United States v. Kevin M. Dawson

990 F.2d 1314, 301 U.S. App. D.C. 44, 1993 U.S. App. LEXIS 7887, 1993 WL 114153

Opinions

PER CURIAM:

Appellant Kevin M. Dawson was sentenced to 151 months’ incarceration after he pleaded guilty to drug-related offenses. At his sentencing hearings,¹ Dawson sought a downward departure pursuant to the policy statement comprising section 5K2.0 of the United States Sentencing Guidelines (Guidelines). Section 5K2.0 allows a departure from the prescribed sentencing range if no other provision of the Guidelines adequately addresses the defendant’s circumstances. The district court did not grant a downward departure because it concluded that the policy statement comprising section 5K1.1 of the Guidelines covers Dawson’s circumstances. On appeal, Dawson challenges on various theories the validity of the section 5K1.1 policy statement. Because Dawson did not make his challenges below, we will consider them on appeal only to decide whether the district court committed plain error. We conclude that the district court did not commit plain error and, accordingly, we affirm.

I.

As part of his written plea agreement, Dawson agreed to “testify[] completely and truthfully before any grand jury, or at any trial or other proceeding.” Government’s Appendix at R.10. Although he initially cooperated with the government, Dawson refused to testify at the trial of his codefendants. As a result, in part, of his refusal, the government dismissed its case against one codefendant and proceeded with a weakened case against the other, ultimately leading to the latter’s acquittal. Defendant’s Appendix at 24-25. According to Dawson, he refused to testify because threats were being made against his family but his family had declined police protection. At sentencing, Dawson contended that “the peculiar circumstances of his refusal to testify being based on a justifiable concern for the safety of his family is [sic] exactly the type of mitigating circumstance not adequately considered by the Sentencing Commission,” Defendant’s Memorandum in Aid of Sentencing at 2, and sought a downward departure under section 5K2.0 of the Guidelines. That section, entitled “Grounds for Departure (Policy Statement),” provides:

Under 18 U.S.C. § 3553(b) the sentencing court may impose a sentence outside the range established by the applicable guideline, if the court finds ‘that 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.’-

U.S.S.G. § 5K2.0, p.s.

At the first sentencing hearing, Dawson asked the court “to depart downward[] because in the end he had cooperated fully[ ] and ... his failure to testify, while it was his decision, was based on factors totally beyond his control.” Defendant’s Appendix at 22. The district court continued the hearing to allow the Departure Committee of the United States Attorney’s Office (Departure Committee)² to reevaluate Dawson’s cooperation. The Departure Committee again concluded that a downward departure was not warranted. At the second hearing, Dawson reemphasized his cooperation and repeated his argument that the Guidelines “allow a court to recognize the unusual or peculiar circumstances of an individual case” such as his. Id. at 43.

The district court rejected Dawson’s argument, concluding that section 5K1.1 addressed his circumstances and therefore section 5K2.0 did not apply. Section 5K1.1, entitled “Substantial Assistance to Authorities (Policy Statement)” provides that “[ujpon 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.” U.S.S.G. § 5K1.1, p.s. (emphasis added). The district judge explained:

I did believe early on, even before sentencing began, that the only basis for departure in this case would be a recommendation from the U.S. Attorney alleging substantial assistance. So, therefore, I cannot depart. I do not believe I can depart under the section that you have recommended. It was in your memorandum in aid of sentencing, and I have reviewed it, and I have reviewed the Guidelines, and I just disagree that I have the ability under that to depart.

Defendant’s Appendix at 47. In other words, the district court concluded that the section 5K1.1 procedure was the only way in which a departure could be granted.

Dawson appeals the district court’s refusal to depart by challenging the validity of section 5K1.1. First, Dawson asserts that section 5K1.1 is invalid because Congress, in enacting 28 U.S.C. § 994(n), directed that “[t]he Commission shall assure that the guidelines reflect the general appropriateness of imposing a lower sentence than would otherwise be imposed ... to take into account a defendant’s substantial assistance.” 28 U.S.C. § 994(n) (emphasis added). Because section 5K1.1 is entitled “Policy Statement” instead of “Guideline,” it does not, according to Dawson, comply with the congressional directive. Second, he contends that section 5K1.1 is a rule of practice.and procedure and only the Supreme Court can promulgate such a rule. Third, he argues that the provision of section 5K1.1 conditioning the substantial assistance to authorities departure on the government’s motion invalidly modifies the departure standard set forth in 18 U.S.C. § 3558(b).³ Finally, he argues that the court has virtually plenary power to depart under section 3553(b) if the Guidelines do not adequately cover the defendant’s circumstances and section 5K1.1 invalidly restricts the court’s power. As we explain below, because Dawson failed to make his arguments in the district court, we consider their merits only to determine if plain error occurred.

II.

As noted above, Dawson principally relied upon section 5K2.0 at the sentencing hearings as a ground for departure on the basis that the threats to his family constituted a mitigating circumstance not adequately considered by the Guidelines. His reliance on his cooperation with the government, however, could be read as an attempt to invoke section 5K1.1. Even assuming Dawson argued that a departure was warranted under section 5K1.1, his reliance on that section would be unavailing for another reason: the government did not make the required motion. He did not challenge the government motion condition nor did he argue the guideline/policy statement distinction or that section 5K1.1 is an invalid rule of practice and procedure.

We have consistently declared that if a defendant fails to except to the district court’s ruling on a specific ground, we will review the district court’s ruling only for plain error. See United States v. Ortez, 902 F.2d 61, 64 (D.C.Cir.1990). “Plain errors are those errors which so fundamentally violate a defendant’s rights that they require reversal regardless of the defendant’s failure to object to them at trial.” Id. Put another way, the error must “rise to the level of error so ‘obvious and substantial’ or so ‘serious and manifest’ that it affects the very integrity of the trial process.” United States v. Blackwell, 694 F.2d 1325, 1341 (D.C.Cir.1982) (citations omitted).

The district court’s decision not to depart under section 5K2.0 does not constitute plain error because section 5K1.1 adequately addresses the defendant’s . circumstances. Moreover, there was no reason for the district court to question the validity of section 5K1.1. On two previous occasions, we have rejected challenges to the validity of section 5K1.1. In United States v. Doe, 934 F.2d 353 (D.C.Cir.), cert. denied, — U.S. -, 112 S.Ct. 268, 116 L.Ed.2d 221 (1991), we rejected the defendant’s various statutory and constitutional challenges to section 5K1.1. She had argued, in part, that the government motion requirement offends due process and that it conflicts with the language of 28 U.S.C. § 994(n). Similarly, in United States v. Ortez, 902 F.2d 61, 64 (D.C.Cir.1990), we rejected the defendant’s argument that the government motion requirement conflicts with the Guidelines’ enabling legislation or is unconstitutional. Our court has twice previously rejected constitutional and statutory challenges to section 5K1.1 and we cannot say that Dawson’s challenge exposes an error “so ‘obvious and substantial’ or so ‘serious and manifest’ that it affects the very integrity of the trial process.” Blackwell, 694 F.2d at 1341.⁴

Indeed, Ortez guides us in Dawson’s case. In Ortez, the defendant contended in the district court that his cooperation justified a downward departure. The government did not move for a downward departure because it determined that Ortez had not provided substantial assistance. Ortez raised the constitutional and statutory challenges only on appeal. We concluded that the district court’s “application of § 5K1.1 was not plain error.” Id. Likewise, Dawson challenged the validity of section 5K1.1 only on appeal and we conclude that, in reading section 5K1.1 to deny a downward departure under section 5K2.0, the district court did not commit plain error. The judgment of the district court accordingly is

Affirmed.

1

. The district court held two sentencing hearings, one on May 10, 1991, and one on June 21, 1991.

2

. The Departure Committee evaluates a defendant’s cooperation in order to decide whether the government will make a motion to depart under section 5K1.1 of the Guidelines. Government’s Brief at 6.

3

. Section 3553(b) states:

The court shall impose a sentence of the kind, and within the range, referred to in subsection (a)(4) unless the court finds that 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.

4

. In neither of the cases did the defendant argue that section 5K1.1 is invalid because it is a policy statement.