United States v. Pasquale Malvito

946 F.2d 1066, 1991 U.S. App. LEXIS 24495, 1991 WL 206280

• Court: Court of Appeals for the Fourth Circuit
• Decided: October 16, 1991
• Docket: 90-5822
• Status: Published

Opinions

OPINION

K.K. HALL, Circuit Judge:

After making a plea agreement with the government, Pasquale Malvito pleaded guilty to possession of cocaine with intent to distribute. He appeals the sentence imposed by the district court. We vacate and remand for resentencing.

I.

In September, 1988, Malvito sold cocaine to an informant in Morgantown, West Virginia. A later search of his residence turned up 227 grams of cocaine and $5,000 in cash. He agreed to plead guilty and to cooperate with the government by providing testimony, information, and undercover assistance. The plea agreement stated that evidence obtained from Malvito would not be used against him in any further criminal proceedings, and that, if he cooperated, the government would recommend a sentence at the low end of the guideline range, a reduction for acceptance of responsibility, and a downward departure for substantial assistance.

Confident in these promises, Malvito was extraordinarily cooperative. He provided information and grand jury testimony that assisted in the conviction of three individuals, including a major drug dealer in the Baltimore/Washington area. His cooperation was matched by his frankness. During his debriefing, he admitted selling about 400 pounds of marijuana per year since 1984. The presentence report noted that this information would not be used to calculate the base offense level because it was not known to the government before Malvito’s cooperation. U.S.S.G. § lB1.8(b)(l) (Nov. 1989).

The presentence report contained a statement from the government, in accordance with its plea agreement promise, recommending a sentence at the low end of the guideline range, a reduction for acceptance of responsibility, and a downward departure of two offense levels for substantial assistance.

At sentencing, the government’s attorney failed to orally renew the recommendation that Malvito be sentenced at the low end of the guideline range, though she made the substantial assistance and acceptance of responsibility recommendations.

The district court gave Malvito the acceptance of responsibility reduction. However, because of Malvito’s admission of involvement in heavy marijuana trafficking, the court refused to downwardly depart for substantial assistance. The court then sentenced Malvito to the top (33 months) of the resulting guidelines range (offense level 18, criminal history category I — 27-33 months). Had the district court followed all of the government’s recommendations, Malvito would have been sentenced to 21 months (level 16, category I — 21-27 months).

Malvito appeals.

II.

At the time Malvito was sentenced, U.S.S.G. § lB1.8(a) (Nov. 1989) provided:

Where a defendant agrees to cooperate with the government by providing information concerning unlawful activities of others, and the government agrees that self-incriminating information so provided will not be used against the defendant, then such information shall not be used in determining the applicable guideline range, except to the extent provided in the agreement.

Application Note 1 to this section explains:

Although this guideline, consistent with the general structure of these guidelines, affects only the determination of the guideline range, the policy of the Commission is that where a defendant as a result of a cooperation agreement with the government to assist in the investigation or prosecution of other offenders reveals information that implicates him in unlawful conduct not already known to the government, such defendant should not be subject to an increased sentence by virtue of that cooperation where the government agreed that the information revealed would not be used for such purpose.

The government does not dispute that Malvito provided notably “substantial assistance.” Moreover, an application note to the substantial assistance policy statement states, “[substantial weight should be given to the government’s evaluation of the extent of the defendant’s assistance, particularly where the extent and value of the assistance are difficult to ascertain.” U.S.S.G. § 5K1.1, comment, (n. 3) (Nov. 1989). However, the district court in this case did not refuse to depart because it disbelieved the government’s evaluation that Malvito substantially assisted. It simply refused to reduce the sentence any further because of the debriefing admission of marijuana trafficking:

The marijuana ... was not made a part of this criminal action and it involves only the cocaine. But the Court needs to certainly keep that in mind as we think of the total picture here and as we think of not just the charged offense, but the real offense that involved this individual.

In looking at the totality of this individual’s involvement with controlled substance, and not the least appreciative to him for his participation as represented by the Government in these three cases that have been mentioned here this morning, the Court does not believe that in either the spirit of the Congressional enactment or in the spirit of the Sentencing Commission’s Guidelines, that we could give an application here to a 5K1.1 reduction of sentence for substantial assistance. He has assisted and this certainly is appreciated and worthwhile, but the Court does not believe that it can make the further reduction, though.

In a nutshell, the district court (i) considered self-incriminating information provided by the defendant under an express governmental promise not to use it against him in order to (ii) resolve a factual issue (substantial assistance) to which the information was completely irrelevant. Indeed, the court’s “appreciation” of Malvito’s “worthwhile” assistance all but finds as fact that Malvito did substantially assist.

We think there is no question that, contrary to the guidelines’ expressed policy, Malvito has been “subjected] to an increased sentence by virtue of [his] cooperation where the government agreed that the information revealed would not be used for such purpose.” Were we to allow Malvi-to’s sentence to stand, not only would this policy be frustrated, but an important and common investigative tool would lose some potency. Unless a defendant can feel secure in the government’s promise of “sentencing immunity,” he faces a Hobson’s choice between losing a “substantial assistance” departure by (i) telling so much that the district court denies the departure because of the information he reveals and (ii) telling too little, being caught in it, and losing the government’s recommendation.

We will not endorse this pointless dilemma. The government is entitled to promise that it will not use information gained under a cooperation agreement against the defendant, and the defendant is entitled to trust in the promise. The district court is not bound by the government’s recommendation that it make a substantial assistance departure. On the other hand, U.S.S.G. § 1B1.8 requires it to honor the government’s promise that self-incriminating information volunteered by the defendant under a cooperation agreement will not subject the defendant to a harsher sentence. In short, the district court could have denied Malvito the downward departure for almost any reason, but not for the reason it gave.

Refusals to downwardly depart are ordinarily not appealable. United States v. Bayerle, 898 F.2d 28, 30-31 (4th Cir.), cert. denied, — U.S. —, 111 S.Ct. 65, 112 L.Ed.2d 39 (1990). However, because the sentence “was imposed as a result of an incorrect application of the sentencing guidelines,” 18 U.S.C. § 3742(a)(2), this appeal falls within one of the narrow circumstances in which review is authorized by Congress.

We vacate and remand for resentenc-ing.

*

VACATED AND REMANDED FOR RE-SENTENCING.

Malvito also contends that the government breached the plea agreement when the prosecutor failed to orally renew the government’s previous written recommendation (incorporated in the presentence report) that Malvito be sentenced at the low end of the guideline range. Because resentencing is required, the government will be given another opportunity to comply; therefore, we need not resolve this issue at this time.