I don't have that freedom," then sentenced him to 120 months in prison

and a five-year supervised release term. Flanagan timely filed a notice of appeal.

                                                   II

                                              ANALYSIS

A. Penalties for powder cocaine and cocaine base and district court's denial of motion to introduce
       Jones transcript

        Acknowledging that we have already rejected Equal Protection challenges to the disparity

in penalties for offenses involving powder and crack cocaine, Flanagan contends that his argument

concerning the chemical congruity of the two types of cocaine presents a different issue. He

maintains that the expert testimony reflected by the Jones transcript shows that "cocaine" and

"cocaine base" are interchangeable. He argues that because this identity creates an ambiguity in the

law, the rule of lenity requires the court to apply powder cocaine's lesser penalties. Flanagan insists

that the Jones transcript should have been admitted under Fed.R.Evid. 804(b)(1), as an exception to

the hearsay rule, because the declarants were unavailable as witnesses and hearsay evidence is

admissible during sentencing proceedings.

        After an evidentiary hearing "at which four experts were qualified and testified," the Davis

court found that cocaine base was synonymous with cocaine within the scientific community and that

there "was also unanimous agreement among all four experts that the term "crack' as it relates to

cocaine substances does not have a fixed meaning in the scientific community." Davis, 864 F.Supp.

at 1304-05 (footnote omitted). That court concluded, as a matter of law, that it must "apply the

lesser statutory penalties for cocaine rather than hundred-fold greater penalties for the possession of

cocaine base," because the ambiguity "about the reach o f a criminal statute or the penalties to be

imposed" requires the application of the rule of lenity. Id. at 1305-06 (citing Bifulco v. United States,

447 U.S. 381, 387, 100 S.Ct. 2247, 2252, 65 L.Ed.2d 205 (1980)). Thus,
       based on the total unanimity of opinion of the four experts, ... there is unquestioned ambiguity
       on the face of the statute, and, unless it could be said that the legislative history or public
       policy concerns alter the outcome, the rule of lenity must be applied.

Davis, 864 F.Supp. at 1306.

       We have not yet published an opinion addressing the contention, based explicitly on either the

Davis testimony or other expert scientific testimony, that—because the chemicals are chemically

indistinguishable1—the penalty provisions for cocaine base and powder cocaine are ambiguous. We

have, however, rejected such challenges in several unpublished opinions. See e.g., United States v.

Lewis, No. 95-60131, at 1-2, 70 F.3d 1268 (5th Cir. Oct. 19, 1995) (unpublished); United States v.

Lampkin, No. 95-30131, at 2-4, 68 F.3d 467 (5th Cir. Aug. 25, 1995) (unpublished); United States

v. Martin, No. 95-30335, at 4 & n. 6, 79 F.3d 1143 (5th Cir. Feb. 5, 1996) (unpublished); United

States v. Thomas, No. 95-30946, at 5-6, --- F.3d ---- (5th Cir. May 1, 1996) (unpublished). Lewis

and Lampkin were issued before January 1, 1996, and are precedent. See 5th Cir. Rule 47.5.3. As

these opinions constitute binding precedent, they foreclose Flanagan's argument based on Davis, so

we need not and therefore do not address his contention that the district court should have admitted

the Jones transcript.

B. Refusal to Depart Downward Under U.S.S.G. § 5C1.2

       Flanagan contends that he was entitled to a downward departure from the mandatory

minimum sentence because he meets all five "safety valve" criteria set forth in U.S.S.G. § 5C1.2, and

observes that the district court failed to make factual findings regarding the application of § 5C1.2.

Although he does not explain how he met each of the five criteria, he argues that "it is not necessary"

to make such arguments now because he raises the issue only to "preserve its viability on remand to

the Trial Court."2 Flanagan has not abandoned his § 5C1.2 claim, but he has abandoned his claim that

   1
    We have stated that, "when cocaine is changed into cocaine base, it becomes a different
chemical substance." United States v. Thomas, 932 F.2d 1085, 1090 (5th Cir.1991), cert. denied,
502 U.S. 1038, 112 S.Ct. 887, 116 L.Ed.2d 791 (1992). It cannot be determined from reading
the Thomas opinion whether scientific testimony was introduced or proffered, however. See id.
   2
     Although this statement suggests that Flanagan is effectively abandoning this contention
because he is not adequately briefing it on appeal, see Yohey, 985 F.2d at 225, the statement also
reflects Flanagan's awareness that we cannot make the required factual findings for the first time
on appeal anyway.
he was entitled to a departure pursuant to § 5K2.0. See id.; Yohey v. Collins, 985 F.2d 222, 225

(5th Cir.1993).

         The government counters by urging that we lack jurisdiction to address the § 5C1.2 claim

unless Flanagan shows that the "district court violated some law or erro neously believed [it] was

without authority to depart downward." Flanagan did not orally renew his request for a § 5C1.2

reduction at his sentencing hearing. He did, though, raise the issue in his sentencing memorandum,

and that was sufficient to preserve the issue for appeal. We apply the "plain error" standard when a

defendant "fail[s] to object to the PSR or at the sentencing hearing." See United States v. McCaskey,

9 F.3d 368, 376 (5th Cir.1993) (emphasis added), cert. denied, --- U.S. ----, 114 S.Ct. 1565, 128

L.Ed.2d 211 (1994).

         "U.S.S.G. § 5C1.2 is a "safety valve' provision which allows qualified defendants to escape

the applicable statutory minimum sentence." United States v. Edwards, 65 F.3d 430, 433 (5th

Cir.1995) (citation omitted). A defendant convicted of an offense under 21 U.S.C. § 841 shall be

sentenced "in accordance with the applicable guidelines" without regard to any statutory minimum

sentence, if the court finds that he satisfies five criteria:

(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 ...;
        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.

See id.; § 5C1.2. We review a sentencing court's legal interpretation of the guidelines de novo.

United States v. Rodriguez, 60 F.3d 193, 195 (5th Cir.) (applying § 5C1.2), cert. denied, --- U.S. ----,

116 S.Ct. 542, 133 L.Ed.2d 446 (1995).
        Flanagan's guideline sentencing range was 108 to 135 months. There is no indication in the

record that Flanagan fails to meet any of the five § 5C1.2 criteria.3 Indeed, if he meets all five, the

court had authority to reduce Flanagan's sentence to 108 months.

        We "uphold a sentence unless it is imposed in violation of law, results from a misapplication

of the guidelines, or is an unreasonable departure from the applicable guideline range." United States

v. Akin, 62 F.3d 700, 701 (5th Cir.1995). Although we lack jurisdiction to review a defendant's

challenge to his sentence based on mere dissatisfaction with the court's refusal to grant to a

downward departure, we may do so if the court's refusal was the result of a violation of law. United

States v. Burleson, 22 F.3d 93, 94-95 (5th Cir.), cert. denied, --- U.S. ----, 115 S.Ct. 283, 130

L.Ed.2d 199 (1994). A refusal to depart is a violation of law only if the court mistakenly assumed

that it lacked the authority to depart. Id. at 95; see 18 U.S.C. § 3742(e).

       Here, the district court noted that Flanagan's involvement was "substantial,"4 but then stated:

       [I]f I had any freedom in the matter, I might be inclined [to depart downward] because of
       [Flanagan's] youth and all, not to sentence him to that much time, but ... I don't have that
       freedom. I have got to be bound by the law. The law says that the minimum is hundred and
       twenty months.

This language confirms that the court did not consider the criteria listed in § 5C1.2, and mistakenly

believed that it was bound by the mandatory minimum sentence set forth in 21 U.S.C. § 841(b)(1)(A).

Clearly it was not; that is what the safety valve provision is all about. The court's mistaken belief

satisfies the Burleson test for a violation of law in refusing to depart downward for incorrectly

assuming that it lacked authority to do so. We therefore vacate Flanagan's sentence and remand for

resentencing following a full exploration of the applicability of § 5C1.2 to Flanagan's situation. See


   3
     Recently we held that, under § 5C1.2(5), the defendant has the affirmative burden of
providing the government with all information and evidence regarding the offense; the
government is not required to solicit such information. United States v. Flanagan, 80 F.3d 143,
146 (5th Cir.1996) (no apparent relationship to Defendant-Appellant herein). Flanagan may have
satisfied this criterion when he "acknowledged his participation and involvement in the instant
offense" in connection with accepting responsibility.
   4
    The Government notes this statement by the court, apparently implying that the court was
finding that Flanagan's "substantial" involvement disqualified him from receiving the § 5C1.2
reduction. See red brief at 16. However, none of the § 5C1.2 criteria addresses whether a
defendant had "substantial" or minimal involvement in the offense. See § 5C1.2.
United States v. Flanagan, 80 F.3d 143 (5th Cir.1996).

       VACATED and REMANDED for resentencing.
