PER CURIAM:
Appellant Anthony Chotas was indicted on one count of conspiracy to possess with the intent to distribute cocaine in violation of 21 U.S.C.A. § 846 and one count of aiding and abetting the possession with intent to distribute cocaine in violation of 21 U.S.C.A. § 841(a)(1) and 18 U.S.C.A. § 2. He was convicted on both counts after a jury trial. At Chotas’ sentencing hearing, the district court determined that the applicable offense level under the Sentencing Guidelines was a level 22, thus exposing Chotas to 41 to 51 months of imprisonment. Despite the absence of a motion from the government — indeed, over the government’s objections — the district court further determined that Chotas was entitled to a downward departure from this guideline range pursuant to Sentencing Guidelines § 5K1.1 policy statement (Oct. 1987) (hereinafter § 5K1.1) because of his substantial [898]*898assistance to the government in the prosecution of his co-defendant. Chotas appeals on the ground that the evidence presented at trial was insufficient to support his conviction. The government cross-appeals, arguing that the district court misapplied the sentencing guidelines in departing downward under § 5K1.1 in the absence of a motion by the government advocating such a departure. Alternatively, the government argues that even if the district court did not misapply the guidelines in departing downward under § 5K1.1, such downward departure was not warranted by the facts of this case.
A. Sufficiency of the Evidence
Chotas argues that there was insufficient evidence to sustain his conviction for conspiracy and for aiding and abetting the possession with intent to distribute cocaine. In reviewing a jury verdict that is challenged as insufficiently supported by the evidence, we view the evidence in the light most favorable to the government. See Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942); United States v. Miller, 693 F.2d 1051, 1053 (11th Cir.1982). The verdict will be upheld if “a reasonable trier of fact could find the evidence establishes guilt beyond a reasonable doubt.” United States v. Bell, 678 F.2d 547, 549 (5th Cir. Unit B 1982) (en banc), aff'd on other grounds, 462 U.S. 356, 103 S.Ct. 2398, 76 L.Ed.2d 638 (1983). Having reviewed the record, and viewing the evidence in the light most favorable to the government, we conclude that a reasonable jury could find that the evidence established guilt beyond a reasonable doubt. Chotas’ conviction is thus affirmed.
B. Departure under § 5K1.1
Section 5K1.1 provides in relevant part: “Upon motion of the government stating that the defendant has made a good faith effort to provide substantial assistance in the investigation or prosecution of another person who has committed an offense, the court may depart from the guidelines.” § 5K1.1 (emphasis added).1 This case presents an issue recently decided by this court in United States v. Alamin, 895 F.2d 1335 (11th Cir.1990): is a governmental motion advocating departure from the applicable guideline range a prerequisite for departure under § 5K1.1? Alamin answered this question in the affirmative. “[Wjithout a motion by the government requesting a departure, the district court may not depart from the guidelines on the ground of substantial assistance.” Id. at 1337.
Chotas presents arguments contrary to the holding in Alamin. These arguments will be discussed briefly. Chotas primarily argues that § 5K1.1 is a policy statement only, which should be considered by the sentencing court, but which is not binding upon the sentencing court. Citing the Seventh Circuit’s recent decision in United States v. Franz, 886 F.2d 973 (7th Cir.1989), Chotas also argues that we lack jurisdiction to determine whether his sentence is inconsistent with this policy statement.
We initially address Chotas’ argument that we lack jurisdiction to review this case. As we recently established in United States v. Fossett, 881 F.2d 976 (11th Cir.1989), our jurisdiction to review the sentence imposed by the district court derives from 28 U.S.C. § 1291 (1982).2 The Sentencing Reform Act of 1984, Pub.L. No. 98-473, § 211, 98 Stat. 1987 (codified, as [899]*899amended, in scattered sections of 18 and 28 U.S.C.A.) (“Sentencing Reform Act”) does not alter this proposition. Fossett, 881 F.2d at 979. Rather, section 213 of the Sentencing Reform Act (codified, as amended at 18 U.S.C.A. § 3742 (West 1985 & Supp.1989) (hereinafter § 3742),3 which discusses appellate review of a sentence, “defines the claims that the court of appeals may hear in reviewing an appeal.” Fossett, 881 F.2d at 979. We further established in Fossett that this provision of the Sentencing Reform Act does not allow a defendant to challenge on appeal a refusal by the district court to make a downward departure from the guideline range. However, a challenge not to the merits of a district court’s refusal to depart but to the district court’s decision that it lacked the statutory authority to depart from the sentencing guideline range presents a cognizable claim on appeal under § 3742(a)(1), (2). Fossett, 881 F.2d at 979. It logically follows from this latter proposition that a challenge to the district court’s conclusion that it had the authority to depart when in fact it did not also presents a cognizable claim on appeal. See also United States v. Scroggins, 880 F.2d 1204, 1207 n. 5 (11th Cir.1989) (stating that a misinterpretation of the guidelines in fashioning the defendant’s sentence constitutes an incorrect application of the guidelines under § 3742(a)(2)). Accordingly, the government’s claim that the district court lacked the authority to depart under § 5K1.1 in the absence of a governmental motion presents a cognizable claim on appeal under § 3742(b)(2) as a misapplication of the sentencing guidelines.
Chotas relies on the Seventh Circuit’s decision in United States v. Franz, 886 F.2d 973 (7th Cir.1989), in asserting that we lack jurisdiction to review his sentence. In Franz, the Seventh Circuit determined that it lacked the appellate jurisdiction to review a district court’s refusal to depart downward from the applicable guideline range. While the Seventh Circuit thus reached the same result we reached in Fossett — that the defendant cannot review on appeal a district judge’s refusal to make a downward departure from the guideline range— it disagreed with our reasoning.
Free access — add to your briefcase to read the full text and ask questions with AI
PER CURIAM:
Appellant Anthony Chotas was indicted on one count of conspiracy to possess with the intent to distribute cocaine in violation of 21 U.S.C.A. § 846 and one count of aiding and abetting the possession with intent to distribute cocaine in violation of 21 U.S.C.A. § 841(a)(1) and 18 U.S.C.A. § 2. He was convicted on both counts after a jury trial. At Chotas’ sentencing hearing, the district court determined that the applicable offense level under the Sentencing Guidelines was a level 22, thus exposing Chotas to 41 to 51 months of imprisonment. Despite the absence of a motion from the government — indeed, over the government’s objections — the district court further determined that Chotas was entitled to a downward departure from this guideline range pursuant to Sentencing Guidelines § 5K1.1 policy statement (Oct. 1987) (hereinafter § 5K1.1) because of his substantial [898]*898assistance to the government in the prosecution of his co-defendant. Chotas appeals on the ground that the evidence presented at trial was insufficient to support his conviction. The government cross-appeals, arguing that the district court misapplied the sentencing guidelines in departing downward under § 5K1.1 in the absence of a motion by the government advocating such a departure. Alternatively, the government argues that even if the district court did not misapply the guidelines in departing downward under § 5K1.1, such downward departure was not warranted by the facts of this case.
A. Sufficiency of the Evidence
Chotas argues that there was insufficient evidence to sustain his conviction for conspiracy and for aiding and abetting the possession with intent to distribute cocaine. In reviewing a jury verdict that is challenged as insufficiently supported by the evidence, we view the evidence in the light most favorable to the government. See Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942); United States v. Miller, 693 F.2d 1051, 1053 (11th Cir.1982). The verdict will be upheld if “a reasonable trier of fact could find the evidence establishes guilt beyond a reasonable doubt.” United States v. Bell, 678 F.2d 547, 549 (5th Cir. Unit B 1982) (en banc), aff'd on other grounds, 462 U.S. 356, 103 S.Ct. 2398, 76 L.Ed.2d 638 (1983). Having reviewed the record, and viewing the evidence in the light most favorable to the government, we conclude that a reasonable jury could find that the evidence established guilt beyond a reasonable doubt. Chotas’ conviction is thus affirmed.
B. Departure under § 5K1.1
Section 5K1.1 provides in relevant part: “Upon motion of the government stating that the defendant has made a good faith effort to provide substantial assistance in the investigation or prosecution of another person who has committed an offense, the court may depart from the guidelines.” § 5K1.1 (emphasis added).1 This case presents an issue recently decided by this court in United States v. Alamin, 895 F.2d 1335 (11th Cir.1990): is a governmental motion advocating departure from the applicable guideline range a prerequisite for departure under § 5K1.1? Alamin answered this question in the affirmative. “[Wjithout a motion by the government requesting a departure, the district court may not depart from the guidelines on the ground of substantial assistance.” Id. at 1337.
Chotas presents arguments contrary to the holding in Alamin. These arguments will be discussed briefly. Chotas primarily argues that § 5K1.1 is a policy statement only, which should be considered by the sentencing court, but which is not binding upon the sentencing court. Citing the Seventh Circuit’s recent decision in United States v. Franz, 886 F.2d 973 (7th Cir.1989), Chotas also argues that we lack jurisdiction to determine whether his sentence is inconsistent with this policy statement.
We initially address Chotas’ argument that we lack jurisdiction to review this case. As we recently established in United States v. Fossett, 881 F.2d 976 (11th Cir.1989), our jurisdiction to review the sentence imposed by the district court derives from 28 U.S.C. § 1291 (1982).2 The Sentencing Reform Act of 1984, Pub.L. No. 98-473, § 211, 98 Stat. 1987 (codified, as [899]*899amended, in scattered sections of 18 and 28 U.S.C.A.) (“Sentencing Reform Act”) does not alter this proposition. Fossett, 881 F.2d at 979. Rather, section 213 of the Sentencing Reform Act (codified, as amended at 18 U.S.C.A. § 3742 (West 1985 & Supp.1989) (hereinafter § 3742),3 which discusses appellate review of a sentence, “defines the claims that the court of appeals may hear in reviewing an appeal.” Fossett, 881 F.2d at 979. We further established in Fossett that this provision of the Sentencing Reform Act does not allow a defendant to challenge on appeal a refusal by the district court to make a downward departure from the guideline range. However, a challenge not to the merits of a district court’s refusal to depart but to the district court’s decision that it lacked the statutory authority to depart from the sentencing guideline range presents a cognizable claim on appeal under § 3742(a)(1), (2). Fossett, 881 F.2d at 979. It logically follows from this latter proposition that a challenge to the district court’s conclusion that it had the authority to depart when in fact it did not also presents a cognizable claim on appeal. See also United States v. Scroggins, 880 F.2d 1204, 1207 n. 5 (11th Cir.1989) (stating that a misinterpretation of the guidelines in fashioning the defendant’s sentence constitutes an incorrect application of the guidelines under § 3742(a)(2)). Accordingly, the government’s claim that the district court lacked the authority to depart under § 5K1.1 in the absence of a governmental motion presents a cognizable claim on appeal under § 3742(b)(2) as a misapplication of the sentencing guidelines.
Chotas relies on the Seventh Circuit’s decision in United States v. Franz, 886 F.2d 973 (7th Cir.1989), in asserting that we lack jurisdiction to review his sentence. In Franz, the Seventh Circuit determined that it lacked the appellate jurisdiction to review a district court’s refusal to depart downward from the applicable guideline range. While the Seventh Circuit thus reached the same result we reached in Fossett — that the defendant cannot review on appeal a district judge’s refusal to make a downward departure from the guideline range— it disagreed with our reasoning. The court pronounced § 3742 a jurisdictional statute, establishing "those cases in which the defendant or the government is authorized to appeal.” Id. at 981. It further determined that departure-related decisions could not be challenged as “misapplications of the sentencing guidelines” under § 3742(a)(2). As the Franz court noted, this latter determination also conflicts with our holding in Fossett that challenges to the sentencing court’s refusal to depart when the sentencing court believed it lacked the statutory authority to depart could constitute a misapplication of the sentencing guidelines. We decline to undertake an in-depth analysis of our disagreement with the Seventh Circuit, particularly in view of the fact the present case is readily distinguishable from [900]*900Franz in that it involves not a refusal to depart from the guidelines but the court’s departure from the guidelines. ■ Suffice it to say that our decision in Fossett remains the controlling law in this jurisdiction and in view of it, Chotas’ argument that the Franz decision suggests we lack jurisdiction to review his sentence is without merit.
Having determined that we may properly review Chotas’ sentence, we next note the applicable standard of review of this issue. This question of whether a district court may depart downward from the applicable guideline range under § 5K1.1 in the absence of a governmental motion is a pure question of law subject to our de novo review. United States v. Scroggins, 880 F.2d 1204, 1206 n. 5 (11th Cir.1989). Because we determine that the district court erred as a matter of law in departing downward under § 5K1.1 absent a governmental motion, we need not consider whether the district court’s factual finding that Chotas provided substantial assistance in his co-defendant’s prosecution is clearly erroneous. See § 3742(e).
We now turn to the merits of this issue. 18 U.S.C.A. § 3553(b) (West Supp.1989) sets forth the procedure for imposing a sentence below the guideline range. The district court is instructed to impose a sentence of the type and within the range of the guidelines “unless the court finds there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence different from that described.” Id. The Commission’s guidelines, policy statements and official commentary are the only sources to be considered in determining whether the Commission took into account a certain circumstance. Id. Since section 3553(b) constitutes the statutory authority for departure from the guidelines on the basis of mitigating or aggravating circumstances, a district court’s departure must be in accordance with this provision. If the Commission did not adequately consider a certain circumstance, then the sentencing court may depart from the guideline based on that circumstance, citing section 3553(b) as its authority. Conversely, if the Commission did adequately consider a certain aggravating or mitigating circumstance, departure must be in accordance with the Commission’s directive. Cf. United States v. Justice, 877 F.2d 664, 667 (8th Cir.1989) (holding that because the Commission has adequately considered the mitigating circumstance of a defendant’s assistance in the prosecution of another, departure under section 3553(b) would be improper; departure for substantial assistance must be pursuant to § 5K1.1).
Section 5K1.1 indicates that the Commission did explicitly consider a defendant’s cooperation in the prosecution of another a mitigating circumstance that may warrant departure from the applicable guideline range. See United States v. Taylor, 868 F.2d 125 (5th Cir.1989); United States v. Justice, 877 F.2d 664 (8th Cir.1989); United States v. Donatiu, 720 F.Supp. 619 (N.D.Ill.1989). Since the Commission did consider this circumstance, even if in “only” a policy statement, we hold that the district court must adhere to § 5K1.1 — and thus its governmental motion prerequisite — in departing from the guideline range for this mitigating circumstance. United States v. Alamin, 895 F.2d 1335 (11th Cir.1990); see also Donatiu, 720 F.Supp. at 624 (citing Justice, 877 F.2d at 666; Taylor, 868 F.2d at 128). This holding is in accordance with the statutory mandate of 18 U.S.C.A. § 3553(a)(5), which requires the district court to consider “any pertinent policy statement ... in effect oh the date the defendant is sentenced” in imposing a sentence.
We find further support for this holding in several decisions of other circuits, which have upheld § 5K1.1 against various constitutional challenges.4 In determining that § 5K1.1 implements the congressional directive of 28 U.S.C.A. § 994(n) (West Supp.1989),5 the Fifth Circuit has reasoned that [901]*901the motion requirement is “predicated on the reasonable assumption that the government is in the best position to supply the court with an accurate report of the extent and effectiveness of the defendant’s assistance....” United States v. White, 869 F.2d 822, 829 (5th Cir.1989); see also United States v. Grant, 886 F.2d 1513 (8th Cir.1989); United States v. Ayarza, 874 F.2d 647 (9th Cir.1989). Similarly, this motion requirement has survived due process challenges, see Grant, 886 F.2d at 1513, challenges that it erodes the sentencing court’s inherent power to consider all factors pertinent to sentencing, see id., and separation of powers challenges. See Ayarza, 874 F.2d at 647. We note that the governmental motion prerequisite clause of § 5K1.1 tracks the statutory language of 18 U.S.C.A. § 3553(e) (West Supp.1989),6 which Congress itself drafted to provide for departures below the statutory minimum only upon motion of the government. See Alamin at 1337. In United States v. Musser, 856 F.2d 1484 (11th Cir.1988), we upheld section 3553(e)’s motion prerequisite against constitutional challenges, observing that the only authority delegated by the rule is the “authority to move the district court for a reduction of sentence_” Id. at 1487.
We also realize that several courts have attempted to fashion a remedy or carve out an exception to § 5K1.1 in the rare situations in which the government in bad faith refuses to file a motion to depart. See, e.g., Justice, 877 F.2d at 664 (expressing the opinion that “in an appropriate case the district court may be empowered to grant a departure notwithstanding the government’s refusal to motion” but declining to decide the issue based on the record before it); United States v. White, 869 F.2d 822 (5th Cir.1989) (stating in dicta that § 5K1.1 “obviously does not preclude a district court from entertaining a defendant’s showing that the government is refusing to recognize such substantial assistance”); United States v. Coleman, 707 F.Supp. 1101 (W.D.Mo.1989) (construing the government’s letter to the court that detailed the defendants’ assistance to the government as a motion for departure under § 5K1.1); United States v. Golan, No. 89 CR 198, 1989 WL 63110 (S.D.N.Y. June 8, 1989) (WESTLAW, Federal Library, Dist. file) (entertaining the defendant’s motion to compel the government to move for a downward departure under section 3553(e) and § 5K1.1 and ordering the government to file a detailed statement of any assistance rendered by the defendant). We need not address this related question because Chotas has not presented this issue to this court.
C. Conclusion
Chotas’ conviction is AFFIRMED. For the reasons stated above, the district court misapplied the guidelines in departing downward under § 5K1.1 in the absence of a governmental motion suggesting such departure. Pursuant to 18 U.S.C.A. § 3742(f)(1) (West Supp.1989), we REMAND this case to the district court for resentencing in accordance with the principles set forth above.