§710 Departures for Substantial Assistance
(U.S.S.G. §5K1)
2d Circuit reverses order requiring government to file substantial assistance motion. (197)(710) Defendant pleaded guilty to conspiring to entice a minor to engage in sexual conduct, an offense that carries a 15-year mandatory minimum. The district court found that the government acted in bad faith in refusing to make “substantial assistance” motion under 18 U.S.C. § 3553(e), and sentenced defendant to five years—below the mandatory minimum. The government appealed, noting that the plea agreement gave it “sole discretion” to file a substantial assistance motion, and that indeed the government made a motion under § 5K1.1, which reduced defendant’s sentence. The Second Circuit found that the government’s refusal to make a § 3553(e) motion was not in bad faith and remanded to a different district judge for resentencing. U.S. v. Trimm, __ F.3d __ (2d Cir. June 2, 2021) No. 20-2264.
11th Circuit upholds defendant’s waiver of appeal despite government’s objection that sentence was unreasonable. (710)(790)(850) Defendant pleaded guilty to wire fraud pursuant to a plea agreement that waived his right to appeal his sentence while preserving the parties’ right to make recommendations, and stating that the district court would ultimately decide what sentence to impose. At sentencing, the district court rejected the government’s substantial assistance motion, and departed upward to sentence above the guidelines range. The government objected that the sentence was substantively unreasonable. The Eleventh Circuit held that defendant’s appeal waiver applied regardless of the government’s objection at sentencing. U.S. v. Lewis, __ F.3d __ (11th Cir. June 26, 2019) No. 17-14571.
3rd Circuit bars reduction where original guideline range exceeded statutory maximum. (192)(710) Defendant had an offense level of 36, with a guideline range of 324-405 months. However, his offense had a statutory maximum of 240 months, so that became his guideline sentence. The government moved for a § 5K1.1 downward departure, asking for 25 months below the mandatory minimum, or 215 months. The district court granted the motion, and departed down by five levels (rather than using months) to an offense level of 31, and sentenced at the bottom of the new range, 188 months. After amendment 782 reduced drug offense levels by two, defendant sought a reduction under 18 U.S.C. § 3582(c)(2). The Third Circuit held defendant ineligible for a reduction. A guideline range entirely above a statutory maximum typically “drops out of the case,” so defendant’s sentence was not “based on” the guidelines. The decision to express the departure in terms of offense levels, rather than in months, was based on circuit precedent, not a reconsideration of the initial guidelines range. U.S. v. Rivera-Cruz, __ F.3d __ (3d Cir. Sept. 24, 2018) No. 17-3448.
4th Circuit permits government to decline § 5K1.1 reduction but enforce plea agreement. (710)(790) Defendant’s plea agreement provided that if he complied with the agreement and the government found he provided substantial assistance, the government would move for a substantial assistance departure. Prior to sentencing, the government informed defendant that it would not be seeking the § 5K1.1 reduction because it did not believe that defendant testified fully against his co-conspirators and instead downplayed their involvement. The government did not, however, seek to hold defendant in breach of the plea agreement, and it made other sentencing recommendations required by the agreement. The Fourth Circuit rejected defendant’s argument that the district court erred in allowing the government to decline to seek a § 5K1.1 substantial assistance reduction without demonstrating that he breached the plea agreement. The agreement gave the government sole discretion to decide whether defendant provided substantial assistance. Even if defendant’s conduct amounted to a breach of the plea agreement, the government had the right to waive that breach. It did not have to comply with procedures governing a breach in order to exercise its right not to move for a substantial assistance reduction. U.S. v. Under Seal, __ F.3d __ (4th Cir. Aug. 22, 2018) No. 17-4558.
(252)(710)(770) U.S. v. Malone, 809 F.3d 251 (5th Cir. 2015), superseded by U.S. v. Malone, __ F.3d __ (5th Cir. July 6, 2016) No. 14-31426.
5th Circuit affirms §5K1.1 departure despite consideration of non-assistance factors. (710) Defendants argued that the district court improperly considered non-assistance-related factors in reducing the extent of their §5K1.1 departures. See U.S. v. Desselle, 450 F.3d 179 (5th Cir. 2006) (holding that extent of §5K1.1 or §3553(e) departure must be based solely on assistance-related concerns). The government argued that Desselle only barred a court from considering non-assistance-related factors when increasing the extent of a §5K1.1 departure. The Fifth Circuit disagreed with the government’s interpretation, but found that any error was harmless. The district court mixed steps two and three of the sentencing framework; rather than determining the extent of defendants’ §5K1.1 departures and then considering whether their overall sentences required adjustment in light of the §3553(a) factors, it jumped ahead and adjusted the §5K1.1 departures themselves. This was error, but it was limited to “how the district court’s analysis was sequenced.” The panel was confident that if it remanded, the result would be the same – the district court would simply grant defendants’ larger §5K1.1 departures and then adjust their overall sentences downward in light of the §3553(a) factors. U.S. v. Malone, __ F.3d __ (5th Cir. July 6, 2016) No. 14-31426, superseding and replacing U.S. v. Malone, 809 F.3d 251 (8th Cir. 2015).
6th Circuit limits reduction under retroactive amendment to substantial assistance. (192)(710) Defendant pled guilty to methamphetamine charges with a guideline range of 108-135 months. The court granted the government’s substantial assistance motion, as well as the defendant’s request for a variance, and imposed a 72-month sentence, without explaining how the sentence related to each factor. Thereafter, Amendments 782 and 788, retroactively lowered the meth guidelines to 87-108 months. In response to defendant’s §1B1.10(b)(2)(B) motion, the court reduced the sentence to 70 months, stating that only 19 percent of the original reduction was based defendant’s substantial assistance. The Sixth Circuit rejected defendant’s argument that the variance reduction should also have been considered, ruling that a reduction under §1B1.10(b)(2)(B) is limited to the extent of a defendant’s substantial assistance. Judge Merritt dissented. U.S. v. Taylor, __ F.3d __ (6th Cir. Mar. 7, 2016) No. 15-5930.
5th Circuit affirms even though court considered non-assistance related factors in departure. (710) Defendants argued that the district court improperly considered non-assistance-related factors in reducing the extent of their § 5K1.1 departures. See U.S. v. Desselle, 450 F.3d 179 (5th Cir. 2006) (holding that extent of § 5K1.1 or § 3553(e) departure must be based solely on assistance-related concerns). The government conceded this, but argued that Desselle only barred a court from considering non-assistance-related factors when increasing the extent of a § 5K1.1 departure. The Fifth Circuit disagreed, but found any error harmless. The district court erred by mixing steps of the sentencing framework. Rather than determining the extent of defendants’ § 5K1.1 departures and then considering whether their overall sentences required adjustment in light of the § 3553(a) factors, it jumped ahead and adjusted the § 5K1.1 departures themselves. This was error, but it was limited to “how the district court’s analysis was sequenced.” The panel was confident that if it remanded, the result would be the same—the district court would simply grant defendants’ larger § 5K1.1 departures and then adjust their overall sentences downward in light of the § 3553(a) factors. U.S. v. Malone, __ F.3d __ (5th Cir. Dec. 11, 2015) No. 14-31426.
4th Circuit allows sentence reduction for defendant who received departure below mandatory minimum. (192)(710) Defendant pled guilty to charges carrying a mandatory minimum of 240 months, but the district court departed downward to 180 months under 18 U.S.C. § 3553(e), based on defendant’s substantial assistance to authorities. Defendant later moved under 18 U.S.C. § 3582(c)(2) for a sentence reduction based on recent guideline amendments, but the district court ruled that he was ineligible because his 180-month sentence was based on a statutory mandatory minimum and a statutorily authorized departure for substantial assistance, rather than on a guidelines range that had been subsequently lowered. The Fourth Circuit reversed, holding that Amendment 780, which revised the policy statement governing § 3582(c)(2) sentence reductions, explicitly made defendant eligible for relief. The applicable policy statement now requires a sentencing court to remove § 5G1.1 from the § 3582(c)(2) eligibility determination. Judge Traxler dissented. U.S. v. Williams, __ F.3d __ (4th Cir. Dec. 14, 2015) No. 15-7114.
7th Circuit finds no error in judge’s failure to mention defendant’s proffer to law enforcement. (710) Defendant contended that the sentencing judge erred by failing to consider one of his principal arguments in mitigation, namely, that he cooperated with law enforcement despite the lack of a government motion for a reduced sentence. Given the judge’s below-guidelines sentence, and his other comments, the Seventh Circuit held that the judge did not err by failing to mention defendant’s proffer to law enforcement when discussing the §3553(a) factors. Each time defense counsel raised the subject of cooperation, counsel mentioned it in conjunction with defendant’s quick acceptance of responsibility. The district court explicitly considered and credited defendant’s “exceptional acceptance of responsibility.” Although the judge did not go on to discuss defendant’s proffer specifically, the judge considered the mitigation argument in the same context as counsel, acceptance of responsibility. Moreover, defense counsel did not give the judge any meaningful specifics about defendant’s proffer, such as whether defendant identified suppliers, customers, the location of contraband, or any other specifics about his drug deals. U.S. v. Kappes, __ F.3d __ (7th Cir. Apr. 8, 2015) No. 14-1223.
Supreme Court to decide if substantial assistance departure is law of the case on remand. (710) At defendant’s sentencing for drug-trafficking crimes, the government sought a sentence 15 percent below defendant’s Guidelines range of 97 to 121 months based on defendant’s substantial assistance to the government. The district court granted 40 percent departure based on substantial assistance, and a further downward variance based on his post-offense rehabilitation. After a government appeal, the case was remanded for resentencing before a different judge. Defendant claimed that the law-of-the-case doctrine required the new judge to grant a 40 percent reduction. The judge rejected that contention and departed down only 20 percent for substantial assistance. The court also declined to reduce defendant’s sentence for post-offense rehabilitation. The Supreme Court granted certiorari to decide (1) whether at defendant’s resentencing, the district court was required to apply the same percentage departure for substantial assistance as at the initial sentencing; and (2) whether post-sentencing rehabilitation is a proper basis for a downward variance. In its response to the certiorari petition, the government agreed that post-sentence rehabilitation was a permissible basis for a variance. Pepper v. U.S., 561 U.S. __, 130 S.Ct. 3499 (2010) (granting certiorari).
Supreme Court holds that 5K1.1 substantial assistance motion does not allow departure below statutory minimum. (710) In a 7-2 opinion written by Justice Thomas, the Supreme Court held that a separate motion under 18 U.S.C. § 3553(e) is required to depart below a statutory mandatory minimum sentence. The majority ruled that nothing in § 3553(e) allows the Sentencing Commission to provide for a “unitary” substantial assistance motion, nor did the Commission attempt to exercise that authority in adopting guideline § 5K1.1. The Supreme Court thus agreed with the Third and Eighth Circuits, and overruled contrary cases in the Second, Fifth, Seventh and Ninth Circuits. Justices Souter and Stevens concurred separately, and Justices Breyer and O’Connor dissented. Melendez v. U.S., 518 U.S. 120, 116 S.Ct. 2057 (1996).
Supreme Court says courts have limited power to review government’s refusal to file substantial assistance motions. (710) In a unanimous opinion written by Justice Souter, the Supreme Court held that “federal district courts have authority to review a prosecutor’s refusal to file a substantial assistance motion and to grant a remedy if they find that the refusal was based on an unconstitutional motive,” such as “race or religion.” However, “a claim that a defendant merely provided substantial assistance will not entitle a defendant to a remedy or even to discovery or an evidentiary hearing.” Nor will “generalized allegations of improper motive.” The defendant here failed to make a “substantial threshold showing; counsel “merely explained the extent of [defendant’s] assistance to the Government.” The Government’s refusal to make the motion may have been based “not on a failure to acknowledge or appreciate [defendant’s] help, but simply on its rational assessment of the costs and benefits that would flow from moving.” Wade v. U.S., 504 U.S. 181, 112 S.Ct. 1840 (1992).
Supreme Court finds it unnecessary to decide whether 5K1.1 “implements” section 3553(c). (710) Guideline section 5K1.1 permits a court to depart downward from the guidelines on motion of the government where the defendant has provided substantial assistance in the investigation or prosecution of another person. Title 18 U.S.C. section 3553(e) permits a court to sentence below a statutory minimum for the same reason. In this case, the guidelines were the same as the statutory minimum. In a unanimous opinion written by Justice Souter, the Supreme Court said, “we are not, therefore, called upon to decide whether section 5K1.1 ‘implement’ and therefore supersedes section 3553(e), see U.S. v. Keene, 933 F.2d 711, 713-714 (9th Cir. 1991), or whether the two provisions pose separate obstacles, see United states v. Rodriguez-Morales, 958 F.2d 1441 (8th Cir. 1992).” Wade v. U.S., 504 U.S. 181, 112 S.Ct. 1840 (1992).
1st Circuit says continuance of sentencing to investigate cooperation was properly denied. (710) Defendant pled guilty to drug charges and was sentenced to 24 months. She argued that the district court erred in denying her request for a continuance of the sentencing hearing. Several days before sentencing, the government filed a notice announcing that it would not file a § 5K1.1 motion, explaining that defendant only agreed to cooperate once it was certain she would not have to testify against the man who had recruited her. Two days later, defendant requested a continuance, arguing that she needed time to investigate the government’s assertions and explain why her cooperation had been substantial. The First Circuit upheld the denial of the continuance. No amount of information would have allowed the court to grant a substantial assistance departure in the absence of a government motion. The information defendant sought would not have allowed the court to proceed as if a § 5K1.1 motion had been filed. U.S. v. Pacheco, 727 F.3d 41 (1st Cir. 2013).
1st Circuit affirms extent of substantial assistance departure. (710) Defendant challenged the extent of the substantial assistance departure he received, claiming that the district court failed to properly consider the so-called Mariano factors. See U.S. v. Mariano, 983 F.2d 1150 (1st Cir. 1993). The First Circuit disagreed. The record showed “with conspicuous clarity” the sentencing court’s awareness of the Mariano factors. Although the court, in pronouncing sentence, could have expounded upon the Mariano factors one by one, the law does not require such a level of specificity. “Where, as here, the court’s reasoning is easily inferred and there is nothing in the record to suggest that it overlooked any pertinent factor, the claim of procedural error is nothing more than hopeful speculation.” The fact that the court chose not to accept the prosecutor’s recommendation in full could not, by itself, establish that the court misweighed the Mariano factors. U.S. v. Anonymous, 629 F.3d 68 (1st Cir. 2010).
1st Circuit says court may not per se reject § 5K1.1 departures for defendants involved in murders. (710) Defendant’s plea agreement provided that the government would take the position that information he provided as part of his cooperation should not be used to determine whether, or to what extent, a departure was warranted. Nonetheless, the district court refused to grant a § 5K1.1 departure, relying on information defendant provided about his own involvement in several murders. The First Circuit held that the district court did not misinform defendant about how it would use the information he provided in its departure calculus. The court made it clear that it was under no obligation to depart, and it repeatedly advised him that a substantial assistance motion did not guarantee a departure. The government did not breach the plea agreement — it argued vigorously that the court should not use the information discussed in the plea agreement as part of its departure calculus. However, while the court had discretion to consider defendant’s role in the murders as grounds for denying the departure, the court’s comments suggested that it improperly followed a per se rule of denying § 5K1.1 departures to defendants involved in murders. If so, the court violated § 5K1.1’s mandate to conduct an individualized evaluation. The sentence was vacated and remanded for such an evaluation. U.S. v. Mills, 329 F.3d 24 (1st Cir. 2003).
1st Circuit holds that substantial assistance departure does not permit departure below statutory minimum on other grounds. (710) The government moved for a downward departure based on defendants’ substantial assistance in the investigation of others. See 18 U.S.C. § 3553(c); USSG § 5K1.1. At the same time, defendants cross-moved for additional departures based on extraordinary rehabilitation. Defendants were subject to a mandatory minimum sentence of 60 months under 21 U.S.C. § 841(b)(1)(B). The district court granted them a 21-month downward departure for substantial assistance, but found that it did not have any authority to further depart below the statutory minimum based on a ground unrelated to the defendants’ substantial assistance. Thus, it imposed a 39-month sentence. The First Circuit agreed. Once the court moves under § 3553(e), that section authorizes a court to sentence a defendant below a statutorily impose minimum, but only to the extent that reflects the court’s assessment of the defendant’s assistance. U.S. v. Ahlers, 305 F.3d 54 (1st Cir. 2002).
1st Circuit rejects narrow Singleton argument. (710) Defendant complained that the prosecutor offered witnesses leniency in state proceedings as well as unidentified “immigration assistance” in return for their testimony against defendant The objection was based on the Tenth Circuit’s now vacated opinion in U.S. v. Singleton, 144 F.3d 1343 (10th Cir. 1998), on rehearing, 165 F.3d 1297 (10th Cir. 1999), treating leniency and other benefits as “a thing of value” offered to a witness in violation of 18 U.S.C. § 201(c)(2). Defendant understood that Singleton was overruled, but urged a more limited version: he contended that while prosecutors may offer an implicated co-defendant a plea bargain in the case at hand, § 201(c)(2) should be interpreted to bar the government from offering to help the defendant in unrelated state criminal proceedings or in immigration matters. The First Circuit noted that U.S. v. Lara, 181 F.3d 183 (1st Cir. 1999), whose “explicit and unqualified” holding is § 201(c)(2) “does not apply at all to the federal sovereign qua prosecutor,” disposed of defendant’s narrowed argument. Moreover, leniency in state proceedings or forestalling deportation are not markedly different in character or consequences than a lesser sentence or no prosecution in the case at hand. U.S. v. Murphy, 193 F.3d 1 (1st Cir. 1999).
1st Circuit says § 5K1.1 is only avenue for substantial assistance departure. (710) Defendant argued that although the government refused to file a § 5K1.1 motion, the district court should have, given his cooperation, departed downward under § 5K2.0. The First Circuit, adopting the reasoning of the D.C., Fifth, and Third Circuits, held that a defendant’s assistance to the prosecutor cannot serve as the basis for a § 5K2.0 departure. See In re Sealed Case, 181 F.3d 128 (D.C. Cir. 1999); U.S. v. Solis, 169 F.2d 224 (5th Cir. 1999); U.S. v. Abuhouran, 161 F.3d 206 (3d Cir. 1998). Section 5K1.1 occupies the field. Departures for substantial assistance, however labeled, are available only under § 5K1.1. U.S. v. Alegria, 192 F.3d 179 (1st Cir. 1999).
1st Circuit says court may consider related mandatory minimum in departing downward. (710) Defendant had a guideline range of 63-78 months on drug counts, plus a mandatory consecutive 60-month sentence for use of a firearm under 18 U.S.C. § 924(c). The government moved for a § 5K1.1 departure, but did not ask for departure from the mandatory minimum under 18 U.S.C. § 3553(e). Defendant asked the court to consider the fact that he faced a statutory consecutive 60-month sentence, in deciding how much to depart from the guidelines. The district court refused, saying this would defeat the purpose of the statutory 60-month consecutive sentence in 924(c). On appeal, the First Circuit concluded that in departing from the guidelines, a district court may consider the pertinence, if any, of a related mandatory consecutive sentence. However, there was no reason to remand because it was unlikely the district court would have sentenced any differently. The court assumed, without deciding, that the government’s failure to ask for a departure from the statutory minimum prevented the district court from departing below sixty months. U.S. v. Webster, 54 F.3d 1 (1st Cir. 1995).
1st Circuit rejects equal protection challenge to substantial assistance departures. (710) Defendant was caught transporting 1.5 kilograms of heroin into the United States. The mandatory minimum term for the offense was 10 years. Although defendant provided authorities with what information she could, it was not helpful, and the government did not move for a substantial assistance departure. Defendant argued that it violated equal protection to impose a long sentence on a low-level courier who tried her best to cooperate but had little information to give, while providing lower sentences to major drug dealers who offenses are far more serious but have plenty of information to trade. The 1st Circuit upheld § 3E1.1, finding it was not irrational to offer leniency in exchange for useful information. Section 3E1.1 also does not violate Congress’s aim for sentencing “fairness.” Congress has expressly authorized departures below a statutory minimum to reflect a defendant’s substantial assistance, 18 U.S.C. § 3553(e). However, the government has the discretion to treat as “substantial assistance” a defendant’s provision of a substantial amount of information, even if the information does not result in further arrest or prosecution. U.S. v. Torres, 33 F.3d 130 (1st Cir. 1994).
1st Circuit denies motion to withdraw plea where defendant received substantial assistance departure. (710) Defendant’s plea agreement provided that in return for his cooperation, the government would dismiss three counts and seek a “lawful sentence.” The agreement did not obligate the government to seek a substantial assistance departure. Defendant provided some assistance, but was forced to stop after the district court ordered the cessation of defendant’s active law enforcement cooperation. The 1st Circuit upheld the denial of defendant’s motion to withdraw his guilty plea. The government ultimately dismissed the three counts and moved for a downward departure, which the district court granted. Thus, defendant received the benefit of his bargain, plus a substantial assistance departure. U.S. v. Laliberte, 25 F.3d 10 (1st Cir. 1994).
1st Circuit rules that standard for departure under 5K1.1 is different than under 5K2.0. (710) Relying on U.S. v. Aguilar-Pena, 887 F.2d 347 (1st Cir. 1989), the district court rejected the government’s motion for a downward departure under section 5K1.1. The 1st Circuit found that the district court misunderstood the standard for departures under section 5K1.1. Aguilar-Pena involved section 5K2.0, and says that the authority to depart under section 5K2.0 is restricted to those few instances where there is something atypical about the offender or the crime committed. In contrast, section 5K1.1 operates as an incentive for cooperation, and the Sentencing Commission sought to maximize the number of times it would be used. A court must consider the factors enumerated in section 5K1.1, and should make findings regarding each item. The court may consider other mitigating factors to the extent they touch upon the degree, efficacy, timeliness and circumstances of a defendant’s cooperation. Finally, a court may consider other unrelated matters as grounds for withholding or limiting a substantial assistance departure. U.S. v. Mariano, 983 F.2d 1150 (1st Cir. 1993).
1st Circuit says testimony about extent of cooperation did not breach plea agreement. (710) Defendant’s plea agreement obligated the government to make a downward departure motion under section 5K1.1 based on her cooperation. Defendant argued that the government breached the agreement by presenting the testimony of a DEA agent as to the extent of her cooperation. The agent testified that defendant deserved a downward departure for her cooperation, but that defendant had more to offer the government than she gave. The 1st Circuit rejected defendant’s claim that this testimony violated the plea agreement. The government fully complied with its promise to request a downward departure under section 5K1.1. The testimony of the DEA agent was offered to assist the district court in determining the extent it should depart from the guidelines. It was appropriate for the government to provide the court with information as to the material facts surrounding defendant’s cooperation. U.S. v. Gonzalez-Perdomo, 980 F.2d 13 (1st Cir. 1992).
1st Circuit rejects further downward departure for single mother of three children. (710) The district court granted the government’s motion for a downward departure under section 5K1.1 based on defendant’s substantial assistance, and denied defendant’s request for a downward departure based upon her family responsibilities as a single mother of small children. Notwithstanding guideline section 5H1.6, defendant argued that the district court could consider her status as a single parent in determining the extent of the departure. According to defendant, once the government moved for departure under section 5K1.1, it opened the door for the court to consider factors unrelated to her assistance to the government in determining the extent of the departure, even if those factors were listed elsewhere as irrelevant in determining the appropriateness of a departure. The 1st Circuit held that even if a court could base the extent of a departure under section 5K1.1 on factors not listed in section 5K1.1, any additional non-listed factors would have to relate to the defendant’s substantial assistance to authorities. Moreover, defendant’s status as a single mother of three young children was not an unusual family circumstance. The sentencing commission was aware that some convicted felons are single parents of small children. U.S. v. Chestna, 962 F.2d 103 (1st Cir. 1992).
1st Circuit refuses to review whether government’s refusal to move for downward departure was arbitrary. (710) Defendant contended that the government’s refusal to file a section 5K1.1 motion was arbitrary, and that therefore, the appellate court should await the Supreme Court’s decision in U.S. v. Wade, 936 F.2d 169 (4th Cir.) aff’d, Wade v. U.S., 504 U.S. 181, 112 S.Ct. 1840 (1992), before upholding her sentence. The 1st Circuit rejected her argument, since this was not even a close case. Defendant did not testify against the ringleader of the conspiracy or assist in his prosecution in any way. By the time she identified him as the ringleader, he had already been detained in the immigration area. The prosecutor explained convincingly why defendant’s assistance was insubstantial. Thus, even if arbitrariness on the government’s part confers some discretion on a district court to depart downward in the absence of a government motion, defendant did not present such a case. U.S. v. Amparo, 961 F.2d 288 (1st Cir. 1992).
1st Circuit rules government may not defer consideration of departure motion until after defendant’s cooperation is “complete.” (710) Defendant cooperated extensively with the government. Nevertheless, the government declined to file a motion for a downward departure under guideline § 5K1.1 primarily because the government did not view defendant’s cooperation as “complete.” The government took the position that a downward departure “was still an open question” which could subsequently be addressed under Fed. R. Crim. P 35(b). Defendant contended that the prosecutor’s decision to defer the question of whether to file a departure motion until defendant’s cooperation was completed violated due process. The 1st Circuit agreed that § 5K1.1 did not permit the government to defer this decision until after sentencing. This position “improperly merge[d] the temporal boundaries established in § 5K1.1 and Fed. R. Crim. P. 35(b).” Section 5K1.1 was designed to recognize and reward assistance rendered prior to sentencing. In contrast, Rule 35 was designed to recognize and reward cooperation rendered after the defendant had been sentenced. U.S. v. Drown, 942 F.2d 55 (1st Cir. 1991).
2nd Circuit holds that court improperly ignored substantial assistance letter. (710) Defendant signed a plea agreement which provided in part that the applicable guidelines term of imprisonment was 18-24 months, that the Guidelines were advisory and the court was required to consider the § 3553(a) factors, and that defendant agreed not to appeal any sentence below 27 months. Based on defendant’s later cooperation, the government submitted a § 5K1.1 letter to the court urging it to consider a sentence below the 18-24 month range. The district court refused, reasoning that the government’s advocacy of a below-Guidelines sentence was an impermissible attempt to repudiate or amend the plea agreement. In effect, the court believed that because of the appeal waiver, any sentence at or below 27 months was appropriate. The court sentenced defendant to 18 months, and defendant appealed. The Second Circuit vacated the sentence because the district court (1) improperly “relied” on the plea agreement to the exclusion of the § 5K1.1 letter and the § 3553(a) factors; and (2) misread the plea agreement as manifesting defendant’s enforceable concession that any sentence at or below 27 months obviated the need to consider the § 5K1.1 letter ad the § 3553(a) factors. U.S. v. Woltmann, 610 F.3d 106 (2d Cir. 2010).
2nd Circuit says court did not adequately explain reasons for large substantial assistance departure. (710) Defendant pled guilty to drug charges that subjected her to a 20-year mandatory minimum sentence. The district court sentenced her to 454 days, which was a departure of about 93% from the statutory minimum. The district court said the government’s substantial assistance motion enabled it to impose a sentence it deemed “fair and reasonable under the circumstances.” The Second Circuit remanded because it could not determine whether the sentence was procedurally reasonable. The district court merely stated that it was taking into account “all the pertinent information including but not limited to the presentence investigation report, submissions by counsel, the factors outlined in 18 U.S.C. section 3553 and the sentencing guidelines.” When government counsel inquired as the court’s method of “calculation,” the court responded: “Based on all the circumstances in the case and the motion by the government, this is the [c]ourt’s sentence.” U.S. v. Richardson, 516 F.3d 145 (2d Cir. 2008).
2nd Circuit remands because judge did not exercise discretion to determine extent of departure. (710) In U.S. v. Campo, 140 F.3d 415 (2d Cir. 1998), the Second Circuit vacated a sentence because the judge had refused to depart downward because the U.S. Attorney had not recommended a departure to a specific sentence. The judge had departed downward to probation on co-defendant after the judge had pressured the U.S. Attorney into a concession that she would not object to such a sentence. In this case, the same judge continued to pressure the U.S. Attorney to provide a specific recommendation, denigrated the usefulness of the government’s § 5K1.1 letter, plainly indicated that the absence of a specific recommendation affected his sentence, and implied that if the government had recommended probation, he would have imposed such a sentence instead of the 10-year sentence he ended up imposing. The Second Circuit held that resentencing was required because it appeared that the judge did not exercise his discretion in imposing his departure, and that the U.S. Attorney’s refusal to make a specific sentencing recommendation may have caused the judge to impose a higher sentence than he otherwise would have imposed. Equally disturbing, when read in context with Campo, was the implication that the judge would have “rubber-stamped” any specific recommendation offered by the government. The U.S. Attorney’s office has no obligation to provide a specific sentencing recommendation, and has sound reasons for declining to do so. U.S. v. Doe, 348 F.3d 64 (2d Cir. 2003).
2nd Circuit rules judge understood claim that small departure “punished” defendant for cooperation. (710) Defendant pled guilty to counts arising from his participation in a conspiracy to steal automobile airbags and resell them to the public. He also pled guilty to drug charges. The government moved under § 5K1.1 and 18 U.S.C. § 3553(e) for a departure below the mandatory minimum based on defendant’s substantial assistance. The PSR and the defense recommended a sentence of time served (19 months) because, until defendant cooperated, the government had no knowledge of defendant’s drug trafficking activities. They contended that if defendant were sentenced more harshly than his co-defendants in the airbag conspiracy, he would be punished for his cooperation. The district court declined to adopt the PSR’s recommendation, and instead sentenced defendant to 60 months in prison. Defendant appealed the extent of the departure as “in violation of the law,” claiming it rested on the judge’s failure to understand that the 60-month sentence would punish defendant more severely than non-cooperating co-defendant and thereby would penalize him for his cooperation. The Second Circuit found this argument without merit. The record from the sentencing hearing demonstrated that the district court understood all of the material facts that were relevant to the determination of defendant’s sentence. The court’s refusal to ignore defendant’s commission of a separate drug trafficking offense did not reflect a “violation of the law” or a “misapplication of the guidelines.” U.S. v. Percan, 233 F.3d 164 (2d Cir. 2000).
2nd Circuit holds that anti-gratuity statute does not apply to U.S. prosecutor acting in official capacity. (710) Defendant argued that the admission of co-conspirator testimony at his trial violated the so-called “anti-gratuity statute,” 18 U.S.C. § 201(c)(2), because the government promised these witnesses leniency in exchange for their truthful testimony. The Second Circuit, agreeing with the reasoning of the Tenth Circuit’s en banc opinion in U.S. v. Singleton, 165 F.3d 1297 (10th Cir. 1999) (en banc), held that 18 U.S.C. § 201(c)(2) does not apply to the United States or to any Assistant United States Attorney acting within his or her official capacity. U.S. v. Stephenson, 183 F.3d 110 (2d Cir. 1999).
2nd Circuit holds that letter from marshal was not substantial assistance motion. (710) Defendant helped a U.S. marshal apprehend a fugitive by providing names of surrogates who could help locate the fugitive. Prior to defendant’s sentencing, the marshal sent the court a letter stating that the fugitive was apprehended as a direct result of defendant’s contacts. The assistant U.S. attorney assigned to prosecute defendant declined to make a § 5K1.1 motion. The Second Circuit held that the marshal’s letter was not a motion for a § 5K1.1 downward departure. First, the marshal did not request a departure. Papers simply acknowledging substantial assistance are not considered a motion for a departure. Second, the marshal was not the “government” for purposes of § 5K1.1. Common sense dictates that the motion must be made by the attorney representing the government. The prosecutor determines whether to make a § 5K1.1 motion. U.S. v. Difeaux, 163 F.3d 725 (2d Cir. 1998).
2nd Circuit requires court to consider § 5K1.1 motion even if government refuses to recommend sentence. (710) Defendant pled guilty to fraud, money laundering and drug charges. The government filed a § 5K1.1 motion for a substantial assistance departure, but did not recommend a specific sentence. The judge refused to depart because the government did not provide a specific sentencing recommendation. The Second Circuit held that the district judge erred in refusing the consider the merits of the § 5K1.1 motion simply because the government did not recommend a specific sentence. Although § 5K1.1 gives a district court discretion whether to grant the government’s substantial assistance motion, a court must at least exercise that discretion when presented with a § 5K1.1 motion. The court’s express refusal to do so in this case resulted in a sentence “imposed in violation of law.” Just as a court’s failure to understand its authority to depart is a legal error appealable under § 3742(a)(1), it is likewise legal error for a court to expressly abdicate its discretion. U.S. v. Campo, 140 F.3d 415 (2d Cir. 1998).
2nd Circuit finds downward departure already included acceptance of responsibility. (710) Defendant claimed the district court should have given him a three-level reduction for acceptance of responsibility. The Second Circuit found no error because the district court said its § 5K1.1 downward departure for substantial assistance covered defendant’s acceptance of responsibility. The court departed under § 5K1.1 from offense level 36 to 27. The judge initially expressed reluctance to go lower than level 30, but finally agreed to go to 27 in response to the government’s and defendant’s assertions that defendant had not only cooperated in dangerous circumstances but had accepted responsibility. The court expressly noted that the reduction would cover defendant’s acceptance of responsibility. Thus it was clear that, had defendant received a formal § 3E1.1 reduction, the court would not have sentenced defendant to any less prison time. U.S. v. Workman, 110 F.3d 915 (2d Cir. 1997).
2nd Circuit finds downward departure already included acceptance of responsibility. (710) Defendant claimed the district court should have given him a three-level reduction for acceptance of responsibility. The Second Circuit found no error because the district court said its § 5K1.1 downward departure for substantial assistance covered defendant’s acceptance of responsibility. The court departed under § 5K1.1 from offense level 36 to 27. The judge initially expressed reluctance to go lower than level 30, but finally agreed to go to 27 in response to the government’s and defendant’s assertions that defendant had not only cooperated in dangerous circumstances but had accepted responsibility. The court expressly noted that the reduction would cover defendant’s acceptance of responsibility. Thus it was clear that, had defendant received a formal § 3E1.1 reduction, the court would not have sentenced defendant to any less prison time. U.S. v. Workman, 110 F.3d 915 (2d Cir. 1997).
2nd Circuit says defendant must be permitted to bring counsel to debriefing sessions. (710) Defendant entered into a cooperation agreement and the government promised to file a § 5K1.1 motion if appropriate. The prosecutor believed that defendant did not fully cooperate during his debriefing. Although the government moved for a § 5K1.1 departure, it disparaged defendant’s assistance. Defense counsel was not present at the debriefing because she was not given any advance notice. The Second Circuit, exercising its supervisory authority, held that cooperating witnesses are entitled to have counsel present at debriefings, unless they explicitly waive such assistance. A defense attorney can play an important role in a debriefing, explaining to defendant the government’s questions, helping resolve potential disagreements, and assisting the defendant to ensure that his answers are complete and accurate. An appellate court has supervisory authority to require lower courts to adhere to procedures deemed desirable as a matter of sound judicial practice. The appellate court exercised that authority here to permit defendants to bring counsel to debriefing sessions. U.S. v. Ming He, 94 F.3d 782 (2d Cir. 1996).
2nd Circuit uses upward departure as starting point for substantial assistance departure. (710) Defendant pled guilty to smuggling illegal aliens into the U.S. and aiding in misconduct resulting in a loss of life. The court concluded that, but for a substantial assistance departure, it would have imposed the maximum five year sentence for the smuggling charge and the maximum 10 year sentence for the manslaughter charge, for a total of 15 years. In light of the government’s § 5K1.1 motion, however, the court departed downward and ran the sentences concurrently, for a total sentence of ten years. Defendant argued that § 5G1.2(c) required concurrent sentences, and therefore the court failed to give effect to the government’s § 5K1.1 motion. The Second Circuit held that the court properly imposed consecutive sentences by departing upward, and then used the consecutive sentences as a starting point for the substantial assistance departure. The substantial upward departure was reasonable, because (1) multiple deaths resulted, (2) these deaths were the foreseeable result of the intentional grounding of the ship, (3) the conditions on the smuggling vessel were dangerous and inhumane, and (4) the voyage involved more than 100 aliens. U.S. v. Hui, 83 F.3d 592 (2d Cir. 1996).
2nd Circuit permits court to revisit extent of downward departure on remand. (710) Defendant had a guideline range of 51 to 63 months. The district court granted the government’s § 5K1.1 motion and reduced defendant’s offense level by one, which resulted in a guideline range of 46 to 57 months. The district court imposed a 51-month sentence. Defendant and the government questioned whether the district court intended to sentence defendant to a sentence that could have been given without the departure. Since the case was being remanded on other grounds, the Second Circuit authorized the district court to revisit this issue as it felt appropriate. U.S. v. Amato, 46 F.3d 1255 (2d Cir. 1995).
2nd Circuit says court may rely on analogous state law to determine extent of downward departure. (710) The district court departed downward under section 5K1.1 from a 360-month to life guideline range, but because of the limited extent of defendant’s cooperation, found it would be inappropriate to depart below the 25-year sentence defendant would have received if sentenced under state law. Defendant argued that this reference to a hypothetical sentence under state law was erroneous. The 2nd Circuit held that because the reference to the analogous state law influenced only the extent of the departure rather than the decision to depart, the court’s exercise of discretion was not reviewable. While it would be error to make the decision to depart on the basis of a hypothetical state sentence, it was within the district court’s broad discretion to refer to the state sentence in determining the extent of the departure based on other grounds. U.S. v. Lucas, 17 F.3d 596 (2nd Cir. 1994).
2nd Circuit holds that Rule 11(e)(1)(C) prevented judge from departing further than plea agreement. (710) Defendant’s plea agreement provided that pursuant to Fed. R. Crim. P. 11(e)(1)C), in return for her guilty plea, the government agreed to a four-level reduction in offense level. The 2nd Circuit affirmed the district court’s determination that it lacked discretion to reduce defendant’s guidelines offense level by more than the four levels called for in the plea agreement. True, once the government has moved for a substantial assistance departure, it is within the sentencing court’s authority to determine the appropriate extent of departure. However, this principle is inapplicable to plea agreements governed by Rule 11(e)(1)(C). Rule 11, and not guidelines section 5K1.1, controls the acceptance or rejection of plea agreements. The rule plainly contemplates that plea agreements executed pursuant to either subdivision (e)(1)(A) or (C) are binding on the district court. The district court may accept or reject such a plea agreement, but once the plea has been accepted, the court may not modify it. U.S. v. Cunavelis, 969 F.2d 1419 (2nd Cir. 1992).
2nd Circuit upholds downward departure based on defendant’s assistance to judicial system. (710) Defendant agreed to testify against his two co-defendants, which resulted in their changing their pleas from not guilty to guilty. The district court departed downward because it found that defendant’s cooperation, in “break[ing] the log-jam in a multi-defendant case” in an over-clogged judicial system, “facilitated the proper administration of justice.” The 2nd Circuit upheld the departure, finding that this type of assistance was not adequately considered by the guidelines. Guideline § 5K1.1, relating to substantial assistance to authorities, focuses only on assistance that a defendant provides to the government, rather than the judicial system. Defendant not only helped the government develop the case, his cooperation resulted in the disposition of charges against the remaining two defendants. Defendant’s willingness to testify also amounted to more than mere acceptance of responsibility. U.S. v. Garcia, 926 F.2d 125 (2nd Cir. 1991).
2nd Circuit announces procedure for challenging government’s refusal to move for downward departure. (710) The plea agreement stated that if the government determined that defendant “made a good faith effort to provide substantial assistance” it would move for a downward departure under § 5K1. The 2nd Circuit found that two steps are involved when the government fails to move for a downward departure pursuant to such an agreement. First, a defendant must first allege that the government acted in bad faith. At this step the defendant has no burden to make any showing of prosecutorial bad faith. The prosecutor must then briefly explain the government’s reasons for refusing to make a motion. Following the government’s explanation, the defendant must show bad faith “sufficient to trigger some sort of hearing on that issue.” In this case, defendant never took the first step of alleging bad faith. Therefore, the district court properly denied the request to review the government’s refusal to move for a downward departure. U.S. v. Khan, 920 F.2d 1100 (2nd Cir. 1990).
2nd Circuit upholds government’s refusal to recommend downward departure despite plea agreement. (710) The plea agreement provided that the government would move at sentencing for a downward departure if defendant “made a good faith effort to provide substantial assistance to the government.” The government refused to move for a downward departure because it concluded defendant had not provided substantial assistance contemplated by the agreement. Defendant appealed, asking for specific performance of the plea agreement. The 2nd Circuit held that “where a cooperation agreement provides that the prosecutor will move for a downward departure under the sentencing guidelines in return for the defendant’s good faith effort to provide substantial assistance, evaluation of defendant’s effort lies in the discretion of the prosecutor and may be reviewed only on a showing of prosecutorial misconduct or bad faith.” Here the government acted in good faith. U.S. v. Rexach, 896 F.2d 710 (2nd Cir. 1990).
3rd Circuit requires “departure” to be lower than low end of guideline range. (710) Defendant pled guilty to drug charges, resulting in a guideline range of 46-57 months. At sentencing, the district court stated that, pursuant to the government’s § 5K1.1 motion, it would grant a one-level downward departure because of defendant’s substantial assistance. A one-level departure resulted in a range of 41-51 months, which overlapped the original range. The district court sentenced defendant to 48 months. However, in granting a downward departure, a district court must follow the definition set out in the Sentencing Guidelines: a downward departure is a “departure that effects a sentence less than a sentence that could be imposed under the applicable guideline range or a sentence that is otherwise less than the guideline sentence.” Note 1.E to § 1B1.1. By departing to a range that overlapped with the original range, and then imposing a sentence within both guideline ranges, the district court did not meet this requirement. Although defendant failed to object to the sentence or the sentencing procedure, the Third Circuit remanded for resentencing because the court’s decision constituted plain error. U.S. v. Vazquez-Lebron, 582 F.3d 443 (3d Cir. 2009).
3rd Circuit rejects reduction for crack defendants originally sentenced below mandatory minimum. (710) Defendants pled guilty to crack cocaine charges, and were granted significant substantial assistance departures below their statutory mandatory minimums. After Amendment 706 reduced the crack cocaine offense levels, defendants moved under § 3582(c)(2) for a further reduction. The Third Circuit held they were not entitled to a reduction, because § 1B1.10(a)(2)(b) provides that a reduction under § 3582(c)(2) is not authorized if the amendment “does not have the effect of lowering the defendant’s applicable guideline range.” While Amendment 706 would have lowered defendants’ initial sentencing ranges, the amendment did not lower either of defendants’ mandatory minimum sentences. The term “applicable guideline range” in § 1B1.10(a)(3) refers to the guideline sentences as set out by the statutory minimum, not the initial range determined before application of the mandatory minimum. U.S. v. Doe, 564 F.3d 305 (3d Cir. 2009).
3rd Circuit holds that reduction at resentencing was inconsistent with proper sentencing procedure. (710) Defendant’s guideline range was 41-51 months. The government did not move for a downward departure, and the district court sentenced him to 48 months. On appeal, the Third Circuit agreed with defendant that the government breached the plea agreement by failing to move for a substantial assistance departure, and remanded for resentencing. On remand, the district court incorporated its prior rulings that established a guideline range of 41-51 months, and then reduced defendant’s original sentence of 48 months by six months, imposing a sentence of 42 months. The Third Circuit reversed, finding that the manner in which the district court reduced defendant’s prior sentence was inconsistent with proper sentencing procedure. When a defendant is promised the possibility of a departure from the guidelines under § 5K1.1, he may reasonably expect to be given the possibility of a sentence below the guideline range. By departing from a previously imposed sentence, rather than from the calculated guideline range, the court inverted the proper sentencing procedure. U.S. v. Floyd, 499 F.3d 308 (3d Cir. 2007).
3rd Circuit holds that agreement obligated government to consider whether defendant’s assistance merited departure. (710) Defendant’s plea agreement provided that “if the United States believes the defendant has provided ‘substantial assistance’ … the United States may request the Court to depart below the guideline range ….” The government chose not to recommend a downward departure, noting that defendant had received a significant benefit from being permitted to plead guilty to a single crime carrying only a 60-month maximum. The Third Circuit held that the government breached its promise to consider recommending a downward departure if defendant provided substantial assistance. If the phrase “may request” were to signify complete discretion, then the sentence specifying the circumstances under which the government could decline to exercise its discretion would be entirely unnecessary. By the plain language of the agreement, defendant reasonably expected that the government would consider her assistance and, if it was valuable and she did not otherwise violate the agreement, the government would move for a downward departure. The government did not reserve the right not to recommend a departure on the ground that the charge bargain turned out to be more favorable than it had originally anticipated. The government’s explanation for its failure to recommend the downward departure did not meet the good faith requirement because it was based on considerations extraneous to the assistance provided by defendant. U.S. v. Floyd, 428 F.3d 513 (3d Cir. 2005).
3rd Circuit says defendant is not entitled to advance notice that court had doubts about his truthfulness. (710) Defendant complained that the district court improperly limited her substantial assistance departure based on the sentencing judge’s doubts about her credibility. The Third Circuit concluded that the district court could properly consider its reservations about defendant’s truthfulness in determining the extent of its departure. Moreover, defendant’s lack of notice that the departure would be affected by the court’s doubts as to the truthfulness of her testimony was not grounds for reversal. Nothing in the guidelines purports to require the judge to disclose in advance such matters as his appraisal of the undisputed material in the PSR or impressions created by the defendant during trial. “Indeed, such announcement of the judge’s tentative feeling about factors bearing on appropriate punishment might undermine the efficacy of the sentencing hearing.” U.S. v. Carey, 382 F.3d 387 (3d Cir. 2004).
3rd Circuit holds that mandatory minimum sentence was proper starting point for downward departure. (710) Defendant’s offense level and criminal history category resulted in a guideline range of 64-78 months’ imprisonment. However, defendant was subject to a mandatory minimum sentence of 10 years, pursuant to 21 U.S.C. § 841(b)(1). The court used that 120-month mandatory minimum as the starting point for granting a downward departure pursuant to the government’s substantial assistance motion. The Third Circuit agreed that the mandatory minimum sentence, and not the otherwise applicable guideline range, was the proper starting point for the downward departure. Several other courts of appeals to decide this issue are in agreement. See, e.g. U.S. v. Li, 206 F.3d 78 (1st Cir. 2000); U.S. v. Head, 178 F.3d 1205 (11th Cir. 1999). Although 18 U.S.C. § 3553(e) requires a court to select a starting point “in accordance with the guidelines,” that does not mean the court should disregard any applicable mandatory minimum sentence. See U.S.S.G. § 5G1.1(b) (providing that “[w]here a statutorily required minimum sentence is greater than the maximum of the applicable guideline range, the statutorily required minimum sentence shall be the guideline sentence.”) Therefore, the 120-month mandatory minimum sentence displaced the 63-78 month range as the guideline range. U.S. v. Cordero, 313 F.3d 161 (3d Cir. 2002).
3rd Circuit requires court making § 5K1.1 departure to conduct fact-specific analysis and recognize guideline factors. (710) Although defendant provided assistance for five years that the government characterized as “substantial and important,” “vital,” “diligent and aggressive,” “extraordinary,” and of “enormous benefit,” the district court chose to depart by only one month from the 12-18 month guideline range. Defendant argued that the district court failed to conduct an adequate assessment of § 5K1.1’s five enumerated factors. The Third Circuit agreed that when considering a substantial assistance departure, a sentencing court must not only conduct a qualitative, case-by-case analysis, but also must examine § 5K1.1’s enumerated factors. At a minimum, the judge must indicate his or her consideration of § 5K1.1’s five factors in determining whether and to what extent to grant a sentencing reduction. The district court here marginally met this burden. The court heard and considered arguments that covered each factor enumerated in the guidelines, and apparently read the government’s letter. Although the court failed to articulate the details of defendant’s substantial assistance, the record indicated that the court weighed the § 5K1.1 factors. Finally, while court’s comments did appear to evidence an improper bias against rewarding substantial assistance, the panel remained convinced that the decision to depart by only one month was based on valid grounds rather than “personal predilections.” U.S. v. Torres, 251 F.3d 138 (3d Cir. 2001).
3rd Circuit says court may announce departure in terms of months rather than offense level. (710) The district court departed downward by one month under § 5K1.1 from defendant’s guideline range of 12-18 months. Defendant argued that the court erred by not announcing its sentencing reduction in terms of offense levels rather than in terms of months. The Third Circuit found no error. Neither the Sentencing Reform Act nor the Guidelines contain such a requirement. Under the guidelines, a departures measured in months is easily translated into offense levels. U.S. v. Torres, 251 F.3d 138 (3d Cir. 2001).
3rd Circuit upholds use of statutory minimum, rather than guideline minimum, as point of § 5K1.1 departure. (710) Defendant had a guideline range of 108-135 months, but was subject to a mandatory minimum sentence of 120 months. The government moved for a substantial assistance departure under § 5K1.1 and 18 U.S.C. § 3553(e), authorizing the court to impose a sentence lower than the otherwise applicable mandatory minimum sentence. The court imposed a 90-month sentence. Defendant argued for the first time on appeal that the court erred in choosing as its baseline for departure the 120-month mandatory minimum rather than the 108-month guideline minimum. The Third Circuit found no plain error. Both the Seventh and Eleventh Circuits have rejected similar arguments, see U.S. v. Hayes, 5 F.3d 292 (7th Cir. 1993); U.S. v. Head, 178 F.3d 1205 (11th Cir. 1999), and defendant was unable to point to any decisions in support of his argument. This did not mean that if the issue came to the court in a form requiring resolution that the court would adopt the approach taken by the Seventh and Eleventh Circuits. However, there was no basis for concluding that the methodology used by the district court was an “error [which was] clear under current law.” U.S. v. Clark, 237 F.3d 293 (3d Cir. 2001).
3rd Circuit says government may make § 5K1.1 motion and refuse to recommend departure. (710) At sentencing, the government declared that its § 5K1.1 motion merely granted the district court “permission” to depart downward, but that the government “certainly [did not] recommend a downward departure.” Defendant argued that the government breached the plea agreement and acted in bad faith by failing to make “a more concerted 5K1.1 downward departure motion at the time of sentencing.” The Third Circuit held that the government’s refusal to recommend a downward departure despite making the § 5K1.1 motion did not breach the plea agreement. The plain terms of the plea agreement required only that the government file a § 5K1.1 motion in order to give the court the power to depart downward. The agreement did not require the government to recommend a downward departure at sentencing and did not prohibit the government from stating at the sentencing hearing that it did not recommend a departure. U.S. v. Medford, 194 F.3d 419 (3d Cir. 1999).
3rd Circuit rules anti-gratuity statute does not bar government from promising leniency for testimony. (710) Defendant argued that the government violated the anti-gratuity statute, 18 U.S.C. § 201(c)(2), by making promises of leniency to several cooperating witnesses in exchange for their truthful testimony against him. See U.S. v. Singleton, 144 F.3d 1343 (10th Cir. 1998), on rehearing, 165 F.3d 1297 (10th Cir. 1999). The Third Circuit, aligning itself with the en banc decision of the Tenth Circuit, as well as every other circuit court to have considered the issue, held that § 201(c)(2) does not prohibit the government from promising leniency to cooperating witnesses in exchange for truthful testimony. Construing § 201(c)(2) to bar the government from offering leniency in exchange for truthful testimony would deprive the sovereign of an established and recognized prerogative and would work “an obvious absurdity,” given the numerous more recent statutes which presuppose the use of testimony in exchange for leniency. Moreover, it was completely implausible that Congress, in enacting § 201(c)(2), intended to sub silentio overrule the government’s long-standing practice of entering into such agreements. U.S. v. Hunte, 193 F.3d 173 (3d Cir. 1999).
3rd Circuit finds no reversible error in granting § 5K1.1 departure but sentencing within range. (710) At sentencing, the government made a § 5K1.1 motion for a substantial assistance departure. However, the prosecutor recommended a minimal departure in the upper range of the guideline because defendant had the opportunity to provide significant information but chose not to do so. The district court purported to grant the government’s motion, but still sentenced defendant within the applicable guideline range. Defendant argued that a sentencing judge who has granted a § 5K1. motion cannot impose a sentence with the guideline range. The Third Circuit disagreed. Although it would have been preferable for the court to deny the departure motion and then acknowledge defendant’s assistance by sentencing lower in the guideline range than it would otherwise have done, there was no reversible error. The district court’s statement that it granted a departure was harmless error. It was clear that the court was aware of its discretion to depart below the guideline range, but that it did not believe that assistance warranted a sentence below that range. U.S. v. Faulks, 143 F.3d 133 (3d Cir. 1998).
3rd Circuit has no jurisdiction to review extent of substantial assistance departure. (710) Defendant challenged the extent of the district court’s § 5K1.1 downward departure for substantial assistance. The Third Circuit held that the extent of a district court’s downward departure is not subject to appellate review. If appellate courts do not have jurisdiction to review a district court’s discretionary refusal to depart downward, it follows that they do not have jurisdiction where there has been some exercise of that discretion. U.S. v. Khalil, 132 F.3d 897 (3d Cir. 1997).
3rd Circuit upholds refusal to file 5K1.1 motion where defendant failed to provide complete information. (710) Defendants argued that the government’s decision not to file a § 5K1.1 motion for a substantial assistance departure violated their plea agreements. The Third Circuit upheld the district court’s finding that defendants breached their agreement by failing to provide the government with complete information about the offense. The government conceded that the information defendants provided was truthful and accurate, but argued that it was not “complete” as required by the plea agreement. An experienced police investigator testified that because defendants had both been involved in the crack cocaine business for several years, the information that they would have gathered while in the business far exceeded what they were willing to tell the government. These suspicions were supported by defendants’ conduct during the debriefing sessions. Defendants demanded that they be interviewed together, and during the interview, when one would begin to discuss something, the other defendant would tell him no, . . . we’re not going to tell them about that.” U.S. v. Roman, 121 F.3d 136 (3d Cir. 1997).
3rd Circuit rejects use of judge’s sentencing “practice” to determine extent of substantial assistance departure. (710) In response to the government’s § 5K1.1 motion, the district judge stated that his practice, when granting a § 5K1.1 motion, was to go down three levels, on the theory that substantial assistance should be worth the same as acceptance of responsibility. The Third Circuit held that the guidelines prohibit the use of sentencing “practices” to determine the extent of a departure; instead the district court must conduct an individualized, case-by-case consideration of the extent and quality of a defendant’s cooperation. Although the court did not follow any “practice” in sentencing defendant’s co-defendants, based on its statement at sentencing, it must be assumed to have erroneously done so here. U.S. v. King, 53 F.3d 589 (3d Cir. 1995).
3rd Circuit rules that section 5K1.1 applies to assistance to any government authority. (710) Before sentencing, defendant presented an affidavit describing defendant’s extensive assistance to state authorities during the preceding two years. The government declined to make a motion for a downward departure under section 5K1.1, since defendant’s cooperation occurred during the same time period as the instant offense and it had no independent knowledge of defendant’s cooperation with state authorities other than the affidavit. Defendant then argued that despite the absence of a government motion, the district court had the authority to depart under section 5K2.0. The 3rd Circuit ruled that because assistance to state authorities is a factor specifically taken into consideration in section 5K1.1, such assistance could not be a basis for a section 5K2.0 departure. U.S. v. Love, 985 F.2d 732 (3rd Cir. 1993).
3rd Circuit says court may consider usefulness of cooperation in determining extent of departure. (710) Defendant’s assistance in the investigation of a bribery scheme became almost useless when the tar-get of the investigation died. The 3rd Circuit held that in determining the extent of the downward departure, the district court could consider the fact that defendant’s cooperation proved to be less useful than anticipated. The Sentencing Reform Act, makes it clear that the Commission shall define the specific method for determining the extent of a downward departure. Section 5K1.1(a)(1) clearly authorizes a district court, in determining the extent of a departure, to consider “the significance and usefulness of the defendant’s assistance,” taking into consideration the government’s evaluation of the assistance rendered. The government’s report to the district court on the usefulness of his cooperation did not breach the plea agreement. U.S. v. Spiropoulos, 976 F.2d 155 (3rd Cir. 1992).
3rd Circuit refuses to review whether government’s refusal to move for downward departure was in good faith. (710) Defendant contended that the government did not act in good faith in refusing to request a downward departure under guidelines § 5K1.1 for his cooperation. Moreover, he contended that the district court erred in not granting a downward departure, even in the absence of such a motion. The 3rd Circuit rejected both contentions. First, prior case law does not require the government to act in good faith in refusing to request a downward departure. Second, in the absence of such a motion, the district court is without authority to depart downward. The district court did consider defendant’s cooperation, but did not think much of it. Thus, it sentenced him at the top of the guideline range. U.S. v. Gonzales, 927 F.2d 139 (3rd Cir. 1991).
3rd Circuit holds that plea agreement required consideration of defendant’s cooperation regardless of possibility of later 5K1.1 motion. (710) Pursuant to a plea agreement, the government agreed to bring defendant’s cooperation to the court at sentencing. Additionally, at its discretion, the government agreed to file a motion under 5K1.1, either at sentencing or up to one year later, permitting the district court to reduce the sentence below the guideline range. The sentencing court refused to take defendant’s cooperation into account when sentencing within the guideline range for fear that defendant would get double consideration for cooperation if the 5K1.1 motion was filed at a later time. The 3rd Circuit held that the court erred in refusing to consider defendant’s cooperation at initial sentencing and vacated for resentencing. U.S. v. Bruno, 897 F.2d 691 (3rd Cir. 1990).
4th Circuit says resentencing court need not use original method of calculating departure. (710) Defendant pled guilty to crack cocaine charges carrying a mandatory minimum sentence of 120 months. His guideline range was 121-151 months, but the district court departed down for substantial assistance and sentenced him to 97 months. Defendant sought resentencing after the adoption of Amendment 706, which reduced the offense level for many crack offenses. The court resentenced defendant to 96 months, one month less than his original sentence, in the belief that it was the lowest sentence that could be imposed. The court noted that it had previously valued defendant’s substantial assistance at 20 percent; therefore, it imposed a comparable downward departure of 20 percent. The Fourth Circuit held that the district court erred in finding that it was required to use the same method for departure that it used at the initial sentencing. A sentencing court may use any reasonable method in calculating a downward departure during resentencing and is not limited by any specific method previously used. U.S. v. Fennell, 592 F.3d 506 (4th Cir. 2010).
4th Circuit rejects reduction based on crack amendment despite substantial assistance departure. (710) Defendant was convicted of crack charges. His offense level was 41, resulting in a guideline range of 360 months to life. The district court ruled that defendant was not entitled to relief under 18 U.S.C. § 3582(c)(2) because Amendment 706 did not lower defendant’s applicable guideline range. Even with an offense level of 39 his guideline range remained 360 months to life. Defendant pointed out that he received a 5K1.1 downward departure, and his sentence was “based on a sentencing range” of 168-210, corresponding to an offense level of 32. The Fourth Circuit agreed that defendant was not entitled to relief under § 3583(c)(2). A reduction is not authorized if amendment 706 “does not have the effect of lowering the defendant’s applicable guideline range.” A downward departure under § 5K1.1 is an authorized departure “from the guidelines” based on the defendant’s substantial assistance. It does not provide a Guidelines range of its own but rather a departure from the Guidelines range. Defendant’s “applicable guideline range” was and remained 360 months to life. U.S. v. Lindsey, 556 F.3d 238 (4th Cir. 2009).
4th Circuit holds that government does not violate anti-gratuity statute by offering leniency for testimony. (710) Defendant argued that the government’s testimony against him was obtained from co-conspirators in exchange for the government’s promises of leniency, in violation of 18 U.S.C. § 201(c)(2). The Fourth Circuit joined the unanimous conclusion of other circuit courts that have ruled over the past year that the government does not violate § 201(c)(2) by granting immunity or leniency or entering into plea agreements to obtain testimony. The term “whoever” as used in § 201(c)(2) does not include the United States acting in accordance with its statutory authority to use immunity, leniency and plea agreements to obtain truthful testimony. U.S. v. Richardson, 195 F.3d 192 (4th Cir. 1999).
4th Circuit says § 5K1.1 departure must be based solely on nature, extent and significance of assistance. (710) The government recommended a three-level substantial assistance departure under § 5K1.1 for both defendants. The district court disregarded the recommendation and, claiming a “rare instance” of “total discretion,” departed downward by 24 levels for Pearce to and 20 levels for Chapman. The Fourth Circuit held that there are two distinct limits on the district court’s discretion under § 5K1.1. First, the court may only consider the nature, extent, and significance of the defendant’s assistance. Second, the extent of the departure must be reasonable. In the present case, given the improper arguments made by Pearce’s counsel, the court’s response to them, the lack of any significant discussion of Pearce’s assistance, and the fact that the court failed to state in open court its reasons for its sentence, the district court most likely based its departure decision on factors unrelated to Pearce’s assistance to the government. Moreover, the 24-level departure was unreasonable, given that his assistance only led to the arrest of one individual. Chapman’s situation was similar, although there was significant discussion regarding his assistance. However, the extent of the 20-level departure was unreasonable. Chapman was involved in two sham drug transactions, each resulting in only a single arrest. U.S. v. Pearce, 191 F.3d 488 (4th Cir. 1999).
4th Circuit upholds use of mandatory minimum as starting point for departure. (710) Although defendant’s original guideline range was 188-235 months, he was subject to a statutorily required minimum sentence of 240 months under 21 U.S.C. § 841. Based on defendant’s substantial assistance, the government filed motions for downward departure under 18 U.S.C. § 3553(e) and USSG § 5K1.1. The district court granted the motion. Using 240 months as the starting point for calculating the extent of the departures, the court imposed a 188-month sentence. Defendant argued that after the court granted the § 3553(e) motion, he was no longer subject to the minimum sentence, and therefore the court should have used 188 months as the starting point for the § 5K1.1 departure. The Fourth Circuit rejected this argument, concluding that § 3553(e) allows for a departure from, not the removal of, a statutorily required minimum sentence. When § 3553(e) says the resulting sentence must be imposed in accordance with the sentencing guidelines, this means simply that the district court’s discretion in choosing a sentence after the government moves for a departure is constrained by the sentencing guidelines. U.S. v. Pillow, 191 F.3d 403 (4th Cir. 1999).
4th Circuit says prohibiting defendant from active cooperation with police was abuse of discretion. (710) Defendant pled guilty to possessing child pornography. As a condition of his release pending sentencing, the district court ordered defendant to cease his active cooperation in the police’s undercover investigation. As a result, defendant was unable to assist the government or qualify for a § 5K1.1 departure. The Fourth Circuit held that the prohibition on cooperation with police as a condition of release was an abuse of discretion. Such a prohibition might, in extraordinary circumstances, be appropriate to assure a defendant’s appearance or to protect the public, but there was no genuine argument that the condition was necessary here. The court felt that the prohibition would benefit the rehabilitation of defendant; however, that factor that is not specified in § 3142(c)(1)(B). Further, the court improperly frustrated defendant’s desire to cooperate in order to qualify for a more favorable sentencing treatment, and the government’s hope that he would aid in their investigative efforts. The Sentencing Commission did not consider the possibility that a court might prohibit a defendant from cooperating, and therefore this might be a proper ground for a downward departure. U.S. v. Goossens, 84 F.3d 697 (4th Cir. 1996).
4th Circuit lacks jurisdiction to review extent of substantial assistance departure. (710) At sentencing, defendant had about 31 months left on a term of imprisonment imposed by a Texas federal court. The district court made a substantial assistance departure, tailoring the sentence so that it would expire at the same time as the Texas sentence. Defendant challenged the extent of the downward departure, claiming the court improperly focused on the undischarged Texas sentence rather than the nature and extent of his assistance. The Fourth Circuit held that it lacked jurisdiction to review the extent of a downward departure. The court conducted an individualized qualitative examination of defendant’s cooperation. The court properly took into account defendant’s unexpired Texas sentence, which was imposed for a related offense. Concurrent sentencing under § 5G1.3(b) protected defendant against having the length of his sentence multiplied by duplicative consideration of the same criminal conduct. U.S. v. Hill, 70 F.3d 321 (4th Cir. 1995).
4th Circuit rejects downward departure based on assistance to judicial system. (710) Defendant argued that the district court erred in finding that it lacked authority to depart downward based on his alleged assistance to the judicial system. The Fourth Circuit held that substantial assistance to the judicial system is not a proper ground for departure under § 5K2.0. Section 5K1.1 addresses the circumstances of a defendant who provides substantial assistance. The fact that the district court may not reward such assistance without a government motion does not diminish the adequacy of the consideration given by the Sentencing Commission to the appropriate treatment of cooperating defendants. There is no circumstance in which assistance to the judicial system would not also be assistance to the government. Putting a different label on a circumstance adequately considered by the Sentencing Commission, and calling it a different circumstance, does not transform it into an appropriate basis for departure. U.S. v. Dorsey, 61 F.3d 260 (4th Cir. 1995).
4th Circuit finds plea agreement did not require defendant be given opportunity to provide substantial assistance. (710) The government and defendant stipulated that, if requested to do so, defendant would provide the government with information regarding other criminal activity. In return, the government agreed to move for a downward departure if, in its sole discretion, it determined that defendant had provided substantial assistance. Defendant argued that the government breached the plea agreement by refusing to provide him with an opportunity to render substantial assistance and thus earn a downward departure. The Fourth Circuit disagreed, finding the plea agreement clearly granted the government discretion on whether to seek assistance from defendant and whether to move for a departure. Defendant did not allege that the government was motivated by any type of unconstitutional motive in failing to provide him with an opportunity to provide assistance. U.S. v. Lockhart, 58 F.3d 86 (4th Cir. 1995).
4th Circuit forbids reliance on information from cooperation agreement to deny substantial assistance departure. (710) Defendant’s plea agreement provided that he would cooperate with authorities, and that any evidence obtained from defendant would not be used against him in any further criminal proceedings. During defendant’s debriefing, he admitting selling about 400 pounds of marijuana per year since 1984. This information was not used to calculate his offense level because it was not known to the government before his cooperation. The government moved for a downward departure for substantial assistance, but the district court refused to depart because of defendant’s admission of involvement in heavy marijuana trafficking. The 4th Circuit vacated and remanded for resentencing. Although guideline section 1B1.8(a) only prohibits the use of such information in determining a defendant’s guideline range, Application Note 1 explains that it is the policy of the Sentencing Commission that a defendant not receive an in-creased sentence as a result of such information. Judge Wilkins dissented. U.S. v. Malvito, 946 F.2d 1066 (4th Cir. 1991).
4th Circuit refuses to review failure to depart downward despite government motion. (710) Defendant argued that the district court erred in refusing to depart downward based upon his substantial assistance after the government moved for such a departure. The 4th Circuit held that the district court was aware of its ability to depart based upon his assistance, but chose not to follow the recommendation of the government. Accordingly, the decision was not reviewable by the court of appeals. U.S. v. Graham, 946 F.2d 19 (4th Cir. 1991).
4th Circuit affirms refusal to depart downward despite government motion. (710) Defendant was originally sentenced within his guideline range. Thereafter, a co-conspirator was arrested and defendant agreed to testify against him. After defendant testified, the co-conspirator pled guilty. The government then filed a motion to reduce defendant’s sentence under Fed. R. Crim. P. 35(b), and the district court reduced it by 35 months. Defendant claimed that the district court erred in failing to make a downward departure at the time of his original sentence, particularly in light of the government’s motion under § 5K1.1 for a downward departure of 10 to 15 percent from the lowest guideline sentence and the district court’s granting of a reduction to a less deserving co-defendant. The 4th Circuit found no error in the district court’s refusal to grant a downward adjustment at the time of the initial sentence or the refusal to grant a reduction greater than 35 months. The fact that the government made a motion did not remove the decision to depart from the court’s discretion. The granting of a similar motion to a co-defendant was not sufficient to show abuse of discretion. U.S. v. Richardson, 939 F.2d 135 (4th Cir. 1991).
4th Circuit finds no breach of plea agreement in government’s failure to move for substantial assistance departure. (710) The 4th Circuit rejected the government’s contention that the mere fact that the government failed to move for the departure meant that the court lacked authority to depart on substantial assistance grounds. Since the plea agreement contained a contingent promise by the government to move for a downward departure, it was proper for the district court to determine whether the defendant satisfied his contractual obligations. In this case, defendant did not. An FBI agent testified that defendant was less than forthright in detailing his participation in the drug conspiracy, and that other officers involved believed as he did. The agent also testified that defendant refused to identify the person to whom defendant delivered 40 pounds of marijuana, and refused to acknowledge that certain lists found at his house were lists of drug buyers. U.S. v. Conner, 930 F.2d 1073 (4th Cir. 1991).
4th Circuit holds that substantial assistance guideline authorizes district courts to impose probation where it would otherwise be prohibited. (710) Defendant argued that several factors, including his age and cooperation with the government argued in favor of granting probation. The district court stated that probation was precluded by 18 U.S.C. § 3561(a)(1). The 4th Circuit disagreed and remanded the case so that the district court could consider whether probation was warranted. It held that 18 U.S.C. § 3553(e), which allows for departure below a minimum mandatory sentence to reflect a defendant’s substantial assistance to the government, also authorizes a court to impose a sentence of probation where it would otherwise be precluded. U.S. v. Daiagi, 892 F.2d 31 (4th Cir. 1989).
5th Circuit holds that § 3553(e) applies to mandatory minimum sentences under § 924(c) (1). (710) Defendant pled guilty to drug charges, and to possessing a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c). The government filed motions under § 5K1.1 and 18 U.S.C. § 3553(e) for a downward departure from the Sentencing Guidelines and the statutory minimum on both counts. The district court granted both motions, but ruled that it had no authority to depart below the statutory minimum of § 924(c)(1), so the court sentenced defendant to the statutory minimum of 60 months, to run consecutively with the sentence imposed on the drug count. The Fifth Circuit held that § 3553(e) applies to mandatory minimum sentences under § 924(e). A government motion made pursuant to § 3553(e), requesting that the court depart form the statutory minimums of § 924(e)(1), gives the district court the authority to depart from the § 924(c)(1) mandatory minimum. U.S. v. James, 468 F.3d 245 (5th Cir. 2006).
5th Circuit says courts may not consider non-assistance related factors in determining extent of § 5K1.1 departure. (710) Based on defendant’s “minimal” substantial assistance, the government filed motions under § 5K1.1 and 18 U.S.C. § 3553(c), recommending only a two-level reduction in offense level. The district court, however, granted defendant a 10-level reduction, which reduced defendant’s sentence by 67 percent from the minimum sentence for his calculated offense level, and nearly 28 percent from the statutory minimum of 10 years. The Fifth Circuit joined the majority of circuits holding that the extent of a § 5K1.1 or § 3553(e) departure must be based solely on assistance-related concerns. The district court here abused its discretion by considering non-assistance-related factors in determining the extent of the § 5K1.1 departure. Moreover, on the record, the extraordinary departure was not supported by the nature of defendant’s assistance. Defendant did not follow instructions from the FBI agents with whom he dealt and provided little helpful information. An extraordinary reduction must be supported by extraordinary circumstances. U.S. v. Desselle, 450 F.3d 179 (5th Cir. 2006).
5th Circuit holds that court had no authority to depart from statutory minimum sentence. (710) The district court found that defendant was responsible for a quantity of cocaine in excess of the 50 grams required to trigger a 10-year statutory minimum sentence, and that no legal basis existed for a downward departure. The court nonetheless refused to impose that sentence, citing U.S.S.G. § 5K2.0 and Koon v. U.S., 518 F.3d 81 (1996). The Fifth Circuit joined all other circuits that have addressed this issue to conclude that the procedures set forth in 18 U.S.C. § 3553(e) and § 3553(f) are the exclusive routes to depart below a statutory minimum sentence. Thus, a district court may impose a sentence below a statutory minimum for a drug crime only if (1) the government makes a motion pursuant to § 3553(e) asserting the defendant’s substantial assistance to the government; or (2) the defendant meets the “safety valve” criteria set forth in § 3553(f). Here, the government did not move for a substantial assistance departure, and defendant did not challenge the constitutionality of the government’s failure to so move. Moreover, the safety valve provision was inapplicable here because defendant was convicted of under 18 U.S.C. § 860, which is not listed under the safety valve provision. U.S. v. Phillips, 382 F.3d 489 (5th Cir. 2004).
5th Circuit finds error in departure methodology was harmless. (710) The district court originally departed under § 5K1.1 from a guideline range of 120-135 months to a sentence of 108 months. At resentencing after a successful appeal, the district court found defendant’s guideline range was 70-87 months. The court noted that its previous § 5K1.1 departure had been 10% of the “guideline sentence,” or about one offense level. Intending to duplicate that departure, the court reduced defendant’s offense level by one, producing a guideline range of 63-78 months. The court imposed a 72-month sentence. Defendant filed a Rule 35(c) motion to correct his sentence, arguing that the new 72-month sentence was not a 10% departure from the minimum guideline sentence of 70 months, and in fact, fell within the 70-87 month guideline range. The Fifth Circuit agreed, but found the error harmless. The district court’s methodology of reducing defendant’s offense level was flawed because it did not ensure that the resulting sentence was a departure from the guideline range. The sentence imposed was not consistent with the court’s statement that it was granting the government’s § 5K1.1 motion. However, the error was harmless because the court was aware of its authority to depart, imposed the sentence it saw fit, and had the discretion to impose the sentence it actually imposed. U.S. v. Hashimoto, 193 F.3d 840 (5th Cir. 1999).
5th and 6th Circuits hold gratuity statute does prohibit plea bargain for testimony. (710) Defendant argued that the government violated the federal gratuity statute, 18 U.S.C. § 201(c)(2), when it made promises of leniency to co-defendants and cooperating witnesses in exchange for their testimony against defendant. Defendant relied on the panel opinion in U.S. v. Singleton, 144 F.3d 1343 (10th Cir. 1998) before it was vacated by the en banc court in U.S. v. Singleton, 165 F.3d 1297 (10th Cir. 1999) (en banc), The Sixth Circuit rejected the argument, holding that the gratuity statute does not apply to the government. A canon of statutory instruction says that the general words of a statute do not include the government or affect its rights unless the text of the statute expressly includes the government. Such an interpretation would fly in the face of other statutes, including the Sentencing Guidelines, that explicitly permit federal prosecutors to move for departures where a defendant has provided substantial assistance. In an opinion filed the same day, the Fifth Circuit also rejected the panel opinion in Singleton. See U.S. v. Webster, 162 F.3d 308 (5th Cir. 1998); U.S. v. Ware, 161 F.3d 414 (6th Cir. 1998).
5th Circuit rules § 5K1.1 is not ultra vires act of Sentencing Commission. (710) Defendant claimed the Sentencing Commission exceeded its authority when it promulgated § 5K1.1 as a policy statement, arguing that 28 U.S.C. § 994(n) mandates the creation of a guideline. The Fifth Circuit upheld the validity of § 5K1.1. Congress’ instructions to the Sentencing Commission fall into four general categories. Congress can instruct the Commission to issue guidelines, policy statements, or either a guideline or a policy statement, or it can instruct the Commission to implement a Congressionally determined policy in the guidelines as a whole. In § 994(n), Congress was not mandating a specific guideline for substantial assistance departures, it was instructing that the guidelines as a whole “reflect” the appropriateness of such a departure. Thus, § 5K1.1 is a proper response to Congress’ mandate. Moreover, even if § 994(n) does require a guideline, the Sentencing Commission promulgated such a guideline. In guideline § 1B1.1(i), the Commission specifically referred to part K of Chapter Five regarding departures, which includes § 5K1.1. Thus, § 5K1.1, in conjunction with § 1B1.1(i), would satisfy the directive for a guideline. U.S. v. Underwood, 61 F.3d 306 (5th Cir. 1995).
5th Circuit says plea agreement required giving defendant opportunity to provide substantial assistance. (710) Defendant’s plea agreement provided that he would plead guilty to exporting a stolen vehicle and the government would move for a § 5K1.1 departure if defendant provided substantial assistance. The court refused to accept defendant’s guilty plea because he maintained that he did not know that the vehicle was stolen. With the government’s consent, defendant then changed his plea to nolo contendere, and the written agreement was revised to reflect that the plea would be no contest rather than guilty. Because of defendant’s continued protestations of a lack of guilty knowledge, the government made no effort to determine whether he could furnish substantial assistance. The Fifth Circuit held that this breached the plea agreement. Defendant’s denial of knowledge that the vehicle was stolen did not excuse the government’s conduct. The government was aware of defendant’s claim when it agreed to the amended plea agreement. U.S. v. Laday, 56 F.3d 24 (5th Cir. 1995).
5th Circuit says extent of departure may be based on factors that do not support initial departure. (710) The government recommended § 5K1.1 substantial assistance departures to 24-30 months for each defendant. The district court refused to depart below 60 months because less culpable co-conspirators had received higher sentences. Defendants argued that since disparity among co-defendants is an improper ground for a departure, it is an improper basis for limiting a departure. The Fifth Circuit, disagreeing with U.S. v. Hall, 977 F.2d 861 (4th Cir. 1992), held that once a court validly departs, the guidelines do not limit the extent of the departure. Except where federal law specifically limits the district court’s authority, the guidelines do not disturb the traditional and almost complete deference afforded the district court in sentencing. Thus, the court had discretion to limit the departure based on disparity between co-defendants. U.S. v. Alvarez, 51 F.3d 36 (5th Cir. 1995).
5th Circuit lacks jurisdiction to review denial of government’s §5K1.1 motion. (710) Defendant argued that the district court erred in denying the government’s § 5K1.1 motion for a substantial assistance departure. The Fifth Circuit held that it lacked jurisdiction over the appeal. Defendant’s challenge to his sentence involved only dissatisfaction with the court’s refusal to grant a downward departure; it did not involve a legal error or misapplication of the guidelines. Because claims challenging the discretionary denial of downward departures do not fall within any of the categories listed in 18 U.S.C. § 3742(a), such claims are not subject to appellate review and should be dismissed for lack of jurisdiction. U.S. v. DiMarco, 46 F.3d 476 (5th Cir. 1995).
5th Circuit says court not required to grant government’s § 5K1.1 motion. (710) Defendant argued that the district court erred in denying the government’s § 5K1.1 motion for a substantial assistance departure. The Fifth Circuit held that the court did not violate the law or abuse its discretion in refusing to grant the government’s motion. The decision whether to grant a § 5K1.1 motion is committed to the discretion of the sentencing court. Here, the district court properly denied the motion based on defendant’s past record and the discovery of ammunition and marijuana at his house while the instant charges were pending. U.S. v. Franks, 46 F.3d 402 (5th Cir. 1995).
5th Circuit remands because court may not have exercised discretion over substantial assistance departure. (710) The district court accepted the government’s recommendation for a 10-month downward departure under § 5K1.1, but it rejected defendant’s request for a further reduction, stating that although technically it had the power to make the reduction, as a matter of policy it did not make them. The 5th Circuit remanded because the court may not have independently exercised its discretion to determine the extent of the downward departure. The district court has a duty to independently evaluate each defendant’s case before determining the propriety and extent of any departure. An acknowledgment of the power to deny the government’s motion, or to deviate from its recommendation, does not acquit the court of its responsibilities. U.S. v. Johnson, 33 F.3d 8 (5th Cir. 1994).
5th Circuit refuses to apply amendment retroactively where defendant received substantial downward departure. (710) Based on the guideline amendment that retroactively excluded byproducts of drug manufacturing from drug quantity, defendant moved to modify her sentence under 18 U.S.C. § 3582(c)(2). She also claimed that the district court erroneously assumed that she was responsible for the type of methamphetamine that carries a higher offense level. The 5th Circuit upheld the court’s refusal to reduce defendant’s sentence, since she was already the beneficiary of a substantial § 5K1.1 downward departure. Application of § 3583(c)(2) is discretionary. Section 1B1.10(d) also states that a reduction based on the retroactive amendment of a guideline “may” be considered. There was no abuse of discretion. Defendant’s claim that she should have been sentenced based on L-methamphetamine was not cognizable under § 3582(c)(2). U.S. v. Shaw, 30 F.3d 26 (5th Cir. 1994).
5th Circuit says substantial assistance motion did not entitle defendant to downward departure. (710) Defendant argued that he supplied substantial assistance, as evidenced by the government’s § 5K1.1 motion, and therefore should have received a downward departure. The 5th Circuit held that the government’s § 5K1.1 motion did not automatically entitle defendant to a downward departure. The decision to grant a substantial assistance departure is committed to the sound discretion of the sentencing court. U.S. v. Miro, 29 F.3d 194 (5th Cir. 1994).
5th Circuit rejects sentence modification for defendant’s later refusal to cooperate. (710) The district court originally granted the government’s motion for a downward departure based on defendant’s substantial assistance. Defendant then refused to testify against his co-conspirators as required by his plea agreement. The district court resentenced defendant within the guideline range that was applicable before the downward departure. The 5th Circuit vacated the second sentence, holding the district court lacked authority to modify defendant’s term of imprisonment. The erroneous assumption that he would testify for the government, was not an error within the meaning of Rule 35(c). U.S. v. Lopez, 26 F.3d 512 (5th Cir. 1994).
5th Circuit rules that § 5K1.1 authorizes departure below mandatory minimum. (710) The 5th Circuit held that a court may depart below a mandatory minimum sentence regardless of whether the government’s departure motion is made under § 5K1.1 or § 3553(e). Section 5K1.1 governs all departures from guidelines sentencing for substantial assistance, and its scope includes departure from mandatory minimum sentences permitted by 18 U.S.C. § 3553(e). U.S. v. Hernandez, 17 F.3d 78 (5th Cir. 1994).
5th Circuit says sentence below mandatory minimum was downward departure. (710) Defendant’s offense carried a statutory minimum penalty of 20 years, but pursuant to a plea bargain the government recommended an 18-year sentence because of defendant’s assistance. The district court imposed an 18-year sentence, rejecting defendant’s request for a sentence within the guideline range that would have been applicable had the offense not been subject to a statutory minimum sentence. The 5th Circuit affirmed, rejecting defendant’s claim that the district court impermissibly departed upward by sentencing above the guideline range that would have applied absent a statutory minimum. The 18-year sentence was a downward departure. Under section 5G1.1(b), the statutory minimum was the guideline sentence regardless of whether the government moved for a downward departure. U.S. v. Santa Lucia, 991 F.2d 179 (5th Cir. 1993).
5th Circuit holds that district court was required to rule on government’s section 5K1.1 motion prior to sentencing. (710) The 5th Circuit held that the district court erroneously withheld a ruling on the government’s motion under section 5K1.1 until after sentencing. A district court is required to rule on a government’s section 5K1.1 motion before it imposes a sentence. Section 5K1.1 operates at sentencing, while Fed. R. Crim. P. 35(b), under which the government may move to resentence a defendant to reflect substantial assistance rendered after the original sentence, operates after sentence has been imposed. A refusal to rule on a section 5K1.1 motion conflicts with this temporal framework. Postponing a section 5K1.1 ruling would vest the district court with the discretion to resentence which was taken away at the time the sentencing guidelines took effect. Amendment to Rule 35 effective the same date as the guidelines removed a sentencing court’s discretion to resentence on its own motion. U.S. v. Mitchell, 964 F.2d 454 (5th Cir. 1992).
5th Circuit rules defendant has no right to hearing to determine entitlement to substantial assistance departure. (710) The 5th Circuit found no error in the district court’s refusal to hold an evidentiary hearing to determine whether defendant was entitled to a downward departure for substantial assistance. First, a government motion is a prerequisite to any downward departure. In this case the government refused to file such a motion because defendant did not provide substantial assistance. Thus, the district court did not err in refusing to hold an evidentiary hearing on the matter. U.S. v. Campbell, 942 F.2d 890 (5th Cir. 1991).
5th Circuit holds that district court need not make downward departure in response to government’s 5K1 motion. (710) Because of defendant’s substantial assistance, the government filed a motion pursuant to guidelines § 5K1.1, requesting the sentencing court to make a downward departure from the applicable guideline sentence. The sentencing court did not expressly do so, and the 5th Circuit rejected defendant’s argument that once the government made such a motion, he was entitled to a downward departure as a matter of right. The 5th Circuit also found that the sentencing court did not abuse its discretion in refusing to grant the downward departure. Although the 140 month sentence defendant received was more than twice the statutory minimum, it was within the lower end of the applicable guidelines range. U.S. v. Damer, 910 F.2d 1239 (5th Cir. 1990).
5th Circuit upholds denial of substantial assistance departure despite plea agreement. (710) Defendant argued that the government violated the plea agreement by not recommending a downward departure in exchange for his testimony against his codefendant. The government responded by arguing that the defendant was untruthful with the agents. However, the government also “cleverly remedied the situation by making a motion for downward departure in the event that the district court found “substantial compliance” on the part of the appellant.” The district court held a hearing, and concluded that the appellant did not provide “substantial assistance.” The 5th Circuit affirmed, holding that the district court “correctly determined the lack of veracity in defendant’s assistance and thereby denied both side’s motions.” U.S. v. Fields, 906 F.2d 139 (5th 1990).
5th Circuit holds defendant’s cooperation did not warrant departure where he had already benefitted by reduced charge. (710) A convicted LSD conspirator argued that the district court should have departed downward from the guidelines because he cooperated with the government. Under § 5K1.1, the government can move for a downward departure based on the defendant’s cooperation. Here, the government recognized the defendant’s cooperation by limiting the indictment to a single conspiracy count rather than additional offenses. Both the government and the court acknowledged this fact during sentencing. The 5th Circuit held that it is entirely proper for a defendant to receive the benefit of his cooperation at the charging end of the case. It was not illegal or an abuse of discretion for the court to fail to grant further leniency at the sentencing end under these circumstances. U.S. v. Taylor, 868 F.2d 125 (5th Cir. 1989).
6th Circuit holds career offender was not eligible for crack sentence reduction. (710) The district court denied defendant’s 18 U.S.C. § 3582 motion to reduce his crack sentence because his sentence was based on the career offender guideline, § 4B1.1, rather than the crack guideline, § 2D1.1. Defendant argued that the Supreme Court’s Booker decision made all guidelines discretionary, so his career offender status should not bar a reduction. The Sixth Circuit rejected the argument. The circuit has consistently held that a defendant convicted of crack-related charges but sentenced as a career offender is not eligible for a reduction based on Amendment 706. Nor did the fact that defendant received a downward departure for substantial assistance make him eligible for a reduced sentence under § 3582. U.S. v. Payton, 617 F.3d 911 (6th Cir. 2010).
6th Circuit says defendant who received substantial assistance departure from mandatory minimum was not eligible for crack reduction. (710) Defendant faced a mandatory minimum sentence of ten years, but based on the government’s substantial assistance motion, he received a 70-month sentence. He later moved for a reduction under 18 U.S.C. § 3582(c)(2) based on the recent crack amendments. The Sixth Circuit found that while defendant’s sentence was “based on” a guideline range that had been lowered, he was not eligible for a reduction because that guideline range was not “applicable.” A reduction must be “consistent with the applicable policy statements issued by the Sentencing Commission.” § 3582(c)(2). One of those policy statements, § 1B1.10(a)(2), provides that a reduction is not authorized under § 3582(c)(2) if the amendment “does not have the effect of lowering the defendant’s applicable guideline range.” The appropriate starting point for calculating a downward departure under 18 U.S.C. § 3553(e) is the mandatory minimum sentence itself. The guideline range prescribed by § 2D1.1 was not “applicable” because it was not the correct point from which the substantial assistance departure should have been measured. U.S. v. Hameed, 614 F.3d 259 (6th Cir. 2010).
6th Circuit says crack amendment did not affect career offender’s sentence. (710) Under the Drug Quantity Table in effect at defendant’s sentencing, his crack cocaine offense carried a base offense level of 28. However, he qualified as a career offender, which resulted in an offense level of 37. After receiving a three-level reduction for acceptance of responsibility, his guideline range was 262-327 months. The government filed a § 5K1.1 motion for a substantial assistance reduction, and the district court sentenced him to 140 months. Defendant later moved under § 3582(c)(2) for a sentence reduction based on Amendment 706, which reduced by two the base offense level for most crack cocaine offenses. Nevertheless, because defendant’s sentence was based on the career offender guideline rather than the crack cocaine guideline, the Sixth Circuit held that the district court lacked authority to resentence under § 3582(c)(2. Defendant would have been subject to the same sentencing range even if Amendment 706 had been in effect at the time of his original sentencing. U.S. v. Williams, 607 F.3d 1123 (6th Cir. 2010).
6th Circuit says court cannot reduce crack sentence of defendant subject to mandatory minimum. (710) Defendant was convicted of crack cocaine charges, resulting in a guideline range of 235-293 months. However, defendant was also subject to a mandatory minimum sentence of 240 months, so his effective guideline range was 240-293 months. The court granted the government’s motion for a sentence below the mandatory minimum, and sentenced defendant to 108 months. Years later defendant moved under § 3582(c)(2) for a sentence reduction based on Amendment 706, which reduced the offense level for most crack offenses by two levels. The district court ruled that because defendant was subject to the mandatory minimum, it lacked authority to reduce his sentence. The Sixth Circuit agreed. Defendant was not sentenced based on a guideline range that was subsequently reduced. His sentence was based on the mandatory minimum imposed by 21 U.S.C. § 841(b)(1)(A), which remained unchanged by Amendment 706. U.S. v. Johnson, 564 F.3d 419 (6th Cir. 2009).
6th Circuit reverses where court may not have listened to defendant’s substantial assistance arguments. (710) Defendant was originally sentenced to 156 months. The case was remanded for resentencing in light of Booker, and the district court resentenced him to 120 months. Defendant argued that the sentence was procedurally unreasonable because the court did not consider his request for a downward departure or a variance. However, the district court did consider defendant’s argument that his criminal history and career offender status overstated the seriousness of his criminal history, and defendant’s argument for a variance based on his rehabilitative efforts while in prison was foreclosed by U.S. v. Worley, 453 F.3d 706 (6th Cir. 2006), abrogation recognized by U.S. v. Gapinski, 422 Fed. Appx. 513 (6th Cir. 2011) (unpublished), No. 09-2267. Nevertheless, the Sixth Circuit ultimately agreed that the sentence was procedurally unreasonable because it was unclear whether the judge listened to defendant’s argument for a lower sentence based upon substantial assistance. U.S. v. Gapinski, 561 F.3d 467 (6th Cir. 2009).
6th Circuit finds government was required by plea agreement to advise the court whether defendant’s assistance was substantial. (710) Defendant’s plea agreement stated: “If, in the sole discretion of the United States, the defendant provides substantial assistance, the United States will make a motion for downward departure pursuant to section 5K1.1 of the Sentencing Guidelines, or 18 U.S.C. § 3553(e), or both …” At sentencing, the government did not move for a downward departure. The court denied defendant’s motion to compel the government to move for a departure, ruling that because the plea agreement gave the government complete discretion whether to file a substantial assistance motion, its only ground for reviewing the government actions was an unconstitutional motive, which defendant did not allege. The Sixth Circuit remanded. The determinative issue was not whether the government possessed complete discretion to determine if defendant provided substantial assistance, but whether the government made a determination regarding the substantiality of defendant’s assistance. On the record here, the government did not make such a determination. The panel remanded for a new hearing during which the government shall advise the district court of its factual determination, made in its sole discretion, of whether defendant’s assistance was “substantial.” U.S. v. Villareal, 491 F.3d 605 (6th Cir. 2007).
6th Circuit holds plea agreement authorized downward departure from statutory minimum. (710) Defendant pled guilty to firearms and drug charges. The drug charges carried a mandatory minimum sentence of 60 months’ imprisonment. The government filed a § 5K1.1 motion, requesting a one-level departure. The district court imposed a 30-month sentence. The Sixth Circuit affirmed, holding that the plea agreement authorized the district court to depart below the 60-month mandatory minimum. Generally, a court may not depart below the statutory minimum unless the government moves for such a departure under either 18 U.S.C. § 3553(e) or § 3553(f). However, at the plea hearing, the judge concluded that the plea agreement allowed him to depart below the statutory minimum, and the AUSA did not object to this interpretation. The judge then informed defendant that the agreement allowed him to “avoid the mandatory five year punishment.” Once again, the AUSA did not object to this conclusion. The agreement itself gave the court “complete discretion” to determine the appropriate sentence reduction. Although there was no cite to § 3553(e) or a quote from its text, the language in the plea agreement, and the government’s agreement to this interpretation, could not have been more explicit. U.S. v. McIntosh, 484 F.3d 832 (6th Cir. 2007).
6th Circuit says that, in departing from mandatory minimum, court can only consider substantial assistance, not other factors. (710) Pursuant to the government’s motion for a downward departure under 18 U.S.C. § 3553(e) and U.S.S.G. § 5G1.1, the district court sentenced defendant to 180 months, five years less than the statutory minimum sentence. Defendant argued that the district court erred in failing to consider his sentencing memorandum in which he urged the court to consider his family background as well as studies regarding the effects of incarceration on children. The Sixth Circuit ruled that the district court could not properly consider the information in the sentencing memo in determining whether to depart or the extent of the departure since such information did not relate to defendant’s assistance. Substantial assistance departures must be based solely upon the substantial assistance rendered, and only factors related to a defendants cooperation may influence the extent of a departure pursuant to § 3553(e). U.S. v. Bullard, 390 F.3d 413 (6th Cir. 2004).
6th Circuit says court misunderstood authority to impose sentence between mandatory minimum and guideline range. (710) Defendant was subject to a mandatory minimum sentence of 120 months. If the mandatory minimum was not applicable, his guideline range would have been 63-78 months. The government made a motion for a substantial assistance departure under 18 U.S.C. § 3553(b)(1) and U.S.S.G. 5K1.1. The district court imposed a 120-month sentence, noting that the government’s request would reduce defendant’s sentence from 120 months to a range of 63-78 months. The Sixth Circuit held that the district court apparently misunderstood its authority to impose a sentence below the mandatory minimum but above the otherwise applicable guideline range. The court stated that it had to choose between two alternatives: a sentence of 120 months, or a sentence in the range of 63-78 months. The court indicated that it lacked authority to impose a sentence in the intermediate range of 78-120 months. This understanding of the law is contrary to U.S. v. Stewart, 306 F.3d 295 (6th Cir. 2002). The error was not harmless, because there was a chance that the court’s ultimate sentence was influenced by its understanding of its sentencing options. U.S. v. Schray, 383 F.3d 430 (6th Cir. 2004).
6th Circuit holds that mandatory minimum was proper starting point for § 3553(c) departure. (710) Although defendant’s original guideline range was 51-71 months, his prior drug convictions and the court’s drug quantity finding triggered a mandatory minimum sentence of 120 months. Based on the government’s substantial assistance motion under 18 U.S.C. § 3553(e), the district court departed below that statutory minimum and imposed a sentence of 82 months. Defendant argued that, once the court grants a § 3553(e) motion, the resulting sentence may be no higher than the upper end of the otherwise applicable guideline range. The Sixth Circuit disagreed, holding that the appropriate starting point for the downward departure is the mandatory minimum. This is in accord with other circuits to decide the issue. See U.S. v. Hayes, 5 F.3d 292 (7th Cir. 1993). “To hold otherwise would afford defendants a double benefit by first permitting them to avoid a higher mandatory minimum sentence and then granting a departure from an even lower sentencing guideline range.” U.S. v. Stewart, 306 F.3d 295 (6th Cir. 2002).
6th Circuit holds that § 5K1.1 applies only to cooperation involving the investigation or prosecution of another person. (710) After being arrested for selling tablets containing controlled substances to an undercover agent, defendant confessed that when he worked as a machinist for a lab, he had stolen the tablets by secreting them in his sock. Defendant described in detail how he removed the tablets and described the lax security procedures at the lab. As a result of his disclosures, the lab implemented various security upgrades. Defendant moved for a downward departure under § 5K2.0 based on the significant cooperation he provided to DEA investigators in their effort to upgrade the lab’s security procedures. The district court found that it lacked the authority to depart in the absence of a government motion under § 5K1.1. The Sixth Circuit held that § 5K1.1 applies only to substantial assistance in connection with “the investigation and prosecution of another individual who has committed a crime.” Where the substantial assistance is directed other than toward the prosecution of another person, the limitation of § 5K1.1 (i.e. the requirement of a government motion as a triggering mechanism) does not apply. Thus, no government motion was required to consider defendant’s departure motion. The government contended that defendant’s statements to authorities were nothing more than an acceptance of his responsibility for his own conduct, which was already taken into account when he received a reduction under § 3E1.1. However, there was a basis in the record to conclude that defendant’s cooperation extended beyond the garden variety acceptance of responsibility, and the district court should make this finding in the first instance. U.S. v. Truman, 304 F.3d 586 (6th Cir. 2002).
6th Circuit says defendant did not make threshold showing of unconstitutional motive. (710) Defendant claimed that the government frustrated his ability to cooperate and thus qualify for a downward departure. He further alleged that the government acted in bad faith. The Sixth Circuit rejected the argument since he raised the claim for the first time on appeal. Further, bad faith is not the standard of review in a downward departure case. A hearing is not needed unless the government’s refusal to recommend a downward departure is based on an unconstitutional motive. Defendant did not make a threshold showing of an unconstitutional motive. Indeed, the district court properly found the government fully complied with the terms of the plea agreement. The plain language of the plea agreement made clear that the government did not have any obligation to release defendant on bond, interview defendant any set number of times, or administer a lie detector test. A review of the plea agreement confirmed this. The government interviewed defendant twice for his cooperation, and when it concluded that substantial assistance was not forthcoming, properly declined to recommend a departure. U.S. v. Hunt, 205 F.3d 931 (6th Cir. 2000).
6th Circuit finds no jurisdiction to review offsetting substantial assistance and criminal history departures. (710) The government moved for a downward departure based on defendant’s substantial assistance. The district court recognized defendant’s substantial assistance, but also found that his criminal history category did not adequately reflect the seriousness of his past criminal conduct. It found that any benefit from defendant’s substantial assistance to the prosecution was offset by the underrepresented criminal history. Accordingly, the court sentenced him at the bottom of the applicable guideline range. The Sixth Circuit held that it lacked jurisdiction to review the refusal to depart. When the district court is aware of its discretion to depart from the guidelines, failure to do so is not appealable. U.S. v. Welch, 97 F.3d 142 (6th Cir. 1996).
6th Circuit says refusal to depart was based on defendant’s assistance, not psychiatric history. (710) Defendant pled guilty to possessing an unregistered firearm. The district court rejected the government’s § 5K1.1 motion and sentenced defendant to 21 months. Defendant argued that the court improperly rejected the departure and imposed a 21-month sentence because of his psychiatric history. The Sixth Circuit found that the court’s reasons for the 21-month sentence were proper. The district court’s failure to depart downward was not an appealable issue. Although the district court expressed its concern over defendant’s serious psychological problems, it also said that it was not convinced that defendant’s help would justify a § 5K1.1 departure. Thus, the court considered and assessed defendant’s assistance, and determined that it did not justify a departure. The court did not abuse its discretion. U.S. v. Organek, 65 F.3d 60 (6th Cir. 1995).
6th Circuit finds refusal to move for departure not motivated by improper considerations. (710) Defendant argued that the government failed to provide him with an opportunity to give substantial assistance, and therefore the district court should have granted his motion for a § 5K1.1 departure. The 6th Circuit found no error since defendant did not allege that the government was motivated by unconstitutional considerations. Defendant also made no attempt to show that the oral plea agreement obligated the government to move for a downward departure. The government stated that its refusal was based on defendant’s failure to provide substantial assistance. The district court properly denied defendant’s motion. U.S. v. Williams, 53 F.3d 769 (6th Cir. 1995).
6th Circuit says court may not limit § 5K1.1 departure based on possibility of future Rule 35 motion. (710) Defendant argued that the court improperly reduced the extent of his § 5K1.1 departure based on the possibility that the government might later file a Rule 35 motion for a further departure. The Sixth Circuit remanded because it was unclear whether the court properly exercised its discretion, or improperly considered the possibility of a future Rule 35 motion. A sentencing judge has an obligation to respond to a §5K1.1 motion without regard to future events, and may not postpone action on a § 5K1.1 motion. U.S. v. Bureau, 52 F.3d 584 (6th Cir. 1995).
6th Circuit refuses to review rejection of government motion for substantial assistance departure. (710) The 6th Circuit refused to review the district court’s rejection of the government’s section 5K1.1 motion. This was not a case where the district court failed to exercise its discretion or failed to give credence to the government’s evaluation of the extent of defendant’s assistance. Rather, the colloquy with the prosecutor revealed that the district court considered and understood the substance of the government’s motion, but, finding the government’s rationale unpersuasive, chose not to exercise its discretion to depart downward. U.S. v. Dellinger, 986 F.2d 1042 (6th Cir. 1993).
6th Circuit holds that section 3553(e) substantial assistance departure allows complete departure from the guidelines. (710) The 6th Circuit held that where the government makes a motion for a downward departure under 18 U.S.C. section 3553(e) based upon a defendant’s substantial assistance, a sentencing court has the authority to depart completely from the guidelines. However, such a departure must be based solely upon the substantial assistance rendered by the defendant and the district court cannot impose a sentence which is either specifically prohibited by statute or unreasonable. For example, here defendant pled guilty to an attempt under 21 U.S.C. section 846, the object of which was the commission of a drug offense prohibited by 21 U.S.C. section 841(a)(1). Under 21 U.S.C. section 841(b)(1)(B), the district court would be prohibited from departing downward to impose a sentence of probation or suspending the sentence entirely. U.S. v. Snelling, 961 F.2d 93 (6th Cir. 1991).
6th Circuit finds prosecutor’s refusal to move for downward departure did not entitle defendant to withdraw plea. (710) The plea agreement provided that if the defendant’s information and testimony merited it, the government would move for a downward departure. But after defendant testified, the government advised him that it would not seek a downward departure because he failed to identify two co-defendants at trial and his testimony failed to include most of the facts he had earlier disclosed. The 6th Circuit found that the government’s decision did not entitle defendant to withdraw his plea. Defendant did not attempt to withdraw his plea until after his testimony led the government to announce its intention. He did not maintain his innocence. Defendant was familiar with the criminal justice system and admitted his guilt. He did not fulfill his obligations under the plea agreement and could not now profit from that breach. U.S. v. Head, 927 F.2d 1361 (6th Cir. 1991).
6th Circuit holds that § 5K1.1 permits downward departures from statutory minimum sentences but not “mandatory” sentences. (710) Defendant pled guilty to distributing crack cocaine and carrying a firearm during a drug trafficking offense. Pursuant to a government motion, the district court departed downward for defendant’s substantial assistance to the government, lowering defendant’s offense level from 22 to 13 for the distribution charge. However, it refused to depart downward on the 18 U.S.C 924(c) firearms charge, which carried a mandatory 60 month sentence. Defendant received a 12 month sentence on the distribution charge, to run consecutively to the 60 month sentence. The 6th Circuit upheld the district court’s refusal to depart downward on the 924(c) charge. 18 U.S.C 3553(e) and § 5K1.1 only authorize “downward departures from statutory ‘minimum’ sentences, not statutory mandatory sentences.” “Section 924(c) creates a mandatory sentence.” U.S. v. Dumas, 934 F.2d 1387 (6th Cir. 1990), amended, U.S. v. Reed, 934 F.2d 1339 (6th Cir. 1991).
7th Circuit permits considering career offender guideline despite departure. (710) Defendant was a career offender with a guideline range of 188-235 months. The district court, however, determined that it did not want to apply the career offender classification, and sentenced defendant to 100 months. Without the career offender consideration, defendant’s guideline range was 100-125 months. With a 30 percent reduction under § 5K1.1 for his substantial assistance to the government, he argued that the only reasonable sentence would fall within the 70-85 month range. The Seventh Circuit held that the 100-month sentence based on defendant’s involvement in a bank robbery was within the district court’s discretion. The fact that the district court found that the full impact of the career offender classification was inappropriate for defendant did not negate it as a consideration, nor did it alter the guidelines range to the lower amount. The court could decide not to apply the full amount of the career offender increase, but still consider that status or his criminal history in determining an appropriate middle ground. That is precisely what happened here, and was a proper exercise of the court’s discretion. U.S. v. Jones, 739 F.3d 364 (7th Cir. 2014).
7th Circuit remands for court to give adequate consideration to defendant’s cooperation. (710) Defendant, a pimp, was involved in the shooting death of another pimp. He pled guilty in state court to reckless homicide, and was sentenced to 20 years. In his state homicide proceeding, defendant cooperated and testified against another defendant. The state’s attorney wrote a letter describing defendant’s cooperation as “meaningful and significant.” Defendant was then convicted in federal court of prostitution charges. He again cooperated, and accepted responsibility. His guideline range was 360 months to life, but the government asked the court to impose a 300-month sentence to run concurrently with his 29-year state sentence. Instead, the court imposed a 360-month sentence to run consecutively to the state sentence. The Seventh Circuit remanded, finding that the court did not give adequate consideration to defendant’s cooperation. The court discussed various extraneous factors, then stated it would grant the government’s motion by imposing a 360-month consecutive sentence, rather than a life sentence. At no point in the record did the judge explain why he had chosen not to follow the government’s recommendation of a concurrent sentence, or why he gave such little weight to defendant’s cooperation. The panel could not discern whether the court appreciated the severity of the sentence it imposed, and in particular its equivalence to the life sentence that it had purportedly rejected. U.S. v. Patrick, 707 F.3d 815 (7th Cir. 2013).
7th Circuit holds that it lacked jurisdiction to review extent of substantial assistance departure. (710) Defendant pled guilty to heroin conspiracy charges that carried a mandatory minimum sentence of five years. See 21 U.S.C. §§ 846, 841(b)(b)(1)(B). Her guideline range was 60-71 months, but the court granted the government’s substantial assistance motion under 18 U.S.C. § 3553(e), and sentenced her to 24 months. Although this was less than half the mandatory minimum and more than a year below the government’s most favorable recommendation, defendant appealed. The Seventh Circuit held that it lacked jurisdiction to review the contention. Valuing substantial assistance given as part of a cooperation agreement is a matter within the sentencing court’s discretion. Booker did not alter an appellate court’s limited jurisdiction under 18 U.S.C. § 3742(a). Various cases have concluded that challenging the extent of sentence reductions under Rule 35(b) would be frivolous, and there is no principled basis to distinguish sentence reductions given under Rule 35(b) from those given under § 3553(e). U.S. v. Spann, 682 F.3d 565 (7th Cir. 2012).
7th Circuit says opportunity for substantial assistance departure was adequate consideration for plea agreement. (710) As part of his plea agreement, defendant promised to cooperate with the government in return for a chance at a lower sentence. He also waived the right to appeal his conviction and sentence. The district court sentenced him to life imprisonment, the statutory minimum. Defendant argued on appeal that the plea agreement was unenforceable because he received no consideration in exchange for his guilty plea. Because of the mandatory life sentence, the only practical benefit defendant received was the government’s promise to consider making a § 5K1.1 motion. The Seventh Circuit ruled that the plea agreement and appellate waiver were enforceable. A promise to evaluate in good faith whether a defendant’s cooperation warrants a § 3553(e) motion provides sufficient consideration for a defendant’s guilty plea. Nothing in the record indicated that the government had an improper motive or acted irrationally in declining to move for a sentence reduction. U.S. v. Kilcrease, 665 F.3d 924 (7th Cir. 2012).
7th Circuit says retroactive crack amendment did not affect defendant who received substantial assistance departure below mandatory minimum. (710) Defendant pled guilty to possessing more than 50 grams of cocaine with intent to distribute. Based on the governments’ motions under USSG § 5K1.1 and 18 U.S.C. § 3553, the district court departed down from the mandatory minimum and sentenced defendant to 168 months. He later moved for a sentence reduction under 18 U.S.C. § 3582(c)(2), based on the recent retroactive crack amendments. The Seventh Circuit upheld the district court’s denial of the motion, ruling that defendant was ineligible for a sentence reduction. In U.S. v. Poole, 550 F.3d 676 (7th Cir. 2008), a case substantially similar to defendant’s, the court concluded that a defendant who was sentenced in accordance with the statutory minimum was ineligible for resentencing under 18 U.S.C. § 3582(c)(2). There was no principled basis to distinguish this case from Poole. U.S. v. Monroe, 580 F.3d 552 (7th Cir. 2009).
7th Circuit upholds use of offense level 43 as starting point for downward departure from life sentence. (710) Defendant was convicted of drug charges and, based on his two previous felony drug offenses, was subject to a mandatory minimum sentence of life imprisonment under 21 U.S.C. § 841(B)(1)(a). The government moved under 18 U.S.C. § 3553(e) for a downward departure from the mandatory minimum. The district court granted the departure, and following the government’s proposed reduction of four guideline ranges, reduced his offense level from level 43 to 34. The court then imposed a 262-month sentence. Defendant argued that the court erred in choosing level 43 as the starting point for its departure instead of 37, which is associated with the 360-months to life range in a criminal history category of VI. The Seventh Circuit held that the court’s decision to depart from defendant’s mandatory life sentence by starting at offense level 43 was proper. The guidelines go a step beyond the 360-months to life range and provide for a range of “life.” Because defendant was subject to the longest sentence a defendant can receive under the guidelines, his corresponding guideline range should reflect the same. U.S. v. Nelson, 491 F.3d 344 (7th Cir. 2007).
7th Circuit holds that court’s overemphasis on restitution and unspecified charitable works resulted in unreasonable sentence. (710) Defendant, the president of a federally insured bank, used his position to misappropriate bank funds for himself and his friend. Despite an advisory range of 41-51 months’ imprisonment, and the prosecutor’s recommendation of 24 months (in its § 5K1.1 motion), the district court sentenced him to just one day in prison, three years’ supervised release, and a $100,000 fine. The court found that there was no need to protect the public from defendant, that defendant had done unspecified “good works,” and there was no need to rehabilitate him or deter him from committing future crimes. Moreover, because the crime was money-motivated, the court thought that just punishment for defendant would be to hit him in the pocketbook. The Seventh Circuit reversed. First, the court did not explain why it granted the § 5K1.1 motion or how much of the reduced sentence was attributable to defendant’s substantial assistance as opposed to the other factors cited by the court. Second, although the court sufficiently considered the § 3553(a) factors, the court’s consideration of these factors resulted in an unreasonable sentence. Charitable works must be exceptional before they will support a more-lenient sentence – it is not unusual to find white collar defendants who are high-ranking executives involved as a leader in community charities and civic organizations. In addition, the amount of restitution defendant actually paid under the complex settlement agreement was unclear. The repayment of stolen funds figures into the adjustment for acceptance of responsibility, but only extraordinary efforts to make restitution support a reduced sentence. U.S. v. Repking, 467 F.3d 1091 (7th Cir. 2006).
7th Circuit rejects “standing order” requiring government to provide extra information as part of § 5K1.1 motion. (710) The district court issued a “standing order” requiring the prosecutor, as part of any § 5K1.1 motion, to provide the court with certain information, including a copy of a recommendation approved and signed by a supervisor of the law enforcement agency with whom defendant cooperated, a written recommendation of a supervisor in the office of the prosecutor, and a written report from the down-ward departure committee containing detailed information about the committee’s decision. The order noted that “[f]ailure to adhere to this policy will result in the motion being summarily denied without prejudice.” The government refused to provide the court with information about its deliberative process, and the district judge in turn failed to act on the government’s § 5K1.1 motion. The Seventh Circuit found that an appeal provided an adequate legal remedy for both defendant and the government, and thus an extraordinary writ such as mandamus was unnecessary. Defendant’s sentence was unlawful because the district court failed to exercise its discretion under U.S.S.G. § 5K1.1. At resentencing, the judge must not hold against defendant the prosecutor’s decision not to provide the information described in the standing order. Judges may not demand that litigants surrender evidentiary privileges as a condition of adjudication. Multiple privileges applied to most if not all of the matters described. Except with extraordinary justification, a judge may not inquire why or how the U.S. Attorney decided to file a § 5K1.1 motion. In addition, a district court may not limit the U.S. attorney’s authority to decisions that garner the support of each law-enforcement agency or the majority of some committee. U.S. v. Zingsheim, 384 F.3d 867 (7th Cir. 2004).
7th Circuit finds judge was aware of discretion to make § 5K1.1 departure at second resentencing. (710) Defendant originally had a guideline range of 360 months to life. The judge granted the government’s § 5K1.1 motion, and imposed a 300-month sentence. He successfully appealed his career offender status. At resentencing, the district court found that the new guideline range was 235 to 293 months. The court again departed downward under § 5K1.1, and imposed a 210-month sentence. Defendant later moved for resentencing under 18 U.S.C. § 3582(c)(2) based on a guideline amendment that changed the weight equivalency of a marijuana plant from 1000 grams to 100 grams. At the second resentencing, the district court found that defendant’s new guideline range was 151 to 188 months, and the court imposed a 188-month sentence. Defendant argued that the district court erred by failing to consider the government’s § 5K1.1 motion, and did not understand that it had the authority to grant a departure at the second resentencing. The Seventh Circuit disagreed. Although the judge never stated that she considered the § 5K1.1 motion in connection with the second resentencing, there was nothing in the record to suggest that she believed that she did not have the authority to depart. Article III judges are presumed to know the law. The judge had in fact exercised this discretion by granting § 5K1.1 departures on two previous occasions in this same case. U.S. v. Atkinson, 259 F.3d 648 (7th Cir. 2001).
7th Circuit says use of witnesses promised leniency for testimony does not violate anti-gratuity statute. (710) Relying on U.S. v. Singleton, 144 F.3d 1343 (10th Cir. 1998), on rehearing, 165 F.3d 1297 (10th Cir. 1999), defendant argued that the government violated the anti-bribery statute, 18 U.S.C. § 201(c)(2), by giving something of value to cooperating witnesses in exchange for their testimony. The Seventh Circuit, noting that all other circuits to have considered this issue have rejected Singleton, and that the Tenth Circuit itself as reconsidered its original position, see U.S. v. Singleton, 165 F.3d 1297 (10th Cir. 1999) (en banc), rejected the argument. U.S. v. Hardamon, 188 F.3d 843 (7th Cir. 1999).
7th Circuit says court may not depart from mandatory life sentence absent government motion or safety valve. (710) Defendant argued that, although his life sentence “technically conform[s] to the law,” it was unjust and should be vacated because there was insufficient evidence to support his convictions, his case was tried before an all-white jury, and his criminal history was relatively modest. The Seventh Circuit held that a downward departure was not possible because defendant’s life sentence was mandated by 21 U.S.C. § 841(b)(1)(A). A defendant can only receive a sentence below the statutory minimum if the government moves for a substantial assistance departure under 18 U.S.C. § 3553(e), or if the defendant qualifies for safety valve protection under 18 U.S.C. § 3553(f). U.S. v. Smallwood, 188 F.3d 905 (7th Cir. 1999).
7th Circuit holds that federal bribery statute does not bar testimony from witnesses promised immunity. (710) Relying on U.S. v. Singleton, 144 F.3d 1343 (10th Cir. 1998), on rehearing, 165 F.3d 1297 (10th Cir. 1999), defendant argued that 18 U.S.C. § 201(c)(2) barred the use of testimony from witnesses who were promised immunity from prosecution, or lower sentences, in exchange for their cooperation. In rejecting this argument, the Seventh Circuit noted that the Tenth Circuit en banc and five other circuits have come to a contrary decision. Moreover, long before Singleton, the Seventh Circuit held that 18 U.S.C. § 201(h), the predecessor to § 201(c)(2), does not require the exclusion of evidence obtained by a promise of immunity. U.S. v. Barrett, 505 F.2d 1091 (7th Cir. 1974). Unlike other courts, the Seventh Circuit did not hold that the “whoever” in § 201 does not include federal prosecutors. That approach, if taken seriously, would permit prosecutors to pay cash for favorable testimony. Rather, the court held that forgoing criminal prosecution (or securing a lower sentence) is not a “thing of value” within the meaning of § 201(c)(2). U.S. v. Condon, 170 F.3d 687 (7th Cir. 1999).
7th Circuit finds no breach where government concurred that defendant provided assistance. (710) Defendant pled guilty to conspiring to commit theft from a program receiving federal funds. As part of the plea agreement, the government promised to move for a sentence of 66% of the low end of the applicable guideline range based on defendant’s substantial assistance. Defendant argued that the government violated the plea agreement by failing to inform the district court of the extent of his substantial assistance to law enforcement officials. The Seventh Circuit found no breach because defendant did not give the government an opportunity to fulfill its promise. Two months before sentencing, defendant submitted his own memorandum in support of a § 5K1.1 departure. He attached as an exhibit an extensive discussion of his record of assistance to the government. It was hard to imagine anything the government could have added to this list at sentencing. Indeed, the government basically adopted this description. The government moved for a departure in compliance with the agreement. Defendant requested an even larger departure, but the court refused. U.S. v. Newman, 148 F.3d 871 (7th Cir. 1998).
7th Circuit rules court need not consider factors listed in § 5K1.1 in refusing to depart. (710) Defendant pled guilty to unlawfully distributing firearms. The district court rejected the government’s § 5K1.1 motion for a substantial assistance departure, because by selling guns to gang members and drug dealers defendant had enabled “the worst kinds of crime.” Defendant argued that in refusing to depart, the district court improperly considered a myriad of factors unrelated to defendant’s cooperation, and did not consider any of the factors listed in § 5K1.1. The Seventh Circuit held that a court need not consider the factors listed in § 5K1.1 until after it has decided, in its discretion, whether a departure is appropriate. The decision whether to depart downward, even in the face of a substantial assistance motion by the government, is wholly within the discretion of the sentencing court. All of the parties were aware of that fact. Defendant acknowledged in his plea agreement that the decision to depart rested solely with the court. U.S. v. Winters, 117 F.3d 346 (7th Cir. 1997).
7th Circuit finds court improperly considered acceptance of responsibility in substantial assistance departure. (710) The government moved under § 5K1.1 for a three-level downward departure based on defendant’s substantial assistance. The court granted a one-level reduction, noting that defendant had received a “tremendous break” in the two-level acceptance of responsibility reduction. The Seventh Circuit held that the court improperly considered the acceptance of responsibility reduction in determining the extent of defendant’s substantial assistance departure. Note 2 to § 5K1.1 provides that the sentencing reduction for assistance to authorities should be considered independently of any reduction for acceptance of responsibility. U.S. v. Wallace, 114 F.3d 652 (7th Cir. 1997).
7th Circuit allows government to reduce its § 5K1.1 request after Bailey. (710) Defendant originally pled guilty to drug, firearms and money laundering charges. He cooperated, and the government moved for a 14 level downward departure under § 5K1.1, which would have reduced his sentence by 50%. After the Supreme Court’s decision in Bailey v. U.S., 116 S.Ct. 501 (1995), the government voluntarily dismissed the firearms charge. It then revised its § 5K1.1 motion to request only a 7 level departure, which would still result in a 50% reduction in sentence. Defendant argued that government was required to make its recommendation solely on the basis of the quality of his cooperation. The Seventh Circuit upheld the government’s rationale for amending its § 5K1.1 motion. It is not unusual for the government to recommend a sentence reduction based on a percentage of the defendant’s total sentence. Nothing in the guidelines bars a court from taking into account the final sentence in determining the degree of a departure. U.S. v. Senn, 102 F.3d 327 (7th Cir. 1996).
7th Circuit permits government to change its recommendation after career offender status was reversed on appeal. (710) Defendant was originally classified as a career offender, and was the recipient of a 12-level downward departure based on his substantial assistance. On appeal, the government conceded that the record did not support a finding that defendant was a career offender. The Seventh Circuit held that upon remand, the government was free to change its recommended downward departure under § 5K1.1 in light of defendant’s changed status. U.S. v. Pollard, 72 F.3d 66 (7th Cir. 1995).
7th Circuit says substantial assistance motion does not permit court to depart below mandatory minimum on other grounds. (710) Defendant argued that the district court erred in refusing to consider grounds for departure other than substantial assistance. The 7th Circuit found no error. At oral argument, defense counsel conceded that under recent caselaw, a court may only depart below a statutory mandatory minimum sentence for substantial assistance to authorities. Once the government files a motion under 18 U.S.C. § 3553(e), the court may not depart below the mandatory minimum sentence on any other ground except the defendant’s substantial assistance. U.S. v. DeMaio, 28 F.3d 588 (7th Cir. 1994).
7th Circuit says defendant not entitled to substantial assistance departure for time served in work release center. (710) Defendant argued that he should have received custody credit for time he served in a work release center pending sentencing. He acknowledged that the only way he could receive such credit was through a downward departure for substantial assistance to authorities. However, he believed he deserved such a departure because the transfer was for health reasons; if he were gravely ill or dead he would have been unable to testify against a co-conspirator. The 7th Circuit held that defendant waived this “creative” argument by failing to raise it below. Moreover, defendant did not provide substantial assistance by being detained at the work release center rather than the county jail. There was no evidence that defendant’s health problems were so serious that he would have been too ill to testify against his co-conspirator if he had been detained at the county jail during the entire presentence period. U.S. v. DeMaio, 28 F.3d 588 (7th Cir. 1994).
7th Circuit says court was not obligated to give same downward departure on remand. (710) Defendant argued that the district court abused its discretion by granting him a smaller substantial assistance departure at resentencing than it did at his original sentencing. Even assuming that the departure was smaller, the 7th Circuit found no abuse of discretion. The district court was under no obligation to give the same downward departure upon resentencing. Because the effect of vacation is to nullify the previously imposed sentence, a district court sentencing on remand writes on a clean slate. The district court had the discretion to mitigate the downward departure based on its belief that defendant was able to assist authorities to the extent he did only because of his pervasive criminal activities. Caselaw does not require a two point reduction for satisfaction of each of the factors listed in § 5K1.1. U.S. v. Atkinson, 15 F.3d 715 (7th Cir. 1994).
7th Circuit says “law of the case” prevented family circumstances departure below mandatory minimum. (710) The district court originally departed below the mandatory minimum to reflect defendant’s substantial assistance and unusual family circumstances. In the first appeal, the 7th Circuit reversed, ruling that the judge should not have considered defendant’s family circumstances. At resentencing, the district court explicitly refused to factor in defendant’s family circumstances. The 7th Circuit affirmed, ruling that an intervening change in the law did not require it to reexamine its previous holding. Although an amendment to section 5H1.6 authorized departures based on family circumstances, it did not affect the court’s holding that a departure from a statutory minimum sentence is only permitted based on assistance to the government. The court rejected the notion that once a downward departure from a statutory minimum sentence has been granted under 18 U.S.C. § 3553(e) or section 5K1.1, the sentence has been “opened” for departures based on additional grounds. U.S. v. Thomas, 11 F.3d 732 (7th Cir. 1993).
7th Circuit does not require court to rely on every factor in making substantial assistance departure. (710) Defendant argued that the extent of her substantial assistance departure was inadequate because the court ignored the potential harm to her family caused by her cooperation. One of the factors listed in section 5K1.1 as relevant to the degree of a substantial assistance departure is risk of injury to the defendant or his family. The 7th Circuit found no error. It had no jurisdiction to review defendant’s claim that the downward departure should have been greater. A district court need not rely on every one of the factors provided in section 5K1.1. U.S. v. Thomas, 11 F.3d 732 (7th Cir. 1993).
7th Circuit upholds method for calculating extent of substantial assistance departure. (710) In response to the government’s Rule 35 motion, the district court reduced defendant’s sentence from a statutory mandatory minimum of 60 months to 47 months. But for the mandatory minimum, defendant would have had a guideline range of 21 to 27 months. The 7th Circuit rejected defendant’s argument that in departing below the mandatory minimum under 18 U.S.C. section 3553(e), the resulting sentence must be within the 21 to 27 month range that would have been applicable but for the mandatory minimum. Once the mandatory minimum became applicable, the mandatory minimum 60-month sentence became defendant’s guideline range. The 7th Circuit held that the district court used an appropriate method to calculate defendant’s departure, and the extent of the departure was reasonable. U.S. v. Hayes, 5 F.3d 292 (7th Cir. 1993).
7th Circuit refuses to review extent of substantial assistance departure. (710) Although the government requested a section 5K1.1 departure to a sentence of 30 months, the district court imposed a 51-month sentence. The court did not believe that defendant should benefit from the information he gained from his deep involvement in drug dealing. The court also criticized the inconsistency in government’s departure policy, because two co-defendants who rendered substantial assistance were not the subject of a government motion for a downward departure. The 7th Circuit affirmed that it had no jurisdiction to review the extent of the downward departure. The sentence was not imposed in violation of law. The court was clearly aware that it could depart further, but refused to do so. U.S. v. Correa, 995 F.2d 686 (7th Cir. 1993).
7th Circuit finds no appealable issue where court denies substantial assistance departure because of criminal history. (710) At defendant’s sentencing, the government moved for a downward departure based on defendant’s substantial assistance. The district court refused to depart, stating that the failure of defendant’s criminal history score to reflect crimes for which he had been convicted but not yet sentenced would normally require an upward departure. The 7th Circuit found it lacked jurisdiction over the appeal because of the trial court’s decision to sentence within the guidelines range. It noted, however, that the guidelines do permit a judge to take account of convictions on which sentence has not yet been imposed. U.S. v. Eibler, 991 F.2d 1350 (7th Cir. 1993).
7th Circuit rejects mechanical reduction for each of the factors in section 5K1.1. (710) Defendant argued that the district court erred in failing to give him a more generous departure under section 5K1.1 based on his assistance to the government. He received the equivalent of a five or six point departure, but claimed it should have been an eight point reduction since he satisfied at least four of the factors set in section 5K1.1. The 7th Circuit upheld the departure since there was evidence that in determining the extent of the departure, the district court carefully weighed defendant’s assistance. Although a downward departure must be linked to the structure of the guidelines, there is no requirement of a two-point reduction for satisfaction of each of the factors listed in section 5K1.1. The language of section 5K1.1 does not lend itself easily to such a methodology; it simply sets forth a non-exhaustive list of considerations to guide the discretion of the district court. U.S. v. Atkinson, 979 F.2d 1219 (7th Cir. 1992).
7th Circuit refuses to review whether prosecutor acted in bad faith in refusing to move for downward departure. (710) The 7th Circuit rejected defendant’s claim that a court could review whether the failure of a prosecutor to move for a downward departure under section 5K1.1 could be reviewed for arbitrariness or bad faith. Nothing in the language of section 5K1.1 suggests limits on the exercise of prosecutorial discretion. The lack of such limits is not unconstitutional. Section 5K1.1 simply allows a prosecutor to “open a door to lenity,” and is similar to the prosecutor’s decision to bring lesser charges or engage in plea bargaining. Such decisions are not reviewable for arbitrariness and neither is the prosecutor’s decision not to file a substantial assistance motion. This does not mean a prosecutor can breach a promise to file such a motion, because a guilty plea induced by an unkept bargain is involuntary. Judge Cudahy, concurring in the judgment, disagreed with this portion of the opinion, but found the discussion dictum. U.S. v. Smith, 953 F.2d 1060 (7th Cir. 1992).
7th Circuit rules government did not breach unwritten agreement to move for downward departure. (710) Defendant pled guilty and agreed to aid the government without the benefit of a written plea agreement. He then contended that the government breached an unwritten promise to submit a motion for downward departure based upon his substantial assistance. The 7th Circuit ruled that the government’s failure to move for a downward departure was not the breach of any unwritten agreement. The only evidence as to the parties’ oral understanding was that the government agreed to “inform” the sentencing court of defendant’s cooperation. The government did inform the court, although it was a “cavalier rendition” of defendant’s assistance. The information was “almost buried in an avalanche of examples of the lack of assistance” offered by defendant. “Damaging with praise this faint appear[ed] to shirk” the government’s duty to act in good faith. U.S. v. Rosa, 946 F.2d 505 (7th Cir. 1991).
7th Circuit rules defendant’s refusal to cooperate may be considered in sentencing within guideline range. (710) The policy statement in guideline section 5K1.2 states that a defendant’s refusal to assist authorities in the investigation of other persons may not be considered as an “aggravating sentencing factor.” The 7th Circuit held that section 5K1.2 does not prevent a district court from relying upon a defendant’s refusal to assist when selecting a particular sentence within the applicable guideline range. The court found that the term “aggravating sentencing factor” referred to a factor justifying an upward departure, rather than a factor considered when sentencing within the guideline range. The court also rejected defendant’s claim that the district judge’s consideration of defendant’s refusal to assist was a violation of the 5th Amendment. Defendant was not given an additional sentence based on his exercise of a 5th Amendment right, since he received a sentence within the guideline range. U.S. v. Klotz, 943 F.2d 707 (7th Cir. 1991).
7th Circuit rules it has no jurisdiction to review refusal to depart downward. (710) Defendant claimed that the district court abused its discretion in denying the government’s motion for a downward departure. The 7th Circuit held that under 18 U.S.C. § 3742(a), it had no jurisdiction to review the district court’s failure to depart because a refusal is not an incorrect application of the guidelines, or without more, a violation of law. U.S. v. Hayes, 939 F.2d 509 (7th Cir. 1991).
7th Circuit holds court may not depart downward to impose probation under 21 U.S.C. 841(b)(1)(A). (710) Defendant’s crime carried a mandatory minimum 10-year sentence under 21 U.S.C. § 841(b)(1)(A). The district court departed downward based on defendant’s substantial assistance to authorities, and sentenced defendant to probation. The 7th Circuit remanded for resentencing, finding that § 841(b)(1)(A) prohibited a court from imposing probation in lieu of imprisonment. That section provides for a minimum 10-year term of imprisonment, and expressly prohibits a court from placing on probation any person sentenced under the section. Permitting a court to then depart downward and sentence a defendant to probation would render the prohibition meaningless. U.S. v. Thomas, 930 F.2d 526 (7th Cir. 1991).
7th Circuit outlines parameters for downward departure based on substantial assistance. (710) The district court departed downward in part based on defendant’s substantial assistance to authorities, but also improperly relied on defendant’s burdensome family responsibilities. Because the 7th Circuit could not determine what portion of the departure reflected defendant’s cooperation, it remanded for resentencing. In doing so, it suggested how the district court might properly link the degree of departure to the guidelines. The guideline most analogous to a downward departure for substantial assistance is guideline 3E1.1, which authorizes a two-level reduction for acceptance of responsibility. The two-level enhancement for obstruction of justice might also be relevant. “These provisions suggest that departures based on a defendant’s cooperation with authorities may warrant something on the order of a two-level adjustment for each factor found by the court to bear similarly on its evaluation of the defendant’s cooperation.” While this provided “imperfect guidance,” the court “renewed its caution that ‘departures of more than two levels should be explained with a care commensurate with their exceptional quality.’” U.S. v. Thomas, 930 F.2d 526 (7th Cir. 1991).
7th Circuit finds no breach of plea agreement in government’s recommendation of sentence at upper end of guideline range. (710) Defendant provided what the government termed “complete and valuable information.” However, the government did not move for a downward departure under guideline § 5K1, but instead recommended the upper end of the guideline range. The 7th Circuit found no breach of the plea agreement. The government told the court about defendant’s cooperation, but also said that he qualified for an upward departure based on his criminal history. Because of defendant’s substantial cooperation, the government decided to forego seeking the upward departure. Under the terms of the plea agreement, the government was permitted to recommend a sentence up to and including the statutory maximum of 20 years. In addition, the plea agreement did not require the government to move for a downward departure for substantial assistance. U.S. v. Spillman, 924 F.2d 721 (7th Cir. 1991).
7th Circuit remands because unclear whether judge confused acceptance of responsibility with government assistance. (710) After defendant refused to tell the district court anything about his sources or accomplices, the judge declined to grant defendant a reduction for acceptance of responsibility. The 7th Circuit remanded because the record was unclear whether the judge confused the standards for acceptance of responsibility with those of substantial assistance to the government. Although the judge suggested that the court needed information concerning defendant’s sources because defendant was not being candid about his own acts, the judge’s statements could also be interpreted as incorrectly stating that a defendant must cooperate with the government in order to receive a reduction for acceptance of responsibility. U.S. v. Escobar-Mejia, 915 F.2d 1152 (7th Cir. 1990).
8th Circuit finds no plain error even if court improperly considered factors outside defendant’s assistance. (710) The district court granted the government’s § 5K1.1 motion, and departed six months from the top of defendant’s advisory guideline range. Defendant argued for the first time on appeal that the district court erred, in determining the extent of departure, by considering factors unrelated to his assistance. He contended that the court impermissibly limited the extent of his departure based on the court’s antipathy toward him and the nature of his offense. The district court described defendant as “a repeat cheat, liar, and a person who … will do anything to get money out of folks.” The Eighth Circuit found that even if the court committed the alleged error, there was no reasonable probability that, but for the error, it would have imposed a more lenient sentence. Defendant’s view was that the court impermissibly considered his history and circumstances of his offense, to limit the extent of the § 5K1.1 departure. But if that is what happened, then the error was simply a matter of how the district court’s analysis was sequenced. Under 18 U.S.C. § 3553(a)(1), the court was not only permitted, but required, to consider defendant’s history and characteristics, and the nature and circumstances of the offense, before determining a final sentence. U.S. v. Troyer, 677 F.3d 356 (8th Cir. 2012).
8th Circuit finds court impermissibly considered sentencing factors in substantial assistance departure. (710) Defendant was subject to a mandatory minimum sentence of 180 months as an armed career criminal under 18 U.S.C. § 924(e). At sentencing, the government moved for a 15 percent downward departure for substantial assistance. The district court granted the motion, but departed downward by 40 percent, and sentenced defendant to concurrent 108-month sentences. The government argued that the district court improperly considered the 18 U.S.C. § 3553(a) sentencing factors in departing below the statutory minimum. The Eighth Circuit agreed and reversed. The sentencing transcript showed that the district court impermissibly considered the 18 U.S.C. § 3553(a) factors, rather than relying exclusively on assistance-related factors, in arriving at a sentence 72 months below the statutory minimum. U.S. v. Madison, 584 F.3d 412 (8th Cir. 2009).
8th Circuit permits resentencing below amended guideline range, to reflect earlier departure. (710) Defendant pleaded guilty to conspiracy to distribute crack cocaine. The district court imposed a within-Guidelines sentence of 160 months. A year after sentencing, the district court granted the government’s Rule 35(b) motion to reflect defendant’s substantial assistance, reducing his sentence to 100 months (a 38 percent reduction). Defendant later moved for a further reduction under 18 U.S.C. § 3582(c)(2), based on retroactive amendment 706, which reduced the offense levels for crack cocaine. The district court reduced defendant’s sentence to 75 months, which was 38 percent below the amended guideline range of 121-151 months. On appeal, the Eighth Circuit rejected defendant’s argument that the district court should have reduced defendant’s sentence further, holding that in granting a motion under § 3582(c)(2), a court may not sentence below the bottom of the amended guideline range except to the extent that the original sentence was below the guideline range. U.S. v. Higgins, 584 F.3d 770 (8th Cir. 2009).
8th Circuit upholds 37.5 percent substantial assistance departure where court felt constrained not to go to 50 percent. (710) Defendant faced a mandatory minimum sentence of 240 months, but the government filed substantial assistance motions under 18 U.S.C. § 3553(e) and U.S.S.G. § 5K1.1. She requested a 50 percent reduction from her mandatory minimum sentence. The district court found that defendant’s assistance was not extraordinary, and asserted that it was therefore “constrained by Eighth Circuit precedent not to go to 50 percent.” The court reduced her sentence by 37.5 percent to 150 months. Defendant argued that Gall invalidated the extraordinary circumstances standard. The Eighth Circuit found that the sentence imposed was reasonable, and refused to reverse it. Although Gall held that “proportional” justifications for variances from the advisory guideline range were inconsistent with Booker, it also confirmed that “a major departure should be supported by a more significant justification than a minor one.” Here, the district court properly applied that principle, concluding that a substantial reduction was warranted, much more than the government recommended, but somewhat less than defendant requested. The sentence was reasonable. U.S. v. Brunken, 581 F.3d 635 (8th Cir. 2009).
8th Circuit says court cannot consider non-assistance related factors in departing under § 3553(e). (710) Defendant pled guilty to conspiracy and aggravated identity theft. His advisory guideline range for the conspiracy count was 18-24 months. The aggravated identity theft count required a mandatory two-year consecutive sentence. The government filed a substantial assistance motion under 18 U.S.C. § 3553(e) and USSG § 5K1.1. The district court sentenced defendant to 12 months on the conspiracy count and 18 months on the identity theft count, for a total of 30 months. On appeal, defendant argued that a further downward departure was warranted to avoid unwarranted sentencing disparity with his co-conspirator and to account for his post-offense conduct and rehabilitation. The Eighth Circuit affirmed. First, the district court could only consider the value of defendant’s substantial assistance in reducing his mandatory two-year sentence for aggravated identity theft. Similarly, the court’s downward departure on the conspiracy count, based on the § 5K1.1 motion, could also only be based on assistance-related considerations. The district court properly applied § 5K1.1. U.S. v. Moore, 581 F.3d 681 (8th Cir. 2009).
8th Circuit says court properly limited its departure analysis to substantial assistance. (710) Defendant was subject to a mandatory life sentence on one drug count, and a 10-mandatory minimum on the second. Recognizing defendant’s lengthy and substantial cooperation, the government moved for downward departures under § 3553(e) and U.S.S.G. § 5K1.1. The district court found that defendant’s assistance was extraordinary. Starting from a baseline sentence of 406 months, the court granted a 60 percent departure and sentenced defendant to 162 months in prison. The court said it would have granted a greater departure based on § 3553(e) sentencing factors but lacked authority to do so under U.S. v. Williams, 474 F.3d 1130 (8th Cir. 2007). Defendant argued that Gall v. U.S., 552 U.S. 38 (2007) overruled Williams, and that the district court erred in not granting a greater departure. The Eighth Circuit held that the district court properly limited its § 3553(e) departure analysis to a consideration of defendant’s substantial assistance, declining to consider the § 3553(a) factors. Gall did not expand the limited departure authority granted by § 3553(e). The court also did not err in selecting 406 months (one month above the highest non-life sentence in the Guidelines table) as the starting point for the 60 percent departure. The resulting sentence was reasonable. U.S. v. Christensen, 582 F.3d 860 (8th Cir. 2009).
8th Circuit upholds 50 percent substantial assistance departure on government’s third appeal. (710) At defendant’s first sentencing hearing, the district court granted him a 50 percent substantial assistance reduction. The Eighth Circuit vacated and remanded because the district court may have considered factors other than defendant’s assistance. On remand, the district court imposed the same sentence, but declared it had considered only assistance-related factors in determining the extent of the departure. The government again appealed, arguing that the extent of the departure was not reasonable. The Eighth Circuit agreed, since there were no extraordinary circumstances to justify the extraordinary departure. At his third sentencing hearing, defense counsel argued that, in light of Gall v. U.S., 552 U.S. 38 (2007), the court’s requirement of extraordinary circumstances to justify a large departure no longer applied. The district court again imposed the same sentence. On the government’s third appeal, the Eighth Circuit held that the district court acted within its discretion in granting the 50 percent sentence reduction. The proportionality analysis was no longer appropriate in light of Gall. The district court did not significantly consider any improper factors nor make any clearly erroneous factual findings. U.S. v. Peterson, 581 F.3d 669 (8th Cir. 2009).
8th Circuit holds that remand did not require court to grant 40% downward departure for substantial assistance. (710) Defendant’s guideline range was 97-121 months. Based on the government’s § 5K1.1 motion, the district court originally sentenced defendant to 24 months, but the Eighth Circuit reversed because the court considered matters unrelated to defendant’s assistance. On remand, the district court first granted a 40% downward departure to 58 months based on defendant’s substantial assistance, and then granted a downward variance to 24 months. The Eighth Circuit again reversed and remanded for resentencing by a different judge. The district court abused its discretion in granting the downward variance because the court considered improper factors such as defendant’s post-sentencing rehabilitation. The new court found that it was not bound by the 40% substantial assistance departure, and granted defendant only a 20% substantial assistance departure. The Eighth Circuit agreed that its previous remand did not require the district court to grant the 40% departure. The remand was a general remand for resentencing. The opinion did not place any limitations on the discretion of the newly assigned district judge in resentencing defendant. U.S. v. Pepper, 570 F.3d 958 (8th Cir. 2009), affirmed in part, vacated in part, Pepper v. U.S., 131 S.Ct. 1229 (2011).
8th Circuit says crack amendment did not reduce range of defendant subject to mandatory minimum. (710) Defendant pled guilty to crack charges, and his initial advisory guideline range was 78-97 months. However, he was subject to a mandatory minimum sentence of 120 months. The government moved for a substantial assistance departure under 18 U.S.C. § 3553(e), which the court granted, and sentenced defendant to 90 months. After the passage of Amendment 706, which lowered the offense levels for crack offenses, defendant moved under 18 U.S.C. § 3582(c)(2) to reduce his sentence. The district court granted the motion and reduced defendant’s sentence to 75 months. The Eighth Circuit reversed, holding that Amendment 706 did not apply to defendant. A district court does not have the authority to grant a § 3582(c)(2) sentence reduction if the relevant guideline amendment does not have the effect of lowering the defendant’s applicable guideline range. Here, because of the mandatory minimum, defendant’s original guideline “range” was 120 months. Amendment 706 did not alter the statutory mandatory minimums for crack offenses. Defendant’s original and post-amendment guideline ranges were the same. U.S. v. Baylor, 556 F.3d 672 (8th Cir. 2009).
8th Circuit upholds using higher of two offense levels as starting point for departure. (710) Defendant pled guilty to drug charges carrying a 120-month minimum sentence. The government moved under 18 U.S.C. §3553(e) for a substantial assistance departure. For defendant’s criminal history category, there were two offense levels that had sentencing ranges that included a 120-month sentence: (1) level 27 (with a range of 100-125 months), and (2) level 28 (with a range of 110-137 months). The district court selected level 28, and then departed by two levels as requested by the government, to level 26 and an advisory range of 92-115 months. The court sentenced defendant to 92 months. Defendant argued that the district court procedurally erred by departing downward from the higher of the two offenses levels, but the Eighth Circuit found no error. The Guidelines do not mandate a particular approach for calculating a substantial assistance departure. The sentencing court may depart by levels or it may depart by months. Because the decision to depart by levels is discretionary, the court’s decision to select the higher of two levels that encompassed the mandatory minimum sentence was not procedural error. U.S. v. Diaz, 546 F.3d 566 (8th Cir. 2008).
8th Circuit holds that court impermissibly relied on defendant’s post-sentencing rehab to justify 13.5 month reduction. (710) Defendant’s guideline range, prior to any departure, was 135-168 months. The offense carried a mandatory minimum sentence of 120 months. The district court granted the government’s § 5K1.1 and 18 U.S.C. § 3553(e) motion and reduced defendant’s sentence to 36 months. On defendant’s first appeal, the Eighth Circuit reversed the sentence, holding that the extent of the sentence reduction was unreasonable. On remand, the district court granted her a 50% reduction for substantial assistance, finding that her assistance was “extraordinary,” but not so extraordinary as to justify the 73% reduction. In addition to the 50% substantial assistance reduction, the court varied from the advisory guidelines based on defendant’s post-offense rehabilitation. The final sentence was 54 months. The Eighth Circuit reversed. First, it declined to reconsider its previous holding that a substantial assistance reduction from 135 months to 36 months was unreasonable. And, while the court was not prohibited altogether from considering factors other than substantial assistance in fashioning defendant’s sentence, the court was not permitted to rely on defendant’s post-sentencing rehabilitation. Such evidence is “not relevant” and cannot be considered at resentencing because the district court could not have considered the evidence at the time of the original sentencing. U.S. v. Coyle, 506 F.3d 680 (8th Cir. 2007).
8th Circuit holds that § 3742(g) did not bar government from making § 3553(e) motion on remand. (710) On defendant’s first appeal, the Eighth Circuit reversed the sentencing court’s consolidation of several burglary offenses. On remand, defendant’s initial guidelines sentencing range was 262-327 months, but the court departed under § 4A1.3 to reduce it to 163-200 months. The court then granted the government’s § 5K1.1 motion for a 30 percent downward departure, which brought his guideline range to 114 to 140 months. However, defendant was subject to a 120-month mandatory minimum, and the court imposed a 120-month sentence. The government declined to file a § 3553(e) motion necessary for the court to impose a sentence below the statutory minimum. It claimed that (a) it lacked the authority, under 18 U.S.C. § 3742(g), to make such a motion on remand, and (b) the substantial non-assistance departures already granted by the court made filing the motion inappropriate. The Eighth Circuit ruled that the government’s interpretation of § 3742(g) was incorrect. By its plain language, § 3742(g) restrains only the district court; the government’s authority to make a recommendation under § 3553(e) is unaffected. However, the panel agreed that given the other non-assistance departures defendant received, filing the § 3553(e) was not warranted. U.S. v. Mills, 491 F.3d 738 (8th Cir. 2007).
8th Circuit holds that after reducing sentence based on substantial assistance, court could not depart further based on factors unrelated to assistance. (710) Defendant was subject to a mandatory minimum sentence of 120 months. The district court granted the government’s substantial assistance motions under U.S.S.G. § 5K1.1 and 18 U.S.C. § 3553(e), and announced that it would reduce the term of imprisonment to 78 months based on defendant’s assistance. The court then invoked § 3553(a) to reduce the sentence further, to a final term of 60 months, based on defendant’s young age, medical history, drug use, and limited criminal history. The Eight Circuit reversed, holding that after reducing a sentence below a mandatory minimum based on a defendant’s substantial assistance, the district court could not further reduce the sentence based on sentencing factors not related to defendant’s assistance. Nothing in Booker expands the authority of a district court to sentence below a mandatory minimum. U.S. v. Williams, 474 F.3d 1130 (8th Cir. 2007).
8th Circuit upholds refusal to grant continuance to allow defendant to participate in drug enforcement operation. (710) Defendant’s plea agreement required him to fully aid and cooperate with the government. After several delays, the court rejected defendant’s request for a continuance, and defendant was sentenced to 120 months’ imprisonment by a different judge than the one who accepted her plea. Defendant appealed the district court’s denial of her motion for a continuance and the reassignment of the case to a different judge. The Eighth Circuit held that the decision to deny the continuance was not an abuse of discretion. District courts are given broad discretion when ruling on requests for continuances. Defendant had already requested and received five continuances; this was her request for a sixth continuance. Her plea agreement did not guarantee that defendant would ever be approved for active cooperation, and in fact the DEA had already rejected one such request. Even if defendant was approved, she might still not achieve success in her active cooperation and the government, in its discretion, could still decline to file a substantial assistance motion. Moreover, even if the court did abuse its discretion, defendant failed to establish prejudice. Defendant never had any right to participate in active cooperation, she was never approved to participate in it, and it was uncertain that she would ever be approved for it. U.S. v. Urben-Potratz, 470 F.3d 740 (8th Cir. 2006).
8th Circuit holds that court’s consideration of § 3553(a) factors prior to departure was error. (710) The government challenged the district court’s consideration of the § 3553(a) factors prior to considering the government’s § 5K1.1 motion. The Eighth Circuit agreed that this was error. Post-Booker, the first step in sentencing a defendant is to determine the appropriate advisory guideline range, including traditional departures. Post-Booker, guideline departures remain an important and relevant part of determining a defendant’s advisory guideline range. The 120-month sentence imposed here was unreasonable – it was not justified by the § 3553(a) factors relied upon by the district court, and the court’s error in failing to first consider the § 5K1.1 departure motion was not harmless. The fact that defendant was addicted to methamphetamine did not support shaving off 14 years of his sentence. The addiction may have motivated his participation in the conspiracy, but he was more than a mere user. The court also erred by giving significant weight to an improper factor – namely the government’s refusal to grant defendant use immunity for information he provided during debriefing. The disparity between defendant’s guideline range and the 120-month received by a co-conspirator also did not support a lesser sentence, since defendant and the co-conspirator were not similarly situated. U.S. v. Hodge, 469 F.3d 749 (8th Cir. 2006).
8th Circuit affirms despite improper procedure where court would have imposed same sentence. (710) At sentencing, defendant moved for a variance from the advisory guideline range under 18 U.S.C. § 3553(a). The government opposed the motion, but filed a § 5K1.1 motion for a substantial assistance departure, recommending a 25 percent downward departure. The court granted defendant’s motion for a variance prior to granting the § 5K1.1 departure, deviating from the advisory guideline range of 210-240 months to determine that the mandatory minimum sentence of 120 months was appropriate. The court then granted the § 5K1.1 motion, imposing the mandatory 120-mandatory minimum sentence. Defendant argued that he was deprived the benefit of his substantial assistance because the court deviated from the advisory guideline range for non-assistance related reasons, and was then precluded from departing further due to the statutory minimum sentence. Although the court did not follow the procedure outlined in U.S. v. Haack, 403 F.3d 997 (8th Cir. 2005) for determining the sentence, the Eighth Circuit still affirmed the sentence, believing that the district court would have arrived at the same sentence if it had correctly considered the applicable departure prior to deviating from the resulting guideline range under § 3553(a). The district court, without a motion by the government under 3553(e), did not have authority to impose a sentence below the mandatory minimum sentence of 120 months. U.S. v. Pamperin, 456 F.3d 822 (8th Cir. 2006).
8th Circuit remands where court failed to specify reasons for granting substantial assistance motion. (710) Defendant pled guilty to various drug charges, resulting in an advisory guideline range of 135-168 months. The government moved for a substantial assistance departure under U.S.S.G. § 5K1.1 and 18 U.S.C. § 3553(c), recommending a 20 percent departure and characterizing his information and testimony as “ok.” Defendant’s counsel asked for the court to consider § 3553(a) factors such as defendant’s drug treatment, relative sobriety, work history, and family support. The court sentenced defendant to concurrent 68-month sentences, which represented a 50 percent downward departure for the bottom of the advisory guideline range and a 43 percent reduction below the mandatory minimum sentence of 120 months. In doing so, the court discussed factors other than defendant’s assistance. The Eighth Circuit remanded because the court failed to specify its reason for granting the departure. The record did not disclose (1) the weight the court gave permissible factors regarding defendant’s assistance, (2) the court’s position regarding the government’s recommended 20 percent departure, (3) for what purpose the court considered factors other than defendant’s assistance. Given the nature of defendant’s assistance, it was uncertain whether a 50 percent reduction based solely on defendant’s assistance would be reasonable. U.S. v. Peterson, 455 F.3d 834 (8th Cir. 2006).
8th Circuit holds that court could review sentence for reasonableness even though defendant received substantial assistance departure. (710) The district court applied the career offender guideline, found defendant’s sentencing range to be 188-235 months, and then granted the government’s motion for a downward departure based on defendant’s substantial assistance. The government did not make a specific sentencing recommendation, but the 96-month sentence imposed represented a reduction of about 50 percent from the bottom of the advisory guideline range. Defendant challenged the reasonableness of the sentence imposed, and the government argued that the appeal was an impermissible challenge to the extent of the court’s discretionary downward departure. The Eighth Circuit disagreed. The fact that an advisory guidelines determination involves a § 5K1.1 departure does not shield the overall sentence from review for reasonableness. Review remains because “an unreasonable sentence would be imposed ‘in violation of law’ within the meaning of § 3742(a).” The sentence was reasonable. The court properly calculated the advisory guideline range, permissibly applied a § 5K1.1 departure, and took that resulting range and departure into account along with the other § 3553(a) factors to arrive at the 96-month sentence. U.S. v. Berni, 439 F.3d 990 (8th Cir. 2006).
8th Circuit holds that 73 percent assistance reduction was unreasonable. (710) Defendant pled guilty to methamphetamine conspiracy charges. Her sentencing range was 135-168 months, and she was subject to a 120-month mandatory minimum sentence. The government moved for a substantial assistance reduction, suggesting a reduction of 15 percent, while defendant argued for a reduction of 50 percent from the bottom of the applicable range. The district court, however, reduced defendant’s sentence to 36 months, a 73 percent reduction. The Eighth Circuit reversed, finding that the extent of the reduction was unreasonably large. An extraordinary reduction must be supported by extraordinary circumstances. A reduction of this level must be reserved for cooperating defendants who provide assistance that is much more extensive and significant than what defendant offered. There are undoubtedly defendants who provide long-term undercover assistance that is greater than the two controlled transactions involved here, who assist with the investigation of multi-member conspiracies rather than the single defendant prosecuted in this matter, whose cooperation results in the apprehension of particularly dangerous offenders, and who suffer a more tangible risk of injury or actual harm as a result of their cooperation. If the departure here were reasonable, such defendants could argue they deserved reductions of 80-100 percent in order to avoid unwarranted sentence disparities. U.S. v. Coyle, 429 F.3d 1192 (8th Cir. 2005).
8th Circuit says court may not base extent of § 5K1.1 on matters unrelated to defendant’s assistance. (710) The government filed a motion under § 5K1.1 asking the court to depart below the guideline range of 97-121 months’ imprisonment, requesting a 15 percent reduction, which would have resulted in a sentence of about 82 months. The court granted the motion and sentenced defendant to 24 months’ imprisonment. The judge reached this sentence after both he and a probation officer called officials at the Bureau of Prisons during breaks in the proceedings to determine the minimum term of imprisonment that defendant could serve and still qualify for the intensive drug treatment program offered at a particular prison. The Eighth Circuit held that the extent of a downward departure made pursuant to § 5K1.1 can be based only on assistance-related considerations. Here, the court considered a matter unrelated to defendant’s assistance, namely its desired to sentence defendant to the shortest possible term of imprisonment that would allow him to participate in the intensive drug treatment program at a particular federal prison. The record did not demonstrate that the court would have given defendant a 24-month sentence regardless of what matters the guidelines allowed court to consider in determining the extent of the departure. U.S. v. Pepper, 412 F.3d 995 (8th Cir. 2005).
8th Circuit holds that government did not waive right to appeal sentence. (710) The government argued that the district court considered improper factors in determining the extent of defendant’s substantial assistance departure. However, defendant’s plea agreement provided in relevant part that even if the government made a motion for a downward departure based on substantial assistance, “the final decision as to how much, if any, reduction in sentence may be warranted because of that assistance rests solely with the district court.” Defendant argued that this passage constituted a waiver of the government’s right to appeal because through it the government entrusted the final decision on the extent of the departure to the district court. The Eighth Circuit held that the language was not a waiver of appellate rights, which typically uses more precise terms like “waiver” and “appeal.” The panel also rejected defendant’s argument that it could not review the extent of the departure. While it could not entertain a defendant’s challenge to the extent of a downward departure, it can review on appeal the same issue by the government. U.S. v. Pepper, 412 F.3d 995 (8th Cir. 2005).
8th Circuit holds that use of co-conspirator testimony did not violate anti-gratuity statute. (710) Defendant contended for the first time on appeal that the district court improperly admitted co-conspirator testimony given in exchange for the government’s promise of a reduced sentence. The Eighth Circuit found that even if the issue was properly before it, defendant’s argument had no merit. The Tenth Circuit panel opinion defendant relied upon, U.S. v. Singleton, 144 F.3d 1343 (10th Cir. 1998), was rejected by the Tenth Circuit en banc. U.S. v. Singleton, 165 F.3d 1297 (10th Cir. 1999). The federal anti-gratuity statute does not apply to a prosecutor’s promises of leniency to cooperating witnesses in exchange for their truthful testimony. U.S. v. Boyd, 168 F.3d 1077 (8th Cir. 1999).
8th Circuit says counsel not ineffective in failing to seek substantial assistance departure. (710) In a petition under 28 U.S.C. §2255, defendant contended that his trial counsel was ineffective in not pursuing a downward departure for substantial assistance. The Eighth Circuit found no ineffective assistance. Courts are without statutory authority to grant substantial assistance departures without a government motion. The only limited exception is where a defendant shows that the government’s refusal was based on an unconstitutional motive, was irrational, or made in bad faith. Although defendant did testify for the government in at least one case, this merely suggested a line of attack that counsel might have pursued. It was insufficient to rebut the strong presumption of counsel’s competence. U.S. v. Craycraft, 167 F.3d 451 (8th Cir. 1999).
8th Circuit says mandatory minimum is starting point for substantial assistance departure. (710) Defendant pled guilty to a drug offense and using or carrying a gun during a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1). He was subject to a guideline range of 121 to 151 months on the drug counts, and a mandatory consecutive sentence of 60 months on the firearm count. The district court granted the government’s § 3553(e) substantial assistance motion for a downward departure below the mandatory minimum. The court reduced defendant’s sentence by 50 percent and imposed 61 months on the drug count and 30 months on the gun count. Defendant argued that the mandatory minimum sentence should not have been considered by the district court once it granted the § 3553(e) motion. Rather, the court should have applied a § 2D1.1(b)(1) gun enhancement to the drug count. The Eighth Circuit disagreed, holding that § 924(c)’s mandatory minimum sentence was the appropriate starting point for a § 3553(e) downward departure. Section 3553(e) directs court to refer to the guidelines when departing downward. The guidelines that pertain to § 924(c)(1) refer back to the statute, which requires a 60-month minimum sentence. U.S. v. Schaffer, 110 F.3d 530 (8th Cir. 1997).
8th Circuit holds adjustments do not apply to departures for substantial assistance. (710) Defendant pled guilty to a drug offense and using or carrying a gun during a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1). The district court granted the government’s § 3553(e) motion for a downward departure below the mandatory 60-month minimum sentence on the firearm count. Defendant argued that the district court should have further reduced his § 924(c)(1) sentence for acceptance of responsibility, either as an adjustment or a departure. The Eighth Circuit held that guideline adjustments do not apply to mandatory statutory sentences. The district court was correct not to reduce his § 924(c)(1) sentence for acceptance of responsibility. Defendant also was not entitled to a further departure based on acceptance of responsibility. Section 3553(e) does not authorize district courts to depart below the mandatory minimum for any reason other than substantial assistance. U.S. v. Schaffer, 110 F.3d 530 (8th Cir. 1997).
8th Circuit permits substantial assistance reduction in addition to retroactivity reduction. (710) Pursuant to the government’s substantial assistance motion under § 5K1.1, the court departed downward from 292 months and imposed a sentence of 204 months. A year later, the government moved under Rule 35(b) to reduce the sentence for post sentencing assistance, and the court reduced it to 131 months. Later, the applicable guideline was amended retroactively and defendant moved for a further reduction under 18 U.S.C. § 3582(c)(2). The government recommended a sentence of 106 months, and argued the court could go below the 120 month mandatory minimum because of defendant’s “substantial assistance” under 18 U.S.C. § 3553(e). The district court ruled the government could not invoke § 3553(e) in the context of § 3582(c)(2), but on appeal, the Eighth Circuit disagreed, ruling that the government may seek a substantial assistance reduction below the statutory minimum in addition to a § 3582(c)(2) reduction. Section 3553(e) has no time limitation foreclosing such action. U.S. v. Williams, 103 F.3d 57 (8th Cir. 1996).
8th Circuit rules court not required to examine each of the factors listed in § 5K1.1. (710) Defendant argued that the district court relied on improper factors in determining the extent of a downward departure under § 5K1.1 and in refusing to depart below the mandatory minimum. He claimed that in deciding the extent of a downward departure, a district court may only use the factors outlined in § 5K1.1, along with others that generally relate to the defendant’s assistance. The Eighth Circuit refused to examine the extent of the downward departure. The district court properly considered defendant’s assistance when ruling on the government’s motions. A court is not required to examine each of the factors listed in § 5K1.1 on the record and explain exactly just what weight it gives to each in its departure decision. The district court did not err in denying the government’s § 3553(e) motion to depart below the statutory minimum. The district court knew it had discretion to depart and simply declined to exercise it. U.S. v. McCarthy, 97 F.3d 1562 (8th Cir. 1996).
8th Circuit forbids departure below mandatory minimum except for substantial assistance. (710) Defendant had a sentencing range of 97-121 months, but was subject to a mandatory minimum sentence of 120 months. The government court moved for a departure below the mandatory minimum based on defendant’s substantial assistance, and the court imposed a 96-month sentence. Defendant sought a further departure under § 5H1.4 based on the fact that he had AIDS-Related Complex (“ARC”), but the district court denied the motion. On appeal, the Eighth Circuit held that the government’s substantial assistance motion to depart below the mandatory minimum did not open the door for a further departure under § 5H1.4, because the district court lacked authority to depart further below the statutory minimum. Judge Wilson dissented. U.S. v. Rabins, 63 F.3d 721 (8th Cir. 1995).
8th Circuit reaffirms that § 3553(e) motion is required to depart below statutory minimum. (710) The government moved under § 5K1.1 for a downward departure, but did not make a separate motion under 18 U.S.C. § 3553(e). Defendant argued that the district court should have the discretion to depart below the statutory minimum whenever the government files a motion for a guideline departure under § 5K1.1. The Eighth Circuit held that it was bound by U.S. v. Rodriguez-Morales, 958 F.2d 1441 (8th Cir. 1992), which held that a sentencing judge may not depart below a mandatory minimum absent a government motion under § 3553(e). Only an en banc court can overrule the case. Moreover, defendant waived any objection to his sentence by acknowledging in his plea agreement that five years was the statutory mandatory minimum, and by accepting the benefit of the plea. U.S. v. Polanco, 53 F.3d 893 (8th Cir. 1995).
8th Circuit says government may limit § 3553(e) motion to only some of the applicable mandatory minimums. (710) Defendants pled guilty to a variety of offenses requiring multiple mandatory minimum sentences. The government filed a § 3553(e) substantial assistance motion for a downward departure from only one of the applicable mandatory minimums. The Eighth Circuit held that § 3553(e) authorizes the government to make a separate substantial assistance motion decision for each mandatory minimum. However, the government may have limited its motion here for invalid reasons. The record suggested that the government limited its motion in part to reduce the district court’s discretion to depart from the government’s notion of the appropriate total sentence. The prosecutor’s role is limited to determining whether a defendant has provided substantial assistance with respect to “a sentence,” advising the sentencing court as to the extent of that assistance, and recommending a substantial assistance departure. The desire to dictate the length of a defendant’s sentence is not a permissible basis for exercising the government’s power under § 3553(e). U.S. v. Stockdall, 45 F.3d 1257 (8th Cir. 1995).
8th Circuit requires motion under 18 USC § 3553(e) to depart below mandatory minimum. (710) In U.S. v. Rodriguez-Morales, 958 F.2d 1441 (8th Cir. 1992), the 8th Circuit held that when the government seeks a downward departure for substantial assistance only under § 5K1.1, but does not seek a departure under 18 U.S.C. § 3553e), the district court cannot depart below the statutory minimum sentence. Here, the 8th Circuit rejected defendant’s request to reconsider this issue. The court refused to recommend en banc reconsideration of the prior ruling. U.S. v. Sanchez, 32 F.3d 1330 (8th Cir. 1994).
8th Circuit refuses expert testimony on how substantial assistance provision might motivate government witness to lie. (710) Defendant argued that the district court erred in refusing to allow a criminal defense attorney to testify as an expert witness about the impact of the substantial-assistance reduction on witness credibility. The 8th Circuit found no error. The attorney’s proposed testimony was not suitable for expert opinion. It was within the realm of common sense that certain witnesses would have an incentive to incriminate the defendant in exchange for a lower sentence. U.S. v. French, 12 F.3d 114 (8th Cir. 1993).
8th Circuit sees no plain error in refusal to depart below mandatory minimum on government motion. (710) Defendant was convicted under two mandatory minimum provisions, 21 U.S.C. §846 and 18 U.S.C. §924(c). The government filed a motion for downward departure based on defendant’s substantial assistance. The district court departed on one count, but imposed the statutory minimum sentence on the other count. Because the defendant had failed to object below, the 8th Circuit examined the case for plain error, and found none. Fritz v. U.S., 995 F.2d 136 (8th Cir. 1993).
8th Circuit holds that defendant failed to prove police promised lenient sentence. (710) Defendant argued that the district court erred in failing to sentence him in accordance with an alleged promise made to him by police in exchange for his cooperation. The 8th Circuit ruled that defendant failed to prove that the police made any promise to him, thus there was no need to examine the nature or enforceability of the promise. The district court heard extensive evidence and determined that defendant’s claim was not believable. U.S. v. Barahona, 990 F.2d 412 (8th Cir. 1993).
8th Circuit finds no obligation for downward departure motion in absence of agreement. (710) The 8th Circuit rejected defendant’s argument that his sentence should have been adjusted downward in return for information he provided to the government. There was no agreement between the parties that the government would recommend a downward departure if he provided information. Absent agreement, the government had no obligation to move for a downward departure. The district court could not depart downward absent a motion by the government. U.S. v. Buchanan, 985 F.2d 1372 (8th Cir. 1993).
8th Circuit says refusal to file section 5K1.1 departure motion did not violate due process. (710) Defendant’s plea agreement provided that in exchange for his assistance, the government would move, pursuant to 18 U.S.C. section 3553(e), for a downward departure from the statutory minimum 10-year term. It also stated that the government was not bound to move for a departure under guideline section 5K1.1. Defendant then proposed to provide the government with additional information in exchange for a section 5K1.1 motion. The AUSA declined, but assured defense counsel that if the information proved to be true, defendant would be rewarded. Defendant’s information led to the recovery of two kilograms of cocaine. At sentencing, the government moved for a departure under section 3553(e) but did not make a section 5K1.1 motion. The 8th Circuit rejected defendant’s claim that the government’s refusal to move for a section 5K1.1 departure violated due process. The AUSA’s statements did not amount to an enforceable promise to move for a section 5K1.1 departure. U.S. v. Favara, 979 F.2d 1037 (8th Cir. 1993).
8th Circuit holds that departure may not be based on refusal to identify other drug distributors. (710) The district court departed upward in part because of defendant’s unwillingness to report the names and activities of other people who used and distributed drugs. The 8th Circuit held that section 5K1.2 prohibited the district court from departing based on defendant’s refusal to assist authorities. The policy statement provides that a defendant’s refusal to assist authorities in the investigation of other persons may not be considered as an aggravating sentencing factor. U.S. v. Griess, 971 F.2d 1368 (8th Cir. 1992).
8th Circuit holds that defendant waived objection to 25-year sentence by agreeing that it was mini-mum statutory sentence. (710) Defendant’s plea agreement calculated his sentencing range as 30 years to life on a drug charge plus a five year mandatory penalty for a firearm charge. Defendant acknowledged that a 20 year mandatory minimum penalty applied to the drug charge and the combined minimum was 25 years imprisonment. The government moved for a downward departure under guideline section 5K1.1, and although defendant sought a 15-year sentence, the district court concluded that it lacked authority to depart below the statutory mandatory minimum without a separate motion by the government under 18 U.S.C. section 3553(e). The 8th Circuit held that defendant waived any objection to the 25-year sentence by agreeing it was the minimum sentence mandated by statute, and by accepting the benefit of the plea agreement. Moreover, the district court did not have the authority to depart below the statutory minimum absent a separate motion by the government under 18 U.S.C. section 3553(e). U.S. v. Durham, 963 F.2d 185 (8th Cir. 1992).
8th Circuit holds that section 5K1.1 does not authorize a departure below a mandatory minimum sentence. (710) The government filed a 5K1.1 motion for a downward departure based on defendant’s substantial assistance, but stressed that the motion was not being made under 18 U.S.C. section 3553(e), and did not affect the mandatory minimum sentence. Nonetheless, the district court departed below the 120-month mandatory minimum sentence and sentenced defendant to 36 months. The 8th Circuit reversed, holding that section 5K1.1 does not permit a sentencing judge to depart below a statutory mandatory minimum sentence. Although the Commission was empowered to provide for departures below mandatory minimum sentences, section 5K1.1 only discusses departures from the guideline range. A 5K1.1 motion is not equivalent to a motion under section 3553(e), and only section 3553(e) authorizes a sentence below a mandatory minimum sentence. The court disagreed with 9th and 2nd Circuit cases equating 5K1.1 motions with section 3553(e) motions. Senior Judge Heaney dissented. U.S. v. Rodriguez-Morales, 958 F.2d 1441 (8th Cir. 1992).
8th Circuit holds that defendant’s lack of assistance may be used in evaluating acceptance of responsibility. (710) At the hearing, defendant testified that he did not plan to cooperate with law enforcement officials. The then-effective Commentary to guideline § 5K1.2 established that a defendant’s lack of assistance may be used in evaluating the defendant’s sincerity in claiming acceptance of responsibility. Accordingly, the 8th Circuit found no error in the district court’s denial of a reduction for acceptance of responsibility. U.S. v. Streeter, 907 F.2d 781 (8th Cir. 1990), overruled on other grounds by U.S. v. Wise, 976 F.2d 393 (8th Cir. 1992).
8th Circuit disapproves policy refusing to allow defendant to cooperate with the government. (710) Defendant’s counsel wrote to the judge asking for permission for his client to cooperate in making controlled purchases of cocaine while released on bond. The district court denied the request. After sentencing, both the defendant and the government appealed. The 8th Circuit held that the district judge’s policy of refusing to permit defendants to cooperate contravened federal policy concerning cooperation, as expressed in Rule 35(b) of the Federal Rules of Criminal Procedure. The court rejected the defendant’s argument that he was eligible for a reduced sentence for cooperation, noting that U.S.S.G. § 5K1.1 requires a government motion. Nevertheless the court noted that the sentence had been stayed pending appeal and stated that the defendant should be permitted to cooperate with the government on remand. Judge Gibson dissented. U.S. v. French, 900 F.2d 1300 (8th Cir. 1990).
8th Circuit holds that government’s negative comments on defendant’s cooperation did not impermissibly serve to aggravate sentence. (710) The 8th Circuit held that the government’s negative comments concerning a drug defendant’s offer of assistance did not constitute an aggravating factor in violation of § 5K1.2, which prohibits use of a defendant’s refusal to cooperate as an aggravating factor. The court found that the record made it abundantly clear that § 5K1.2 was not violated. U.S. v. Smitherman, 889 F.2d 189 (8th Cir. 1989).
8th Circuit holds that prosecutor’s argument against credit for cooperation did not result in improper consideration of defendant’s refusal to cooperate. (710) At the sentencing of a drug manufacturer, the prosecutor argued that since the defendant did not cooperate with the government, he should not be entitled to any credit for cooperation. Section 5K1.2 states that a defendant’s refusal to assist the government in the investigation of other persons may not be considered as an aggravating factor. The 8th Circuit held that its review of the record revealed that the prosecutor’s argument did not offend § 5K1.2. Thus, imposing the government’s recommended sentence at the upper end of the guideline range was not improper. U.S. v. DePuew, 889 F.2d 791 (8th Cir. 1989).
8th Circuit finds defendant was not punished for refusing to cooperate. (710) The 8th Circuit held that the defendant was not punished for refusing to cooperate with the government. Rather, he was not rewarded under § 5K1.1 for providing substantial assistance to the government. Moreover, the district court is not required to state its reasons for imposing a particular sentence when the range is less than 24 months. Thus the defendant’s assertion that he received the term because he was addicted to drugs was meritless. U.S. v. Ehret, 885 F.2d 441 (8th Cir. 1989).
9th Circuit finds procedural error in determining sentence before guidelines range. (710) At defendant’s sentencing hearing, the district court determined that defendant should receive a 96-month sentence, which was below the mandatory minimum of 120 months, based on defendant’s substantial assistance to the government. The court then calculated defendant’s guidelines range so that a 96-month sentence would be within the guidelines range after the government’s substantial-assistance motion. The Ninth Circuit held that a district court may not create a guidelines range just to enable the court to impose the sentence it would like to impose. Based on that ruling, the court held that the district court had committed procedural error and vacated defendant’s sentence. U.S. v. Lee, 725 F.3d 1159 (9th Cir. 2013).
9th Circuit, in reversing, says court should consider defendant’s old age at resentencing. (710) Defendant, a 72-year-old woman, was convicted of distributing methamphetamine and was sentenced to 96 months, which was below the mandatory minimum of 120 months, based on her substantial assistance to the government. Defendant argued that the sentence was substantively unreasonable in part because a 96-month sentence meant she was likely to die in prison. After finding other errors in sentencing, the Ninth Circuit stated that on remand, the district court “should give more serious consideration to whether to impose a sentence that effectively condemns a 72-year-old woman who provided extensive assistance to the government to death in prison for an offense of the nature involved.” U.S. v. Lee, 725 F.3d 1159 (9th Cir. 2013).
9th Circuit finds no error in failing to announce extent of departure before varying upward. (710) Based on his conviction for sexual exploitation of a minor, defendant was subject to a 120-month minimum mandatory sentence. The government moved for a downward departure based on defendant’s substantial assistance to the government. The district court granted that motion, but did not state the amount that it would depart downward. Instead, the court announced that it was varying upward because of the heinous nature of defendant’s offense and imposed a sentence of 160 months. On appeal, defendant argued that the district court was required to state the amount that it was departing downward based on defendant’s substantial assistance before it varied upward. The Ninth Circuit rejected this argument and held that a district court need not announce its post-departure sentence before varying upward. U.S. v. Evans-Martinez, 611 F.3d 635 (9th Cir. 2010).
9th Circuit upholds government’s decision not to file substantial assistance motion. (710) Defendant pleaded guilty to drug-trafficking offenses pursuant to an agreement that provided that the government would move for a downward departure under § 5K1.1 if he provided substantial assistance. The agreement also provided that defendant was not entitled to have the government file a substantial-assistance departure motion and that the government would not file a motion if defendant provided untruthful, incomplete, or insubstantial information. Defendant provided truthful information to government agents, but at sentencing the government declined to file a § 5K1.1 motion because the assistance defendant provided had not resulted in any arrests or indictments and was therefore insubstantial. The Ninth Circuit held that the district court did not err in declining to hold an evidentiary hearing to inquire into the reasons that the information defendant provided had not resulted in arrests or indictments and that the government had fulfilled its obligation to assess defendant’s cooperation in good faith. U.S. v. Flores, 559 F.3d 1016 (9th Cir. 2009).
9th Circuit says that court may assess cooperation under statutory factors, not § 5K1.1. (710) After pleading guilty, defendant cooperated with the government. At sentencing, the government filed a motion under § 5K1.1 asking the court to depart downward by six levels from the sentence required by the guideline range. The district court declined to depart downward; instead, relying on its authority under Booker, the court reduced defendant’s sentence by four years due to his cooperation. The Ninth Circuit held that the district court did not err in assessing defendant’s cooperation as part of its consideration of the sentencing factors set forth in 18 U.S.C. § 3553 instead of under the “anachronistic” guidelines regime. U.S. v. Zolp, 479 F.3d 715 (9th Cir. 2007).
9th Circuit holds that pre-sentence cooperation must be assessed in 5K motion, and not only in Rule 35 motion. (710) At defendant’s sentencing, the government filed a motion that credited defendant with assisting the government in an ongoing investigation and asked for a one-level downward departure for substantial assistance. The motion noted that defendant had provided information about other matters but that the value of that information could not then be evaluated. The motion stated that if the information concerning other investigations proved to be valuable, the government would file a motion under Federal Rule of Criminal Procedure 35(b) seeking a further reduction in sentence. Defendant sought a continuance of his sentencing to allow the government to assess his other efforts at cooperation, but the court denied that motion. The Ninth Circuit held that the government could not postpone the evaluation of defendant’s pre-sentencing cooperation beyond sentencing in order to address that cooperation in a Rule 35(b) motion. When the government files a 5K1.1 motion, the court must insist that the motion be based on an evaluation of all the assistance that defendant has provided, but the court need not delay sentencing to allow defendant to complete his cooperation. U.S v. Awad, 371 F.3d 583 (9th Cir. 2004).
9th Circuit says ineffective assistance in timing of plea and in pre-sentencing cooperation violates Sixth Amendment. (710) Defendant alleged that counsel delayed his guilty plea in a manner that decreased his ability to cooperate with the authorities. Defendant eventually pleaded guilty pursuant to an agreement that required his cooperation with the government in order to obtain a motion for a downward departure under the Sentencing Guidelines. He alleged that when difficulties arose in providing cooperation, his counsel failed to stay in contact or help resolve the problems and that he was therefore unable to provide substantial assistance. When defendant was sentenced, the government did not make a motion for a substantial assistance downward departure. The Ninth Circuit held that an attorney’s delaying of a guilty plea to the defendant’s prejudice could state an ineffective assistance of counsel claim, but that defendant’s allegations failed to show prejudice. The court also found that ineffective assistance of counsel during the defendant’s period of cooperation, if established, would violate the Sixth Amendment. U.S. v. Leonti, 326 F.3d 1111 (9th Cir. 2003).
9th Circuit holds substantial assistance departure should be from mandatory minimum, not guideline range. (710) Defendant, convicted of drug trafficking, was subject to a mandatory minimum sentence because he had prior convictions. His sentencing range under the Guidelines, however, provided for a sentence below the mandatory minimum. At sentencing, the government moved under § 5K1.1 for a five-year downward departure from the mandatory minimum because of defendant’s substantial assistance. Defendant objected that the departure should be from his guideline range, but the district court ran the departure from the mandatory minimum, so that defendant received a sentence above his guideline range. The Ninth Circuit affirmed, holding that substantial assistance departures should be from the mandatory minimum, not defendant’s guideline range. U.S. v. Auld, 321 F.3d 861 (9th Cir. 2003).
9th Circuit remands to decide if plea bargain required government to seek substantial assistance departure. (710) Defendant’s plea agreement required the government to file a substantial assistance downward departure motion if defendant was the “but for” cause of the apprehension of a fugitive co-defendant. Defendant provided assistance in apprehending the co-defendant, but at sentencing the government declined to file a departure motion because defendant had not completed his cooperation. The Ninth Circuit held that the government misinterpreted the plea agreement by requiring defendant to complete his cooperation before receiving a downward departure motion. The court remanded so that the government could consider whether defendant had complied with the plea agreement. U.S. v. Quach, 302 F.3d 1096 (9th Cir. 2002).
9th Circuit refuses to review extent of downward departure for substantial assistance. (710) Defendant sought a ten-level downward departure for substantial assistance, but the district court gave deference to the government’s five-level recommendation. On appeal, the Ninth Circuit noted that under 18 U.S.C. § 3742(a), a court of appeals ordinarily does not have jurisdiction to review the extent of a district court’s discretionary downward departure. However, it does have jurisdiction if the sentence was imposed “in violation of law,” or “as a result of an incorrect application of the sentencing guidelines.” Cases in other circuits have held that a district court that fails properly to consider all relevant factors under § 5K1.1 commits a reviewable error of law or misapplies the guidelines. See, e.g. U.S. v. King, 53 F.3d 589, 591 (3d Cir. 1995). Here, however, the fact that the district court deferred to the government did not mean it did not consider all the grounds presented to it. Therefore, there was no violation of law and the five-level downward departure was affirmed. U.S. v. Laney, 189 F.3d 954 (9th Cir. 1999).
9th Circuit suggests it will reject Singleton “leniency for testimony” argument. (710) Before it was overruled by the en banc Tenth Circuit, a three-judge panel of the Tenth Circuit held that the federal gratuity statute, 18 U.S.C. § 201(c)(2) prohibited prosecutors from promising leniency to cooperating witnesses in exchange for their testimony as part of a plea bargain. See U.S. v. Singleton, 165 F.3d 1297, 1300-01 (10th Cir. 1999) (en banc). In the present case, the Ninth Circuit noted that all six circuits that have considered the issue have held that § 201(c)(2) does not apply to the government. Moreover, the Ninth Circuit has “repeatedly approved of the government’s use of incentives to elicit relevant testimony.” Nevertheless, the court found it unnecessary to reach the issue in this case because the jury was made fully aware of the possible taint of the testimony of the cooperating witnesses. Therefore, there was no plain error. U.S. v. Flores, 172 F.3d 695 (9th Cir. 1999).
9th Circuit upholds waiver of appeal for breach of plea agreement despite high sentence. (710) In the plea agreement, the government agreed to recommend a downward departure to 15 years under § 5K1.1 based on defendant’s anticipated substantial assistance in testifying truthfully at the trial of a co-defendant. In return, defendant waived his right to appeal if the sentence was 15 years or less. He also agreed that if he breached the agreement, the “judgement and/or sentence . . . will not be the subject of legal challenge,” notwithstanding the waiver of appeal paragraph. Defendant breached the agreement by perjuring himself at trial, and was sentenced to 25 years. The Ninth Circuit dismissed his appeal, holding that the waiver and the breach provisions of the agreement were valid. “[Defendant] was only entitled to a 15-year sentence if he did not breach his plea agreement. Having breached, he is not entitled to the sentence specified in the plea agreement.” Thus, he could not avoid his waiver. U.S. v. Martinez, 143 F.3d 1266 (9th Cir. 1998).
9th Circuit permits government to use defendant’s statements in proffer agreement to prepare its witnesses for trial. (710) Before trial, defendant signed a proffer agreement with the government in an attempt to obtain a sentence reduction for substantial assistance. The proffer agreement said the government would not use any of defendant’s statements in its case in chief or at the time of sentencing. But it said the government could use “information derived directly or indirectly from the meeting for the purpose of obtaining and pursuing leads,” and any evidence obtained therefrom could be used to cross-examine defendant or to “rebut any evidence” offered by the defendant at trial or at sentencing. Based on this language, the Ninth Circuit upheld the government’s use of statements made by defendant during the proffer session to prepare several of its witnesses for trial. “The use of [defendant’s] statements to prepare witnesses is analogous to rebutting defendant’s evidence or pursuing leads to other evidence.” U.S. v. Chiu, 109 F.3d 624 (9th Cir. 1997).
9th Circuit interprets plea agreement to require substantial assistance. (710) Relying on U.S. v. Floyd, 1 F.3d 867, 869 (9th Cir. 1993), defendant argued that his plea agreement required the government to move for a downward departure under guideline § 5K1.1 without regard to whether the government felt that he had actually provided substantial assistance. The Ninth Circuit rejected the argument, finding that Floyd was not controlling because defendant’s plea agreement contained a more specific reference to the substantial assistance guideline. It said that if he complied with the agreement, the government would move for a downward departure “pursuant to the provisions of U.S.S.G. § 5K1.1.” The parallel language in Floyd’s agreement said only that the government would recommend a downward departure “from the sentencing guidelines and the mandatory minimum sentence.” In U.S. v. Kelly, 18 F.3d 612, 616 (8th Cir. 1994), the Eighth Circuit held that the phrase “pursuant to guideline § 5K1.1” was sufficient to link the defendant’s cooperation to the substantial assistance requirement. Accordingly, the Ninth Circuit held that the district court did not err in construing the defendant’s agreement to require substantial assistance. U.S. v. Anthony, 93 F.3d 614 (9th Cir. 1996).
9th Circuit says government may withhold “substantial assistance” motion if defendant rejects plea offer. (710) During plea negotiations, the prosecutor told defendant that if he accepted the plea offer, the government would file a motion for a substantial assistance departure, under § 5K1.1. The prosecutor also said that if defendant did not accept the proposal, the government would not file a § 5K1.1 motion. Defendant rejected the proposal and went to trial. On appeal, the government conceded that defendant had provided substantial assistance in the investigation and prosecution of another person. Nevertheless, the Ninth Circuit found that the government’s decision to withhold a § 5K1.1 motion was not arbitrary or based on an unconstitutional motive. The court relied on Bordenkircher v. Hayes, 434 U.S. 357 (1978), which held that even though plea bargaining by its nature deters a defendant from exercising his right to trial, if the defendant rejects the prosecution’s offer, the prosecution may carry out a threat to increase the charge. Judge Hawkins reluctantly concurred, but criticized the government for “sharp practices.” U.S. v. Murphy, 65 F.3d 758 (9th Cir. 1995).
9th Circuit says defendant’s refusal to cooperate may not be used to deny acceptance credit. (710) Citing U.S. v. McKinney, 15 F.3d 849, 854 (9th Cir. 1994) the Ninth Circuit held that the district court improperly held defendant’s refusal to cooperate with law enforcement authorities against him, in finding that he did not accept responsibility. The court noted that if defendant had agreed to discuss the offense conduct with law enforcement authorities and perhaps revealed and agreed to testify against his supplier, he might have earned a prosecutor’s recommendation for a downward departure for “substantial assistance to authorities” U.S.S.G. §5K1.1. “That is not closely related to contrition, however.” The court noted that a “cunning, but not contrite defendant may buy his way out of trouble by providing evidence against someone else, and an entirely contrite defendant may out of fear, ignorance of information useful to the prosecutors, or other reason, fail to provide assistance.” U.S. v. Vance, 62 F.3d 1152 (9th Cir. 1995).
9th Circuit finds refusal to make 5K1.1 motion was to penalize defendant for going to trial. (710) After remand from the Court of Appeals, the government offered to recommend a one-year reduction in defendant’s sentence under 5K1.1 if he would again plead guilty, but said it would not recommend any reduction if he withdrew his plea. In a 2-1 decision, the Ninth Circuit held that this amounted to penalizing defendant for exercising his right to a jury trial. It was therefore an “unconstitutional motive” under Wade v. U.S., 504 U.S. 181 (1992), which gave the district court authority to depart on its own motion for defendant’s substantial assistance. The court rejected the government’s “post hoc rationalizations” that the trial gave it an opportunity to realize that the defendant did not actually provide substantial assistance, noting that the government had already made the motion once and had signed an agreement stating that he aided in arresting a fugitive. Judge Fernandez dissented, pointing out that defendant’s activities, including intimidating witnesses, made his cooperation rather useless. U.S. v. Khoury, 62 F.3d 1138 (9th Cir. 1995).
9th Circuit says denial of government’s substantial assistance motion is unreviewable. (710) Defendant argued that, in denying the government’s motion for a downward departure based on the defendant’s substantial assistance under § 5K1.1, the district court failed to exercise its discretion in the manner prescribed by the sentencing guidelines and therefore imposed an illegal sentence. The Ninth Circuit rejected the argument, ruling that a district court’s discretionary refusal to depart downward under § 5K1.1 is unreviewable on appeal. It was clear that the district court knew it could depart but chose not to do so. U.S. v. Hanna, 49 F.3d 572 (9th Cir. 1995).
9th Circuit says three level acceptance credit cannot be based on attempt to cooperate or rehabilitation. (710) Defendant argued that he was entitled to a three level reduction for acceptance of responsibility because (1) his guilty plea allowed the government to secure the guilty pleas of his co-defendants, (2) he had rehabilitated himself since his incarceration, and (3) he was not permitted to render assistance to the government in other cases, even though he was willing to do so. The 9th Circuit rejected each of these arguments, stating that nothing in §3E1.1 suggests that a three level reduction for acceptance of responsibility can be based on substantial assistance or rehabilitation. U.S. v. Narramore, 36 F.3d 845 (9th Cir. 1994).
9th Circuit says ban on probation applies despite substantial assistance motion. (710) A provision of 21 U.S.C. § 841(b)(1)(A) says, “Notwithstanding any other provision of law, the court shall not place on probation or suspend the sentence of any person sentenced under this subparagraph.” The 9th Circuit held that this ban on probation applies even when the government makes a substantial assistance motion pursuant to 18 U.S.C. § 3553(e) and U.S.S.G. § 5K1.1. In so holding, the court followed the Sixth and Seventh Circuits in U.S. v. Thomas, 930 F.2d 526 (7th Cir.), cert. denied, 112 S.Ct. 171 (1991) and U.S. v. Snelling, 961 F.2d 93-96-97 (6th Cir. 1991). Thus, the district court properly ruled that it had no discretion to depart downward to probation in response to the government’s substantial assistance motion. U.S. v. Roth, 32 F.3d 437 (9th Cir. 1994).
9th Circuit finds refusal to depart further was appealable because based on legal conclusion. (710) The 9th Circuit recognized that if the judge’s refusal to depart further downward from the statutory minimum is simply a discretionary decision, the appellate court lacks jurisdiction to entertain an appeal. But here, the district court’s refusal to depart further for substantial assistance was based on its legal conclusion that it could not impose probation, and therefore it sentenced defendant to six months in custody. Accordingly, the sentence was reviewed de novo and affirmed. U.S. v. Roth, 32 F.3d 437 (9th Cir. 1994).
9th Circuit says substantial assistance motion did not permit sentence below binding plea agreement. (710) In a binding plea agreement pursuant to Fed. R. Crim. P. 11(e)(1)(C), the parties agreed that the government could withdraw from the plea agreement if the judge sentenced below five years. The agreement also said the government might file a substantial assistance motion under guideline §5K1.1 to permit a sentence “within the range contemplated by the plea agreement.” When the government made the motion, however, the court departed down to straight probation, and denied the government’s request to withdraw from the agreement. The government appealed and the 9th Circuit reversed, finding no exceptional circumstances to justify the district court’s failure to comply with the binding plea agreement. U.S. v. Mukai, 26 F.3d 953 (9th Cir. 1994).
9th Circuit says government’s promise to recommend minimum sentence required substantial assistance motion. (710) In the plea agreement, the government agreed to make defendant’s cooperation known to the court and to recommend “that defendant be sentenced to the minimum period of incarceration required by the sentencing guidelines.” The minimum guideline range was 41 months but the government refused to make a substantial assistance motion to enable the court to sentence below the statutory five-year minimum. The district court found that this breached the plea agreement and that the government’s refusal to recommend departure was in bad faith, and therefore sentenced defendant to 41 months in custody. On appeal, the 9th Circuit affirmed, holding that any ambiguities in the plea agreement should be construed against the government, and that the district court had the power to order specific performance of the plea agreement, and to find that the government was in bad faith under Wade v. U.S., 112 S.Ct. 1840, 1843 (1982). U.S. v. De la Fuente, 8 F.3d 1333 (9th Cir. 1993).
9th Circuit says plea agreement cannot be modified by later cooperation agreement without a hearing. (710) In the plea agreement, the defendant agreed to submit to interviews and to testify truthfully, in return for a downward departure motion by the government. Several months later, defendant signed an acknowledgement that no results had been achieved so far, and noted for the first time her responsibility to provide “substantial assistance” to the government. Thereafter, defendant failed to appear and was re-arrested and convicted. The government refused to move for a downward departure. On appeal, Judges Sneed and Hall reversed, finding that the district court violated the parole evidence rule when it looked at the later “acknowledgement” in finding that defendant had agreed to “cooperate” in the original agreement. Rule 11, Fed. R. Crim. P. requires any modification of the plea agreement to be accepted by the court. The sentence was vacated and the district court was instructed to hold a Rule 11 hearing to determine whether the acknowledgement was a valid modification of the plea agreement. Judge Wallace dissented. U.S. v. Floyd, 1 F.3d 867 (9th Cir. 1993).
9th Circuit affirms refusal to depart for aiding the judicial system. (710) Defendant argued that she was entitled to a downward departure due to her extensive cooperation with the judiciary in breaking open the case. The 9th Circuit rejected this argument, declining to follow the 2nd Circuit’s opinion in U.S. v. Garcia, 926 F.2d 125 (2nd Cir. 1991), which upheld a downward departure for cooperation rendered to the judicial system, in contrast to the prosecution. The court said it was difficult to imagine any assistance to the prosecution that did not also aid the courts, and “we cannot hold that the district court may put a different label on the same conduct and authorize a departure.” The court relied on U.S. v. Lockyer, 966 F.2d 1390 (11th Cir. 1992), which held that the district court did not err in refusing to depart downward for cooperation with the judiciary, since departure in Lockyer’s case would subvert the guidelines acceptance of responsibility provisions. U.S. v. Shrewsberry, 980 F.2d 1296 (9th Cir. 1992).
9th Circuit reverses district court’s decision that extent of departure was limited to government’s recommendation. (710) Once the government recommends a downward departure for substantial assistance, the district court has jurisdiction to depart below the government’s recommendation. The government in this case recommended a four level downward departure. Defendant requested a further departure, but the district court refused, stating that it lacked jurisdiction to depart below the government’s recommendation. The 9th Circuit reversed, holding that even though the government’s recommendation is for a specific range, the district court has authority to go beyond the recommendation and depart to a greater extent. U.S. v. Udo, 963 F.2d 1318 (9th Cir. 1992).
9th Circuit rejects additional departure beyond amount for substantial assistance. (710) The district court departed downward from the mandatory minimum sentence in response to a motion by the government for defendant’s substantial assistance. On appeal, the defendant argued that the district court should have departed further to take into account his “aberrant” behavior. The 9th Circuit rejected the argument, holding that “the court had no authority to depart downward below the statutory minimum on the basis of [defendant’s] aberrant behavior.” U.S. v. Valente, 961 F.2d 133 (9th Cir. 1992).
9th Circuit remands where plea agreement contemplated a finding on defendant’s cooperation. (710) The plea agreement stated that defendant would be sentenced to 60 months if he cooperated and 78 months if he did not. It provided that the “FBI has the sole discretion and judgment to determine whether the defendant provided substantial cooperation.” The district court sentenced the defendant to 78 months, with no mention of whether or not defendant cooperated. On appeal, the government conceded that the case should be remanded to determine whether defendant cooperated. U.S. v. Serrano, 938 F.2d 1058 (9th Cir. 1991).
9th Circuit holds that assistance in forfeiture did not warrant downward departure for substantial assistance. (710) In the civil forfeiture agreement, the government acknowledged that defendant had rendered “substantial assistance” during the forfeiture proceedings. In the criminal action, the plea agreement stated that defendant was free to argue that he had provided substantial assistance to the government. The district court, however, determined that surrendering property in a civil forfeiture did not constitute substantial assistance under guidelines § 5K1.1, and the 9th Circuit agreed. The court held that § 5K1.1 is restricted to cases in which a defendant has provided substantial assistance in the investigation or prosecution of another person. The settlement agreement in this case did not mention any assistance in a criminal investigation or prosecution of another. U.S. v. Sanchez, 927 F.2d 1092 (9th Cir. 1991).
9th Circuit rules that judge may not enhance sentence because of defendant’s failure to implicate others. (710) Defendants argued that the district court improperly enhanced their sentences because of their non-cooperation with the government. The 9th Circuit agreed that a judge may not enhance a defendant’s sentence because of his failure to implicate others, but ruled that in this case the judge “did not indicate that he was punishing . . for non-cooperation.” The judge did comment that defendant’s “priorities were misplaced and that if he wished assistance he should consider being candid with the authorities.” But the court of appeals found “nothing improper about these comments.” U.S. v. Smith, 893 F.2d 1573 (9th Cir. 1990).
9th Circuit rules defendant had no standing to challenge “cooperation” provision of Sentencing Reform Act. (710) Defendant argued that 18 U.S.C. 3553(e) improperly delegates judicial sentencing authority to the executive branch by allowing the district court, upon motion of the government, to “impose a sentence below a level established by statute as minimum sentence so as to reflect a defendant’s substantial assistance in the investigation or prosecution of another person who has committed an offense.” The 9th Circuit held that the defendant had no standing to make the argument, since he committed his offense before November 1, 1987, when that section went into effect. U.S. v. Hoyt, 879 F.2d 505 (9th Cir. 1989).
10th Circuit says court could not vary below mandatory minimum based on § 3553(a) factors. (710) Defendant was convicted of drug and firearm charges, each carrying a mandatory minimum 60-month sentence. The court granted the government’s § 3553(e) motion and sentenced defendant to 57 months on the drug count and a mandatory 60-month sentence on the firearm count. The Tenth Circuit rejected defendant’s argument that the court should have considered the § 3553(a) factors in determining whether to grant a downward variance after it granted the substantial assistance departure. As a matter of law, the district court was not authorized to consider factors other than substantial assistance in sentencing below the statutory minimum. Defendant also argued that the court should have considered the § 3553(a) factors before its departure analysis, and thus it could have granted a downward variance to the mandatory minimum based on the § 3553(a) factors, and then used that lower level as the baseline for the substantial assistance departure. The Tenth Circuit noted that this approach was “in significant tension with our caselaw,” which may require court to consider all available guideline departures before considering the § 3553(a). Moreover, the record demonstrated that the district court did consider the § 3553(a) factors before granting the substantial assistance departure. U.S. v. A.B., 529 F.3d 1275 (10th Cir. 2008).
10th Circuit finds Booker error harmless where court had discretion under § 5K1.1 as to extent of downward departure. (710) Defendant was sentenced prior to the Supreme Court’s decision in U.S. v. Booker, 543 U.S. 220 (2005); therefore, the district court sentenced defendant under the mistaken impression that the Sentencing Guidelines were mandatory rather than advisory. The Tenth Circuit found the error harmless because the record showed that defendant’s sentence would have been the same under the post-Booker discretionary regime. The government had moved under § 5K1.1 for a downward departure based on defendant’s substantial assistance. Under that provision, the district court had considerable discretion regarding the amount of reduction, if any, and it could undoubtedly have exercised its discretion to impose a lesser sentence than it did. Although in determining the extent of a downward departure, “substantial weight should be given to the government’s evaluation of the extent of the defendant’s assistance,” the district court nonetheless retains discretion to depart to the degree it finds appropriate, regardless of a specific recommendation by the government. If the court thought defendant deserved an even lesser sentence, it could have departed further. Nothing in the record overcame the presumption that the court was aware of its discretion. U.S. v. Ollson, 413 F.3d 1119 (10th Cir. 2005).
10th Circuit says government’s failure to file § 5K1.1 did not bar court from considering assistance in determining degree of upward departure. (710) The district court notified both parties of its intent to depart upward from the guidelines from a sentence to 60 months to a sentence between 188 and 235 months. Both parties responded by asking the court not to depart upward, or to depart to a lesser degree, because of defendant’s cooperation with the government. The court refused, noting that defendant’s cooperation was not significant enough for the government to file a § 5K1.1 motion. The Tenth Circuit reversed, holding that the government’s decision not to file a § 5K1.1 motion did not prevent the court from fully considering defendant’s assistance in deciding whether to depart upward or in calculating the proper degree of departure. The district court erred as a matter of law when it refused to fully consider defendant’s cooperation in deciding to depart upward and in setting the degree of departure simply because defendant’s assistance was not presented in a § 5K1.1 motion. U.S. v. Doe, 398 F.3d 1254 (10th Cir. 2005).
10th Circuit will not review where judge recognized authority to depart. (710) The district court recognized his authority to depart downward under § 5K1.1, but suggested he would only consider such a departure if defendant had provided “useful information” that aided in the prosecution of the leaders of the motorcycle gang, not the lower level people that were convicted in state court. Because the district judge recognized his ability to depart downward, the Tenth Circuit refused to review the decision not to depart. U.S. v. Busekros, 264 F.3d 1158 (10th Cir. 2001).
10th Circuit rejects denial of federal benefits because defendant cooperated with authorities. (710) After defendant was convicted of drug charges, the district court ordered that defendant be denied all federal benefits for five years, pursuant to 21 U.S.C. § 862(a) (granting court discretion to deny federal benefits for varying lengths of time to certain drug defendants). However, § 862(e) provides that these penalties “shall not apply to any individual who cooperates or testifies with the Government in the prosecution of a Federal or State offense.” The district court found that defendant was entitled to benefits only if it had granted the government § 5K1.1 motion. The Tenth Circuit rejected this interpretation, and ruled that the court erred in ordering the denial of defendant’s federal benefits. As the district court acknowledged, defendant cooperated and assisted authorities in two state prosecutions. U.S. v. Busekros, 264 F.3d 1158 (10th Cir. 2001).
10th Circuit finds government offered concessions for truthful rather than false testimony. (710) Defendant contended that the government violated the “anti-bribery” statute, 18 U.S.C. § 201(c)(2), by promising leniency to Halladay in exchange for her testimony against him at trial. He contended that his case fell outside U.S. v. Singleton, 165 F.3d 1297 (10th Cir. 1999) (en banc) (offering leniency to witnesses does not violate anti-bribery statute) because Halladay’s trial testimony differed significantly from statements she initially made to police. He claimed prosecutors promised leniency to Halladay only if she would testify contrary to her original statements. The Tenth Circuit found that Singleton applied here. Singleton held that § 201(c)(2) did not apply to the United States acting in its sovereign capacity and thus did not preclude the government from offering an accomplice leniency in exchange for truthful testimony. That is precisely what occurred here. The government offered concessions to Halladay not for false testimony, but for truthful testimony. U.S. v. Hill, 197 F.3d 436 (10th Cir. 1999).
10th Circuit, en banc, says offering plea bargain for testimony is not bribery. (710) In a 9-3 decision written by Judge Porfilio, the en banc Tenth Circuit held that Congress did not intend for the federal gratuity statute, 18 U.S.C. § 201(c)(2), to prohibit prosecutors from promising leniency to cooperating witnesses in exchange for their testimony as part of a plea bargain. The majority reasoned that if Congress had intended to overturn the accepted practice, “it would have done so in clear, unmistakable and unarguable language.” In this case, the plea agreement said the government would file a § 5K1.1 motion for a downward departure if, in its sole discretion, the witness’s cooperation amounted to substantial assistance. It also promised that, in return for the witness’s promise to testify, the witness would not be prosecuted for any other crimes under investigation, and that the government would advise the sentencing court and the Mississippi parole board of the nature and extent of the witness’s cooperation. The majority held that these promises did not violate 18 U.S.C. § 201(c)(2) or Kansas Rule of Professional Conduct 3.4(b). Judges Kelley, Ebel, and Seymour dissented, arguing that “[i]f justice is perverted when a criminal defendant seeks to buy testimony from a witness, it is no less perverted when the government does so.” U.S. v. Singleton, 165 F.3d 1297 (10th Cir. 1999) (en banc).
10th Circuit, en banc, says offering plea bargain for testimony is not bribery. (710) In a 9-3 decision written by Judge Porfilio, the en banc Tenth Circuit held that Congress did not intend for the federal gratuity statute, 18 U.S.C. § 201(c)(2), to prohibit prosecutors from promising leniency to cooperating witnesses in exchange for their testimony as part of a plea bargain. The majority reasoned that if Congress had intended to overturn the accepted practice, “it would have done so in clear, unmistakable and unarguable language.” In this case, the plea agreement said the government would file a § 5K1.1 motion for a downward departure if, in its sole discretion, the witness’s cooperation amounted to substantial assistance. It also promised that, in return for the witness’s promise to testify, the witness would not be prosecuted for any other crimes under investigation, and that the government would advise the sentencing court and the Mississippi parole board of the nature and extent of the witness’s cooperation. The majority held that these promises did not violate 18 U.S.C. § 201(c)(2) or Kansas Rule of Professional Conduct 3.4(b). Judges Kelley, Ebel, and Seymour dissented, arguing that “[i]f. justice is perverted when a criminal defendant seeks to buy testimony from a witness, it is no less perverted when the government does so.” U.S. v. Singleton, 165 F.3d 1297 (10th Cir. 1999) (en banc).
10th Circuit says plea agreement did not require chance to provide substantial assistance. (710) Defendant’s plea agreement obligated the government to “make the nature and extent of [defendant’s] cooperation known” to the court at sentencing. The agreement acknowledged defendant’s good faith effort to cooperate, but said the decision to file a § 5K1.1 substantial assistance motion rested solely with the government. Although defendant gave truthful information to the government, he was unable render substantial assistance due to circumstances beyond his control. The Tenth Circuit held that the plea agreement did not require the government to allow defendant to provide substantial assistance. The government did not obligate itself to move for a § 5K1.1 departure. The language of the plea agreement merely left this possibility open, expressly leaving the decision to the sole discretion of the government. The government decided to terminate the drug investigation, rendering defendant’s cooperation unnecessary. Defendant did not allege that the government terminated the investigation for improper reasons. U.S. v. Courtois, 131 F.3d 937 (10th Cir. 1997).
10th Circuit holds that critical date in 5K1.1 retroactivity analysis is when cooperation was provided. (710) At the time of the offense, § 5K1.1 authorized substantial assistance departures where the defendant had made a “good faith effort” to provide substantial assistance. On November 1, 1989, before defendant was sentenced, § 5K1.1 was amended to require actual substantial assistance. The government conceded that defendant had made a good faith effort, but declined to make the motion because defendant’s information did not rise to the level of substantial assistance. Defendant argued that applying the amended § 5K1.1 violated the ex post facto clause. The 10th Circuit agreed that the amendment was a substantive change to the guideline, rather than merely a clarification, but nonetheless found no ex post facto violation. The key point in time for retroactivity analysis is when the defendant provided the cooperation, not when the crime was committed. U.S. v. Gerber, 24 F.3d 93 (10th Cir. 1994).
10th Circuit lacks jurisdiction to review failure to make substantial assistance departure. (710) Although the government, pursuant to defendant’s plea agreement, moved for a substantial assistance departure, the district court failed to make the departure. The 10th Circuit held that it lacked jurisdiction to review the discretionary refusal to grant the departure, even though the government made a section 5K1.1 motion. Defendant could not evade this jurisdictional bar by characterizing the refusal to depart as a misapplication of the guidelines rather than as an exercise of discretion. U.S. v. Fitzherbert, 13 F.3d 340 (10th Cir. 1993).
10th Circuit rejects further departure from mandatory minimum after 5K1.1 departure. (710) The 10th Circuit rejected the possibility that once a downward departure from a statutory minimum has been granted under section 5K1.1 or 18 U.S.C. section 3553(e), a district court has discretion to depart further based on other grounds specified in the guidelines. The mandatory language of the sentencing statute, and the expressly limited exception granted in 18 U.S.C. section 3553(e) persuaded the court that a downward departure from the statutory minimum for any purpose other than substantial assistance would violate the sentencing statute. A district court may depart below a minimum sentence set by Congress only to reflect substantial assistance by the defendant. U.S. v. Campbell, 995 F.2d 173 (10th Cir. 1993).
10th Circuit refuses to review district court’s failure to grant government’s section 5K1.1 motion. (710) Defendant claimed that the district court abused its discretion in denying the government’s motion under guideline 5K1.1 for a downward departure. The 10th Circuit ruled that it lacked jurisdiction to consider this claim. The language in guideline section 5K1.1 clearly states that the district court’s decision to depart is discretionary. U.S. v. Munoz, 946 F.2d 729 (10th Cir. 1991).
10th Circuit rejects due process challenge to guidelines. (710) Defendant contended that the guidelines violate due process because they fail to provide a departure procedure analogous to 18 U.S.C. section 3553(e) and guideline section 5K1.1 for departing downward from a statutory minimum sentence. Defendant was the least culpable participant in a drug conspiracy, but the district court was unable to depart below the statutory minimum of 120 months. Other more culpable defendants received downward departures based on their substantial assistance, and received sentences of 72 to 84 months. The 10th Circuit found no due process violation. Defendant’s argument was “nothing more than a call for a reallocation of power in the sentencing process.” Defendants in non-capital cases have no due process right to a discretionary, individualized sentence. The substantial assistance provisions do not deny equal protection because a rational connection exists between obtaining information concerning narcotics and providing the opportunity for a sentence reduction in exchange for such information. U.S. v. Horn, 946 F.2d 738 (10th Cir. 1991).
10th Circuit finds district court could have granted motion to release defendant to permit controlled drug buy. (710) Two days before sentencing, the government and defendant filed a joint motion requesting that custody of defendant be transferred to a special FBI agent so defendant could arrange a controlled drug buy. The district court denied the motion, concluding that it did not have authority to permit the defendant to participate in new criminal activity and that granting the motion would violate separation of powers by improperly involving the judiciary in the prosecutorial function. The 10th Circuit found that these were improper grounds on which to deny the motion, and remanded the case for reconsideration. Controlled buys, and other undercover operations, do not contain the requisite criminal intent to convert the action into a crime. Moreover, neither the constitutional strictures of Article III nor separation of powers prohibited the district court from granting the motion. U.S. v. Vargas, 925 F.2d 1260 (10th Cir. 1991).
11th Circuit says retroactive crack amendments did not apply where sentence was based on mandatory minimum. (710) In separate appeals consolidated because they raised the same issue, defendants appealed the denial of their motions for sentence reductions under 18 U.S.C. § 3582(c)(2). In defendant Mills’ case, the government moved for, and the court granted, a departure below the 120-month statutory minimum due to Mills’ substantial assistance. The court sentenced her to 51 months. Defendant Brown was also subject to a 120-month mandatory minimum, and received a substantial assistance departure to a 33-month sentence. The Eleventh Circuit held that neither defendant was entitled to a further reduction under § 3582(c)(2) because their sentences were based on the statutory minimum, not the crack cocaine guideline. The guideline range for a defendant subject to a statutory minimum is not lowered by an amendment, even if the amendment would otherwise be applicable to the defendant. U.S. v. Mills, 613 F.3d 1070 (11th Cir. 2010).
11th Circuit says § 5K1.1 motion did not waive statutory minimum for crack amendment purposes. (710) Defendant moved under 18 U.S.C. § 3582 for a sentence reduction based on Amendment 706, which lowered the offense level for crack cocaine offenses. Although he was subject to a 120-month mandatory minimum sentence, at his original sentencing, the district court departed below the statutory minimum based on the government’s § 5K1.1 motion, and sentenced him to 60 months. The Eleventh Circuit held that the court’s granting of the § 5K1.1 motion did not waive the statutory mandatory minimum sentence and make defendant eligible for a sentence reduction under Amendment 706. Amendment 706 only reduces the base offense level for the crack offense, and he was still subject to the same minimum sentencing range post-amendment. U.S. v. Williams, 549 F.3d 1337 (11th Cir. 2008).
11th Circuit rejects probation where court gave no reasons to justify significant variance. (710) Defendant, a former officer of HealthSouth Corporation who played a major role in a fraud scheme, was originally sentenced to 60 months’ probation, with the first six months to be served as home detention. On appeal, the Eleventh Circuit found that the district court committed Gall procedural error, and vacated and remanded for resentencing. First, the district court improperly based the extent of its § 5K1.1 departure on a factor not related to defendant’s cooperation. The district court considered the fact that defendant “repudiated” the conspiracy at an early time, although his actions were not sufficient to meet the legal standards for withdrawing from a conspiracy. Also, the sentence could not be supported as a Booker variance because the court failed to explain its variance from the Guidelines range (78-97 months in prison) to its sentence of 60 months’ probation. Although the court listed certain § 3553(a) factors, it did not indicate what facts justified such a significant variance. The court recited the sentences of 12 others convicted in the fraud, but gave no description of their criminal conduct, nor an explanation of how defendant’s conduct was similar to co-conspirators who received probation. U.S. v. Livesay, 525 F.3d 1081 (11th Cir. 2008).
11th Circuit holds that 23-level downward departure resulting in seven-day sentence was unreasonable. (710) Defendant, a former executive of a large health care corporation, pled guilty to a variety of securities and mail fraud charges. Both parties agreed defendant’s advisory guideline range was 108-135 months’ imprisonment, and that his substantial assistance to the government warranted a § 5K1.1 downward departure. The government recommended a departure to 42 months’ imprisonment, which equated to a nine-level departure. Instead, the court granted defendant a 23-level departure and imposed a sentence of seven days’ imprisonment. The Eleventh Circuit held that the departure and resulting sentence were not reasonable. Although defendant’s cooperation might have been extraordinary, it was “not a get-out-of-jail free card.” Moreover, the court misinterpreted § 5K1.1(a)(4), which permits a court to consider whether the defendant suffered “any injury,” or “any danger or risk of injury to the defendant or his family resulting from his assistance.” The injury does not, as the court appeared to believe, include defendant’s civil liability to the victims of his fraud. The length of the sentence was shockingly short, and wholly failed to take into account the nature and circumstances of the offense and the need for the sentence to reflect the seriousness of crime. See 18 U.S.C. § 3553(a)(1), (a)(2)(A). The panel remanded to a different judge, in light of several other cases in which the court reversed the same judge for extraordinary downward departures. U.S. v. Martin, 455 F.3d 1227 (11th Cir. 2006).
11th Circuit holds that five-hour sentence for fraud defendant was unreasonable. (710) As the comptroller of a corporation, defendant participated in a fraudulent scheme that bilked a bank out of nearly half a million dollars. The government moved for a downward departure based on defendant’s assistance in the prosecution of the company’s president. When the court indicated its intent to sentence defendant to probation, the government pointed out that the law required incarceration. The district court modified the sentence to five hours in custody. The Eleventh Circuit held that the five hour sentence was unreasonable. In deciding how much to depart on substantial assistance grounds, the court not only considered the need for restitution, but it gave that factor controlling weight. The court did not discuss any of the § 5K1.1(a) assistance-related factors, such as the significance and usefulness of the assistance, or the nature and extent of the assistance. In addition, the leap from the post-departure guideline range of 6-12 months down to five hours was excessive. The court imposed the sentence to evade the strictures of the law forbidding a probationary sentence. However, the sentence was not a real sentence of incarceration, and violated 18 U.S.C. § 3561(a) (probation may not be imposed for Class B felony). Five hours imprisonment for an offense that caused almost half a million dollars in loss was unreasonable. U.S. v. Crisp, 454 F.3d 1285 (11th Cir. 2006).
11th Circuit says consideration of non-assistance related factors is not permitted under § 5K1.1. (710) Defendant, a high-ranking officer of a health care corporation, pled guilty to wire and securities fraud that resulted in losses exceeding $400 million. Although defendant had a guideline sentencing range of 87-108 months’, the district court granted him a substantial assistance departure imposed a sentence of 60 months’ probation. The Eleventh Circuit reversed. A sentence reduction under U.S.S.G. § 5K1.1 may be based only on factors related to the defendant’s substantial assistance. Thus, the court’s consideration of defendant’s “exemplary record” and the “circumstances surrounding his daughter” was improper as a matter of law. On this record, meaningful appellate review was not possible due to the court’s (1) erroneous consideration of non-assistance –related factors, and (2) failure to consider the § 5K1.1 factors or otherwise detail a permissible basis for the substantial assistance departure upon which it did rely. Moreover, in the absence of truly compelling reasons, in the face of multi-billion dollar securities fraud at the expense of the investing public, the probationary sentence was not “easily reconcilable with the basic factors enumerated by Congress in § 3553(a), including the need for a sentence to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment.” U.S. v. McVay, 447 F.3d 1348 (11th Cir. 2006).
11th Circuit says starting point for § 5K1.1 departure is statutory minimum. (710) Defendant was subject to a mandatory minimum sentence of 120 months under 21 U.S.C. § 841(b)(1)(A). Absent the mandatory minimum, his guideline range would have been 70-87 months. The government filed a motion for a substantial assistance departure under USSG § 5K1.1 and 18 U.S.C. § 3553(e). Defendant urged the district court to use the range of 70-87 months as the point from which to grant the downward departure. The district court rejected this argument and used 120 months as its point of departure. Agreeing with U.S. v. Hayes, 5 F.3d 292 (7th Cir. 1993), the Eleventh Circuit held that when a defendant faces a statutory minimum sentence greater than the otherwise applicable guideline range, the mandatory minimum sentence should be the starting point for the departure. Section 5G1.1(b) says that where the mandatory minimum sentence is above the guideline range, the statutory minimum sentence becomes the guideline sentence. Thus, the lower guideline range is no longer applied and the appropriate starting point for considering a downward departure is the statutory minimum sentence. U.S. v. Head, 178 F.3d 1205 (11th Cir. 1999).
11th Circuit holds that agreement promising leniency in return for testimony did not violate bribery statute. (710) Defendants persuaded the district court to suppress the testimony of their co-conspirators because that testimony had been obtained through plea agreements in which the government had promised leniency in exchange for the co-conspirator’s testimony. The district court, following U.S. v. Singleton, 144 F.3d 1343 (10th Cir. 1998), on rehearing, 165 F.3d 1297 (10th Cir. 1999), held that such agreements, although commonplace, are prohibited by the federal bribery statute, 18 U.S.C. § 201(c)(2), which makes it a crime to give or promise anything of value for testimony. The court also held that the agreements violated Rule 4-3.4(b) of the Florida Bar Rules of Professional Conduct. The Eleventh Circuit reversed, holding that plea bargain agreements in which the government trades sentencing recommendations in exchange for cooperation do not violate the federal bribery statute. The court agreed with the “stampede” of courts that have considered and rejected the Singleton panel’s holding. Such agreements also do not violate the Florida Bar Rules of Professional Conduct. U.S. v. Lowery, 166 F.3d 1119 (11th Cir. 1999).
11th Circuit says government’s lenient charging decision may justify rejecting § 5K1.1 motion. (710) Under U.S. v. Chavarria Herrara, 15 F.3d 1033 (11th Cir. 1994), a court granting a downward departure under § 5K1.1 or a sentence reduction under Rule 35(b) may only base the reduction on factors related to the defendant’s substantial assistance. Defendants argued that the court improperly refused to make a § 5K1.1 departure based on the government’s decision to charge them leniently. The Eleventh Circuit held that Chavarria Herrara does not apply to the court’s decision whether to grant a § 5K1.1 motion. Such a decision, like a court’s decision on a Rule 35(b) motion, remains discretionary. U.S. v. Luiz, 102 F.3d 466 (11th Cir. 1996).
11th Circuit refuses to review court’s substantial assistance departure policy. (710) Defendants each had a guideline range of 151 188 months. The government made a § 5K1.1 motion for each of them. Based on their culpability and degree of cooperation, the government recommended a 66 month sentence for one defendant, an 84 month sentence for the second, and a 60 month sentence for the third. The district court declined to follow the recommendations, instead departing by one third from the bottom of the applicable range to a sentence of 100 months for each defendant. Defendants challenged this “rigid and undisclosed sentencing policy” for the first time on appeal. The Eleventh Circuit refused to examine the policy. The first defendant was never apprised that he was being sentenced pursuant to a policy. However, the proper vehicle for defendant to object would be a 28 U.S.C. § 2255 motion in the district court. The second defendant was advised of the policy at sentencing, but never objected. Defendant’s claim that the policy was “unfair” did not amount to making a due process claim. The third defendant also did not object at sentencing to the policy. It was unclear whether he was aware of the policy. If he was unaware, he may raise his objection in a § 2255 motion. U.S. v. Cosgrove, 73 F.3d 297 (11th Cir. 1996).
11th Circuit says court may only consider defendant’s substantial assistance in departing below mandatory minimum. (710) Defendant faced a mandatory minimum sentence of 60 months. Pursuant to government motion, the district court departed under § 5K1.1 and 18 U.S.C. § 3553(e) to a 41-month sentence. Defendant argued that upon receipt of the government’s motion, the court should not have departed from the 60-month sentence, but from the offense level that would have been applicable absent the mandatory minimum. In addition, he suggested that the court should have given him credit for acceptance of responsibility, for his minor role in the offense, and for any other mitigating factor the record might have disclosed. The 11th Circuit held that the district court properly departed from the 60-month sentence applicable under the mandatory minimum statute. Moreover, under § 3553(e), the court was authorized to consider only defendant’s substantial assistance in departing below the mandatory minimum sentence. U.S. v. Aponte, 36 F.3d 1050 (11th Cir. 1994).
11th Circuit rejects downward departure for lack of mental capacity to provide substantial assistance. (710) The district court departed downward, finding defendant “did his best” to provide assistance, and that if his mental capacity were greater, he would helped the government catch “the next guy.” The 11th Circuit reversed, holding that § 5K2.13 does not authorize a departure because a defendant does not have the mental capacity to render substantial assistance to the government. This also was not grounds for a departure under § 5K2.0. Finally, defendant did not qualify for a substantial assistance departure because the government did not so move. U.S. v. Munoz-Realpe, 21 F.3d 375 (11th Cir. 1994).
11th Circuit refuses to review bad faith claim where defendant failed to introduce evidence. (710) Defendant argued that the government acted in bad faith in declining to file a motion for a substantial assistance departure under §5K1.1. The 11th Circuit did not review the issue since although defendant initially requested an evidentiary hearing on his bad faith allegation, he specifically withdrew this request in the middle of his sentencing hearing and thus failed to present evidence in support of his allegations. U.S. v. Bushert, 997 F.2d 1343 (11th Cir. 1993).
11th Circuit holds judge must rule on government’s substantial assistance motion prior to imposing sentence. (710) Prior to the imposition of defendant’s sentence, the government moved for a downward departure based on defendant’s substantial assistance under section 5K1.1. The district court did not rule on the motion, but granted defendant a downward departure. The 11th Circuit vacated the sentence, ruling that a judge must rule on the government’s section 5K1.1 motion prior to imposing sentence. U.S. v. Robinson, 948 F.2d 697 (11th Cir. 1991).
11th Circuit reverses downward departure for substantial assistance made without government motion. (710) Over the government’s objections, the district court determined that defendant provided substantial assistance to the government and departed downward. The 11th Circuit reversed, holding that a district court may not make a downward departure for substantial assistance without a government motion. The district court must follow the procedures set forth in § 5K1.1. The 11th Circuit also rejected the defendant’s argument that it lacked jurisdiction to consider this issue. Judge Clark, concurring in part and dissenting in part, argued that prior circuit precedent holding that a government motion is a prerequisite to a downward departure under § 5K1.1 was wrongly decided. U.S. v. Chotas, 913 F.2d 897 (11th Cir. 1990).
11th Circuit holds that denial of government’s motion for downward departure is not a misapplication of guidelines. (710) Defendant challenged the district court’s denial of the government’s motion for a downward departure based on defendant’s substantial assistance to the government. Generally a defendant may not appeal a court’s failure to make a downward departure. However, the 11th Circuit reviewed the case for the limited purpose of determining whether the district court’s failure to make a downward departure violated the commentary to § 5K1.1, which provides that “substantial weight should be given to the government’s evaluation of the extent of the defendant’s assistance.” The 11th Circuit found that this commentary did not affect the judge’s discretion in determining whether to make a downward departure, and therefore found that the district court did not misapply the guidelines in refusing government’s motion for a downward departure. U.S. v. Castellanos, 904 F.2d 1490 (11th Cir. 1990).
11th Circuit holds that court may not defer ruling on motion for departure based on cooperation. (710) At sentencing the government filed an in camera letter requesting that defendant be sentenced below the minimum guidelines sentence pursuant to § 5K1.1. The government planned to indict several of defendant’s crack suppliers in the near future and it planned to use defendant’s testimony in the prosecutions. The letter stated that defendant had “provided substantial assistance” by identifying people involved in the distribution of crack cocaine and by agreeing to testify against these people. The sentencing court stated that it would defer ruling on the motion because most of defendant’s agreed upon cooperation had not yet taken place. On appeal the 11th Circuit reversed, holding that a district judge may not defer ruling on a 5K1.1 motion. By deferring its ruling, the district court essentially denied the defendant the “two bites at the apple” to which he is entitled, i.e. sentencing below the guidelines by way of § 5K1.1 and reduction through resentencing by way of Federal Rule of Criminal Procedure 35(b). “If a sentencing court refuses to make a § 5K1.1 reduction at the time of sentencing, the defendant has up to one year after sentencing to get his second “bite” at reduction through Rule 35(b). U.S. v. Howard, 902 F.2d 894 (11th Cir. 1990).
11th Circuit finds imposition of minimum mandatory sentence did not violate Due Process when defendant’s assistance was unfruitful. (710) The Southern District Court of Florida held that it did not “shock the conscience” to fail to reward a defendant for “substantial assistance” since she played a minor role in the conspiracy and her assistance did not lead to the arrest and prosecution of a higher up. Al-though she did her best, her assistance was not substantial enough to justify a reward. U.S. v. Severich, 676 F.Supp. 1209 (S.D.Fla. 1989), affirmed, 872 F.2d 434 (11th Cir. 1989).
11th Circuit holds substantial assistance provision does not violate the Equal Protection clause. (710) Two drug defendants challenged the substantial assistance provisions of F.R.Cr.P. 35(b) and 18 U.S.C. § 3553(e), arguing that these provisions granting departures from minimum mandatory sentences violated the equal protection component of the Fifth Amendment. They asserted that minor participants and those of low culpability were unable to avail themselves of its benefits. The 11th Circuit disagreed and affirmed their convictions. Because a suspect class was not implicated, the statutes could stand so long as Congress had a rational basis for enacting them. The desire to ferret out drug kingpins by rewarding those who came forward with information had such a rational basis. There was no unequal treatment in its application because all minor figures are treated similarly. U.S. v. Musser, 856 F.2d 1484 (11th Cir. 1988).
D.C. Circuit upholds its jurisdiction over claim that departure did not comport with requirements of substantial assistance statute. (710) Defendant challenged the extent of the substantial assistance departure he received pursuant to 18 U.S.C. § 3553(e). The D.C. Circuit held that defendant’s argument was a claim that his sentence was “imposed in violation of law,” and thus it had jurisdiction under 18 U.S.C. § 3742(A)(1). A sentence is imposed “in violation of law” when it contravenes a statutory or constitutional provision or is in some other way unlawful. Defendant’s claim was that his sentence was imposed in violation of 18 U.S.C. § 3553(e). The D.C. Circuit rejected defendant’s claim on the merits. The fact that the government moved for a substantial assistance departure did not bar the prosecutor from pointing out to the court other factors relevant to the court’s sentencing, such as the fact that defendant was dangerous and might continue to engage in criminal conduct after leaving prison. Booker said nothing to suggest that the government must consider each of the § 5K1.1 factors whenever the government files a § 5K1.1 motion. The court “may” consider the listed factors, as well as others, when determining an appropriate reduction, but it is not required by Booker to do so. In re Sealed Case, 449 F.3d 118 (D.C. Cir. 2006).
D.C. Circuit holds that bribery statute does not bar government from offering leniency in exchange for testimony. (710) Relying on the panel decision in U.S. v. Singleton, 144 F.3d 1343 (10th Cir. 1998), on rehearing, 165 F.3d 1297 (10th Cir. 1999), defendant argued that the government’s use of an informant violated 18 U.S.C. § 201(c)(2), the federal bribery statute. The D.C. Circuit held that § 201(c)(2) does not prohibit the government from granting leniency in exchange for truthful testimony. The Tenth Circuit sitting en banc has reversed Singleton. In addition, the Singleton panel’s interpretation of § 201(c)(2) has been rejected by the Fifth and Sixth Circuit and every federal district court to consider the issue, save three. U.S. v. Ramsey, 165 F.3d 980 (D.C. Cir. 1999).
D.C. Circuit says court should have permitted defendant to plead guilty mid trial. (710) At the end of the first day of trial, defense counsel advised the court that defendant had agreed to plead guilty to the indictment and to testify for the government against her co defendants. The court rejected the plea request. The D.C. Circuit held that the district court should have granted the request to plead guilty. Although the request was made late, the delay was caused in part by defendant’s fear of her co defendants, who were incarcerated in the same detention facility. Although it might prejudice the other defendants to have defendant change her mind about testifying mid trial, there was no suggestion of unfair prejudice. Finally, the district court wrongly concluded that defendant would have been no better off by pleading to the indictment. If she testified against her co defendants, she would have had the opportunity to earn a § 5K1.1 reduction. The possibility of such a reduction was more than “conjectural.” On remand, the district court was directed to decide whether it was likely that if defendant had been allowed to plead and testify against her co defendants, the departure committee would have found that she provided substantial assistance. U.S. v. Shepherd, 102 F.3d 558 (D.C. Cir. 1996).
D.C. Circuit says defendant’s assistance can never justify § 5K2.0 departure. (710) Defendant asked the district court to depart under § 5K2.0 to recognize his extraordinary assistance. He claimed he confronted danger to a degree not adequately considered by the Sentencing Commission, and that his assistance to the administration of justice by the judicial branch was of a kind not taken into account by the guidelines. The D.C. Circuit held that the circumstances surrounding a defendant’s cooperation with the government can never be of a kind or degree not adequately contemplated by the Commission, and thus, can never be a ground for a § 5K2.0 departure. First, the Commission considered the fact that a defendant’s cooperation may result in danger or risk of injury to the defendant or his family. This is a factor to be considered by the court in determining the extent of a § 5K1.1 departure. Section 5K1.1 also adequately considers that a defendant’s assistance might benefit the judicial branch as well as the executive branch. The court could not envision a circumstance in which “assistance to the judicial system” would not also be of assistance to the government covered by § 5K1.1. U.S. v. White, 71 F.3d 920 (D.C. Cir. 1995).
D.C. Circuit rejects § 5K2.0 departure for exposure to danger by cooperation with government. (710) Despite defendant’s good faith efforts to assist police, the government declined to move for a § 5K1.1 departure. Defendant then moved for a § 5K2.0 departure because he exposed himself to danger and risked injury by cooperating with the government. The D.C. Circuit held that defendant was not entitled to a § 5K2.0 departure on this ground. The Sentencing Commission explicitly considered danger or risk of injury to a defendant or his family as a factor to be considered under § 5K1.1. Defendant’s argument would undermine the limits of § 5K1.1. Defendant did not argue that the degree of harm he risked was so extraordinary that it was not adequately considered by the Sentencing Commission. Judge Wald, dissenting, believed that defendant did argue that he suffered an extraordinary degree of risk, and therefore would have decided the legal issue of whether this can justify a § 5K2.0 departure. U.S. v. Watson, 57 F.3d 1093 (D.C. Cir. 1995).
D.C. Circuit rules court did not improperly consider drug courier’s sentences in determining extent of departure. (710) Defendant contended that in determining the extent of his section 5K1.1 departure, the district court impermissibly relied on a comparison to sentences typically imposed on drug couriers. The D.C. Circuit declined to determine whether it could review defendant’s challenge to the extent of his departure, since defendant did not meet his burden of showing that the district court relied on an invalid factor. The record indicated that the comparison was made not as a basis for the sentence but to provide a measure of comfort to defendant. The court was simply explaining to defendant that by comparison, the sentence he faced was not that harsh. U.S. v. Dale, 991 F.2d 819 (D.C. Cir. 1993).
D.C. Circuit upholds refusal to depart under 5K2.0 where defendant did not cooperate due to threats. (710) Although defendant initially cooperated with the government, he refused to testify at the trial of co-defendants after his family was threatened. Defendant argued that the peculiar circumstances of his refusal to testify justified a downward departure under section 5K2.0. The D.C. Circuit upheld the district court’s determination that because section 5K1.1 addressed defendant’s circumstances, it lacked authority to depart under section 5K2.0. Defendant’s challenges to the validity of section 5K1.1, raised for the first time on appeal, were rejected. Judge Edwards concurred separately to highlight his concern that section 5K1.1 might be invalid because the Sentencing Commission was required to promulgate a guideline, rather than a policy statement, under 28 U.S.C. section 994(n). U.S. v. Dawson, 990 F.2d 1314 (D.C. Cir. 1993).
D.C. Circuit upholds mandatory minimum sentence and guidelines against constitutional challenges. (710) Defendant argued that the application of a mandatory minimum sentence deprived him of due process and equal protection, since there is no opportunity to depart downward even though this was his first offense. The D.C. Circuit summarily rejected this argument, finding the mandatory minimum sentence a valid exercise of legislative prerogative. Defendant also contended that the provision permitting a downward departure from a mandatory minimum based on a defendant’s assistance to the government was unconstitutionally narrow, since it is the only method to obtain a downward departure from a mandatory minimum but it is unavailable to a defendant who is unable to help the authorities. The D.C. Circuit rejected this argument, finding that the public interest in obtaining valuable information provided a reasonable basis for drawing this distinction. U.S. v. Broxton, 926 F.2d 1180 (D.C. Cir. 1991).
Iowa District Court follows government recommendation in departing downward for substantial assistance. (710) The Southern District Court of Iowa noted that “the power to move for a sentence reduction rests with the government, but once the government files a motion for reduction of sentence, the sole power to reduce the sentence and to determine the extent of any reduction rests with the court.” The court added, however, that it believed “that the court should accord considerable weight to the government’s view of how much to reduce the sentence.” In this case, it followed the government’s recommendation and reduced the defendant’s sentence from 151 months to 76 months. U.S. v. Emanuel, 734 F.Supp. 877 (S.D. Iowa 1990).
Minnesota District Court rules defendant who seeks downward departure for “cooperation” may seek specific performance of plea agreement. (710) In U.S. v. Justice, 877 F.2d 644 (9th Cir. 1989), the Eighth Circuit stated in dicta that in an appropriate case, a motion by the government may not be necessary in order for the sentencing court to consider a downward departure under 5K1.1 for “substantial assistance.” Here, the district court found that an alternative method of relief is available for a defendant who pleads guilty, i.e. specific performance of the plea agreement. However, based on the affidavits submitted by both parties, the court concluded that the defendant did not provide substantial assistance and therefore the plea agreement was not breached. U.S. v. Nelson, 717 F.Supp. 682 (D.Minn. 1989).
Virginia District Court rules reduction for cooperation is permissible even if it is below the minimum mandatory term. (710) Even though a defendant would be subject to a minimum mandatory sentence, a district court may depart below that sentence under 18 U.S.C. § 3553(e) when the defendant substantially assists the authorities. The district court held that conspiracy to commit a drug offense was not subject to the minimum mandatory provisions of 21 U.S.C. But even if it were, the district court’s downward departure below that mandatory minimum would be permissible where the defendant cooperated. The court found that departure was warranted here. U.S. v. Campbell, 704 F.Supp. 661 (E.D.Va. 1989).
Article argues that substantial assistance departures have proven to be a valuable tool for prosecutors. (710) Two Chicago AUSAs argue that the use of substantial assistance downward departure motions “provided law enforcement officers with the necessary leverage to secure witnesses against the largest and most brutal street gang in the midwest”–the “Gangster Disciples.” The resulting witnesses “ultimately helped secure evidence with toppled the gang’s hierarchy,” including the kingpin himself, who ran the 30,000-member crack cocaine organization from prison. The authors conclude that “the power of the Section 5K1.1 downward departure allowed the government to penetrate an insidious criminal organization otherwise thought to be impenetrable.” Ronald S. Safer and Matthew C. Crowl, Substantial Assistance Departures: Valuable Tool or Dangerous Weapon? 12 FED. SENT. RPTR. 41 (July-August 1999).
Author describes limits on prosecutor’s decision not to file a substantial assistance motion. (710) Defense attorney Alan Ellis argues that “there is little distinction between agreements that provide that the government will file a § 5K1.1 motion if the defendant provides substantial assistance and those in which the government, retaining ‘unfettered’ and ‘sole’ discretion, may do so if the defendant renders substantial assistance.” Both agreements still require the government to act “in good faith” and to demonstrate that the prosecutor’s refusal to file is not based on an unconstitutional motive or unrelated to a legitimate government end. The author summarizes recent substantial assistance cases and concludes that “it appears the § 5K1.1 motions are no longer solely the province of the prosecution.” Alan Ellis, Downward Departures, Part 6: Substantial Assistance, ABA CRIMINAL JUSTICE 53 (Spring 1999).
Commission issues report on substantial assistance departures. (710) In an exploratory report dated January, 1998, the Sentencing Commission staff reported the results of a study of U.S. Attorney’s Offices’ policies regarding substantial assistance departures under guideline section 5K1.1. The report found that “substantial assistance” has not been given a consistent meaning and this has resulted in inequities. Substantial assistance departures are granted in about nineteen percent of all cases. However, the Commission’s survey of U.S. Attorney’s offices found a lack of uniformity in the criteria for deciding what conduct merits a substantial assistance motion, and the extent of the government’s recommended departure. The report can be downloaded from the Commission’s web site, http://www.ussc.gov. Linda Drazga Maxfield and John H. Kramer, Substantial Assistance: An Empirical Yardstick Gauging Equity in Current Federal Policy and Practice, U.S. SENTENCING COMMISSION, Jan. 1998.
Article urges limiting prosecutor’s power over substantial assistance departures. (710) Professor Cynthia Lee argues that the prosecutor’s power over substantial assistance departures is greater than originally contemplated. She suggests that the U.S. Department of Justice, or a body of United States Attorneys, should establish nationwide guidelines on substantial assistance. These guidelines would offer consistency and visibility. She then argues that to ensure compliance, deviations from the new guidelines should be reviewable by the sentencing judge. Cynthia Y.K. Lee, From Gatekeeper to Concierge: Reigning in the Federal Prosecutor’s Expanding Power Over Substantial Assistance Departures, 50 RUTGERS L. REV. 199 (1997).
Articles discuss substantial assistance departures. (710) The Federal Sentencing Reporter reprints two studies of substantial assistance departures: Linda Drazga Maxfield and John H. Kramer, Substantial Assistance: An Empirical Yardstick Gauging Equity in Current Federal Policy and Practice (January 1998), and Substantial Assistance Working Group, Federal Court Practices: Sentence Reductions Based on Defendant’s Substantial Assistance to the Government (May, 1997). Yale Professor Daniel Freed provides an overview of these studies and recent substantial assistance departure cases, noting that in light of the Supreme Court’s decision in Koon v. U.S., 518 U.S. 81, 116 S.Ct. 2035 (1996) some courts have been willing to entertain substantial assistance claims under the omnibus departure language of 18 U.S.C. § 3553(b) rather than exclusively under guideline section 5K1.1. Daniel J. Freed, Reexamining Substantial Assistance: Part One, 11 FED. SENT. RPTR. 3 (July-August, 1998).
Article urges amendments to equalize sentences of co-defendants who possess different quantities of useful information. (710) Antoinette Marie Tease examines the situation in which co-defendants receive different sentences because only one of these was able to provide sufficient information to prosecutors to receive a departure for substantial assistance. The author’s primary focus is on cases in which this scenario results in the more culpable co-defendant receiving a lesser sentence than a less culpable co-defendant who lacked information. After reviewing cases in which courts have upheld both the government motion requirement and substantial assistance departures generally and have generally rejected downward departures aimed at equalizing disparities among co-defendants’ sentences, the author advocates amending the guidelines either to authorize downward departures to equalize sentences or to limit the extent of downward departures based on substantial assistance so that the resulting sentence cannot be less than that for a less culpable co-defendant. Antoinette Marie Tease, Downward Departures for Substantial Assistance — A Proposal for Reducing Sentencing Disparities Among Codefendants, 53 MONTANA L. REV. 75-90 (1992).
Commission amends 1B1.8 to authorize use of cooperation information to depart downward. (710) In an amendment effective November 1, 1992, the Commission amended U.S.S.G. section 1B1.8 to provide that information obtained during a cooperation agreement may be considered in determining whether to depart downward from the guidelines pursuant to a government motion for substantial assistance under section 5K1.1.