United States v. Alicia Rodriguez-Morales A/K/A Gloria Hernandez

958 F.2d 1441

• Court: Court of Appeals for the Eighth Circuit
• Decided: April 27, 1992
• Docket: 91-2355
• Status: Published

Opinions

JOHN R. GIBSON, Circuit Judge.

Alicia Rodriguez-Morales pleaded guilty to a charge of possession with intent to distribute 50 or more grams of cocaine base in violation of 21 U.S.C. § 841(a)(1) (1988) and (b)(1)(A) (West Supp.1991). The district court sentenced Rodriguez to thirty six months’ imprisonment and five years of supervised release. The United States appeals Rodriguez’s sentence because the district court departed below the statutory mandatory minimum sentence of 120 months without a government motion pursuant to 18 U.S.C. § 3553(e) (1988) requesting such a departure, even though the government had filed a motion to depart under United States Sentencing Guideline Section 5K1.1. We reverse and remand for resentencing.

On October 12, 1990, law enforcement officers arrested Rodriguez at the Kansas City International Airport after she admitted during a lawful investigative stop that she was carrying crack cocaine in her luggage. A search of her luggage revealed 7,974.8 grams of crack cocaine. Rodriguez said that she was delivering the crack from Ontario, California, to a person in Kansas City whom she knew only as “Mike.” Rodriguez agreed to cooperate with the government agents and assist them in making a controlled delivery to Mike. The agents accompanied Rodriguez to a motel, where she allowed them to tape record telephone conversations she made to arrange Mike’s pickup of the crack. When Michael Garrett arrived at the motel, agents arrested him.

On October 16, 1990, Rodriguez and Garrett were indicted for conspiracy to possess with intent to distribute 50 or more grams of cocaine base in violation of 21 U.S.C, §§ 841(a)(1), (b)(1)(A), and 846. The government filed a superseding indictment, adding a count charging Rodriguez with possession with intent to distribute cocaine base in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A).

On December 5, 1990, Rodriguez and the government entered into a plea agreement. Rodriguez agreed to plead guilty to the possession count in exchange for the government’s promise to drop the conspiracy count. The plea agreement also stated that if Rodriguez provided “substantial assistance as determined by the United States and defined in § 5K1.1 of the Sentencing Guidelines, prior to sentencing, the United States [would] file a motion authorizing the Court to depart downward from the Sentencing Guidelines and the statutory minimum pursuant to Title 18, United States Code, Section 3553(e).” (Emphasis in original).

Rodriguez gave a deposition to preserve her testimony for Garrett’s trial because she was in the late stages of a pregnancy, and hence, uncertain as to whether she would be available at trial. Although it turned out that Rodriguez was available to testify at Garrett’s trial, the government decided not to call her when it learned that she had testified untruthfully during her deposition that she had never been to Kansas City before her arrest on October 12, 1990. The government believed that it could not call Rodriguez as a witness because “her credibility had been so destroyed that we couldn’t use her.” Garrett was nevertheless convicted on both charges. United States v. Garrett, 948 F.2d 474 (8th Cir.1991).

Before Rodriguez’s sentencing, the government filed a motion for downward departure pursuant to section 5K1.1 of the Sentencing Guidelines, based on Rodriguez’s “substantial assistance to the government in the investigation of Michael Garrett." The government stressed that its motion was “pursuant to Section 5K1.1 only and in no way alters or affects the mandatory minimum sentence applicable in this case pursuant to 21 U.S.C. §§ 841(a)(1) and (b)(1)(A).” The mandatory minimum sentence for Rodriguez’s violation was 120 months’ imprisonment, while the sentencing guidelines provided for a range of 235-295 months’ imprisonment.

The district judge sentenced Rodriguez to 36 months’ imprisonment and five years of supervised release, relying on United States v. Keene, 933 F.2d 711 (9th Cir.1991), for authority to depart below the statutory minimum pursuant only to a 5K1.1 motion. The government objected that under its 5K1.1 motion, the court was allowed to depart only down to the statutory minimum. The government then appealed Rodriguez’s sentence.

The issue is one of first impression in this circuit: whether a sentencing judge can depart below the statutory mandatory minimum sentence when the government has moved for a downward departure for substantial assistance pursuant to United States Sentencing Guidelines section 5K1.1, and not pursuant to 18 U.S.C. section 3553(e). The underlying question is whether sections 5K1.1 and 3553(e) provide for two different types of departure, as the government contends, or whether they are intended to perform the same function, as Rodriguez claims. Under the government’s view, only a section 3553(e) motion allows for departure below the mandatory minimum. Under Rodriguez’s view, section 5K1.1 is merely an implementation of section 3553(e), and, therefore, the sentencing judge may depart below the mandatory minimum under a section 5K1.1 motion, just as he would be able to do with a section 3553(e) motion.

In 1984, Congress enacted section 3553(e) as part of the Omnibus Crime Bill. The statute reads as follows:

(e) Limited authority to impose a sentence below a statutory minimum.— Upon motion of the Government, the court shall have the authority 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. Such sentence shall be imposed in accordance with the guidelines and policy statements issued by the Sentencing Commission pursuant to section 994 of title 28, United States Code.

Title 28 of U.S.C. § 994(n) (1988), a part of the Sentencing Reform Act of 1984, states that the Sentencing Commission:

shall assure that the guidelines reflect the general appropriateness of imposing a lower sentence than would otherwise be imposed, including a sentence that is lower than that established by statute as minimum sentence, to take into account a defendant’s substantial assistance in the investigation or prosecution of another person who has committed an offense.

The Sentencing Commission promulgated section 5K1.1 of the Guidelines, which provides in part: “Upon motion of the government stating that the defendant has provided substantial assistance in the investigation or prosecution of another person who has committed an offense, the court may depart from the guidelines.”

While this court has not yet considered the specific issue in this case, we have compared section 5K1.1 with section 3553(e) in a number of decisions. See, e.g., United States v. Spees, 911 F.2d 126, 127 (8th Cir.1990); United States v. Oransky, 908 F.2d 307, 309 (8th Cir.1990); United States v. Coleman, 895 F.2d 501, 504-05 & n. 5 (8th Cir.1990); United States v. Grant, 886 F.2d 1513, 1514 (8th Cir.1989); United States v. Justice, 877 F.2d 664, 666-67 (8th Cir.), cert. denied, 493 U.S. 958, 110 S.Ct. 375, 107 L.Ed.2d 360 (1989).

In Coleman, we referred to section 5K1.1 as being section 3553(e)’s counterpart and we said that “although the two sections can have different effects, their requirement of a government motion before departure in recognition of a defendant’s substantial assistance is identical; the requirement is clear and unambiguous.” 895 F.2d at 504 (footnote omitted). We observed that section 3553(e) specifically refers to mandatory minimum statutory sentences, while 5K1.1 refers to departure below the guideline range. Id. at 504 n. 5. We held “that in order for a court to depart based upon substantial assistance under § 3553(e) from a mandatory minimum sentence, the government must first file a motion under § 3553(e).” Id. at 505 (citation omitted). While Coleman did not face the issue now before us,¹ it underscored the requirement that the government file a motion under section 3553(e) before the judge can depart below statutory mandatory minimum sentences. But see United States v. Carnes, 945 F.2d 1013, 1014 (8th Cir.1991) (after government filed 5K1.1 motion, the court, in affirming a sentence including a five year minimum sentence for a firearm charge, stated in dictum that “the district court understood its authority to impose a sentence of less than five years, but chose not to do so.”).

In this case, the government specifically filed a section 5K1.1 motion under the Guidelines, and expressly refused to file a motion under section 3553(e). Whether a distinction exists between the motion under the statute and the one under the Guidelines is thus critical to our decision in this case. Section 994(n) explicitly requires that the Guidelines reflect the general appropriateness of imposing lower sentences for substantial assistance, including those below the mandatory minima. When we look at section 5K1.1, it is evident that this policy statement authorizes departure from the Guidelines range. Even though section 994(n) states that the Commission “shall assure” that the Guidelines reflect the general appropriateness of a departure below both the Guidelines and mandatory minimum sentences, section 5K1.1 by its plain terms makes no mention of departure below mandatory minimums — only departure from the Guidelines range. In section 5Kl.l’s commentary, under “Application Notes,” the following statement appears:

1. Under circumstances set forth in 18 U.S.C. § 3553(e) and 28 U.S.C. § 994(n), as amended, substantial assistance in the investigation or prosecution of another person who has committed an offense may justify a sentence below a statutorily required minimum sentence.

We do not read this application note to equate a motion under section 5K1.1 with one under section 3553(e). The note is little more than an academic observation that, under the circumstances set forth in sections 994(n) and 3553(e), “a sentence below the statutorily required minimum sentence” may be justified. The two statutes plainly refer to departures below statutorily mandated minimums, but only section 3553(e) makes specific reference to a government motion to depart below mandatory minimum sentences. In spite of section 994(n), the Commission has not provided for departures below the mandatory minimum sentence in the plain language of section 5K1.1, and nothing in the application notes states that it has. While we are aware that U.S.S.G. § 1B1.7 (1991) instructs us that Guideline commentary can assist us in interpreting guidelines and provide useful background information, see United States v. Smeathers, 884 F.2d 363, 364 (8th Cir.1989), the commentary to section 5K1.1 does not explicitly state that a motion under the guideline authorizes departures below the statutory minimum.

The statutes plainly empower the Sentencing Commission to provide for departures below the statutory minimum.² However, Section 5K1.1 does not state that a 5K1.1 motion applies to mandatory minimum sentences, or is the equivalent of a section 3553(e) motion. Thus, the only authority for the district court to depart below the statutorily mandated minimum sentence exists in the plainly stated limitation in section 3553(e). The government made it clear that it was not filing a motion pursuant to that statute. Because a section 3553(e) motion is the key to unlocking the door to consideration of this issue by the sentencing judge, we can only conclude that the district court erred in departing below the mandatory minimum absent such a motion.

Congress in recent years has enacted numerous statutes containing mandatory minimum sentences. Many, if not most, federal judges have expressed disapproval of such sentences. The Federal Courts Study Committee has recommended repeal of these statutes. Report of the Federal Courts Study Committee, April 2, 1990, 133-34. Little is to be gained by cataloging other individuals who have spoken or written in support of this proposition. The statutory mandatory minimum sentences are in force, continue to be enacted, and reflect Congress’s determined belief that they are necessary provisions. This reinforces our view that judges can depart below the statutory minimum only under the procedure Congress has provided; namely, section 3553(e), particularly since the Commission has not implemented its grant of authority.

If our decision places undue discretion in the hands of district attorneys, it has been placed there by Congress and by the Sentencing Commission’s failure to draft a guideline or policy statement dealing with departure below statutorily mandated minimum sentences. Whether the Commission intended to give the prosecution two alternative motions for substantial assistance departures — thus allowing the government to set the parameters of the district court’s discretion — section 5K1.1 as drafted has created such a result. We are left with no choice but to hold that the sentencing judge may not depart below the statutory minimum pursuant to a motion under section 5K1.1 alone. Only a section 3553(e) motion allows for such a departure.

Rodriguez relies on the one circuit case decided at the time of argument dealing with the specific issue before us, United States v. Keene, 933 F.2d 711 (9th Cir.1991). The facts in Keene are similar to this case. The defendant pleaded guilty to a charge of conspiracy to possess and distribute 437 kilograms of cocaine, which carried a statutory mandatory minimum sentence of 120 months. The calculated sentencing range under the Guidelines was 188 to 235 months. Id. at 712. The government moved for a downward departure for Keene’s substantial assistance, emphasizing that it was acting pursuant to section 5K1.1, and not section 3553(e). The district court sentenced the defendant to 36 months’ imprisonment. Id.

In upholding the district court’s sentence, the Ninth Circuit held that a sentencing judge can depart below the statutory mandatory minimum when the government files a substantial assistance motion pursuant only to section 5K1.1. Id. at 714. The court concluded that “994(n) and 5K1.1 do not create a separate ground for a motion for reduction below the Guidelines exclusive of 3553(e)’s provision for reduction below the statutory minimum.” Id. Rather, the Sentencing Commission “carried out the mandate of section 994(n) by adopting Section 5K1.1 of the Sentencing Guidelines.” Id. at 713. The Keene majority states that it did not make sense to allow the prosecution “to set the parameters of the [district] court’s discretion.” Id. at 714.

We are not persuaded by the Keene majority’s reasoning equating the two motions, but are convinced that the Keene dissent is particularly instructive. Judge Alarcon, in his dissent, states, “The majority’s interpretation of section 5K1.1 as ‘implementing’ section 3553(e) in fact renders the entire statute surplusage and is contrary to the intent of Congress.” 933 F.2d at 723. Judge Alarcon vigorously argues that the cases the majority relies upon to support its statement that 5K1.1 simply implements section 3553(e), and to demonstrate the similarity between the policy statement and the statute, do not sustain the majority’s conclusions. Id. at 719-21. He asserts that until the majority’s decision, no court had held that a district court is authorized to impose a sentence less than what Congress has required without a government motion pursuant to section 3553(e). Id. at 721. He further states that “when a statute requires a sentence different than that set by the guidelines, the statute controls.” Id. at 722 (citation omitted). Judge Alarcon makes the telling point that the majority in Keene ignored the language in section 3553(e) “that the district court lacks the power to disregard the mandatory provisions of a sentencing statute unless the Government makes a motion that the court impose a sentence that is ‘below a level established by statute.’ ” Id. at 721-22. Finally, he looks to our Coleman decision and its statement that section 3553(e) and 5K1.1 have discrete functions. Id. at 722-23.³

While this appeal was pending, the Second Circuit in United States v. Ah-Kai, 951 F.2d 490 (2d Cir.1991), reached a conclusion similar to Keene, relying primarily on Keene’s reasoning. Beyond its reliance on Keene, Ah-Kai refers to the statutory scheme and powers of the Sentencing Commission, as well as various guidelines, policy statements, and guideline commentary.⁴ These general references do not demonstrate that Ah-Kai came to grips with the wording of section 3553(e) or the wording of section 5K1.1. Nor does the reasoning of Ah-Kai, based on the same showing of “substantial assistance” in both 5K1.1 and 3553(e), give persuasive weight to the position there asserted. Suffice it to say Ah-Kai is no more persuasive to us than Keene5

Many courts have, in dicta, discussed the boundaries of both section 3553(e) and 5K1.1. Some courts have hinted at the notion that a sentencing judge can depart below the statutory minimum pursuant to the government’s section 5K1.1 motion.⁶ Other courts emphasize that once the government moves for downward departure, the sentencing judge has complete discretion to depart however far she desires.⁷ Finally, some courts opine that section 5K1.1 implements or incorporates section 3553(e),⁸ while other courts view sections 5K1.1 and 3553(e) as serving two separate functions.⁹ We do not find these comments persuasive, since they were made by courts that were not deciding the specific issue before us.

We conclude that a sentencing judge may not depart below the statutory mandatory minimum sentence under a government motion pursuant to section 5K1.1 of the Guidelines for departure based on a defendant’s substantial assistance. Only a government motion based on section 3553(e) will allow the court to depart below the mandatory minimum.

We reverse the sentence of Rodriguez, and remand the case to the district court to impose a sentence no lower than the statutory minimum of 120 months.

1 . The issue in Coleman was "whether a government motion under § 3553(e) is specifically required before the court may depart from the mandatory minimum sentence imposed by statute.” 895 F.2d at 502. The defendant argued that cooperation letters the government had filed were the "functional equivalent of a § 3553(e) motion,” since the government had not filed any motion at all. Id. at 504.

2 . Indeed, section 994(n), while requiring the Commission to assure that the Guidelines "reflect the general appropriateness” of imposing lower sentences, conceivably can be read as mandating that the Commission provide for departures below the statutory minimum. Most evidently, the Commission has not done so. Whether this presents a problem under Chevron US.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-43 & n. 9, 104 S.Ct. 2778, 2781-82 & n. 9, 81 L.Ed.2d 694 (1984), is not an issue that has been raised in this case.

3 . Interestingly, as Judge Alarcon points out, the Keene majority attempts to distinguish Coleman on the ground that it deals with what government action is necessary to make a motion. Id. at 713, 715. The majority then reluctantly admits that our court held that the government must specifically file a motion under section 3553(e) to authorize sentences below the mandatory minimum, and may not rely upon informal letters. Id. Keene essentially ignores the chain in Coleman’s reasoning that a government motion under section 3553(e) is the requirement for departures below the statutorily mandated minimum sentences, a conclusion mandated by the plain language of the statute.

4 . Kg., U.S.S.G. § 1B1.7; U.S.S.G. § 5K1.1 comment. n. 1; U.S.S.G. § 2D1.1. Ah-Kai generously reads a commentary to section 2D1.1, comment. n. 7, to support the contention that the Sentencing Commission "perceives § 5K1.1 as covering departures both from ‘mandatory (statutory) minimum’ sentences and from the guidelines." 951 F.2d at 493. To identify the Commission’s "perception,” however, falls far short of discovering language within section 5K1.1 demonstrating that the Sentencing Commission drafted 5K1.1 to allow for both departures. The plain language used in section 5K1.1 refers only to the Guidelines, and Ah-Ka¡s reliance on the Commission’s perception does little to decide the question before us.

5 . Ah-Kai also attempts to limit the holding of Coleman, describing it as “inapposite” to the issue at hand. 951 F.2d at 493. We find Coleman instructive and part of the precedential warp upon which we must attempt to weave some meaning from the guidelines, policy statements, and statutes.

6 . E.g., United States v. Wade, 936 F.2d 169, 171 (4th Cir. (citing Application Note 1 to § 5K1.1 and Keene, court says that "section 5K1.1 governs all departures from guideline sentencing for substantial assistance, and its scope includes departures from mandatory minimum sentences permitted by 18 U.S.C. § 3553(e).”), cert. granted, — U.S. -, 112 S.Ct. 635, 116 L.Ed.2d 653 (1991). The Ah-Kai court cited this language in Wade to demonstrate that circuits have followed the Keene approach. 951 F.2d at 492. Wade, however, specifically addresses the question of the reviewability of government’s good faith in refusing to file a section 5K1.1 motion pursuant to a plea agreement. 936 F.2d at 171—72. Wade merely states that absent a government motion, the district court has no authority to depart downward. Wade does not bear the weight Ah-Kai gives it, as the general language, purely dictum, simply does not reach the issue before us in this case. See also United States v. Huerta, 878 F.2d 89, 91 (2d Cir.1989), cert. denied, 493 U.S. 1046, 110 S.Ct. 845, 107 L.Ed.2d 839 (1990) (section 5K1.1, promulgated by the Sentencing Commission pursuant to section 994, restates requirement of government motion before sentencing judge may depart below statutory minimum).

7 .E.g., United States v. Pippin, 903 F.2d 1478, 1485 (11th Cir.1990):

Once it has made a 5K1.1 motion, the government has no control over whether and to what extent the district court departs from the Guidelines, except that if a departure occurs, the government may argue on appeal that the sentence imposed was “unreasonable.” The government's power to make a 5K1.1 motion exists not to allow the government to determine the appropriate sentence for the defendant. Rather, the government has this authority because it “is in the best position to supply the court with an accurate report of the extent and effectiveness of the defendant’s assistance.”

See also United States v. Musser, 856 F.2d 1484, 1487 (11th Cir.1988), cert. denied, 489 U.S. 1022, 109 S.Ct. 1145, 103 L.Ed.2d 205 (1989) (in determining whether section 3553(e) impermissibly delegates unbridled discretion to the prosecution, court states that: “[t]he authority to actually reduce a sentence remains vested in the district court.”).

8 . Eg., United States v. Kuntz, 908 F.2d 655, 657 (10th Cir.1990) (5K1.1 "implements 18 U.S.C. 3553(e).”); United States v. Francois, 889 F.2d 1341, 1345 (4th Cir.1989), cert. denied, 494 U.S. 1085, 110 S.Ct. 1822, 108 L.Ed.2d 951 (1990) (the language of 5K1.1 "improved upon the language of 18 U.S.C. § 3553(e), because the Guidelines set forth examples of circumstances that should be considered in deciding whether sentence reduction is appropriate.”).

9 . United States v. Wilson, 922 F.2d 1336, 1342 (7th Cir.), cert. denied, - U.S. -, 112 S.Ct. 155, 116 L.Ed.2d 120 (1991).