UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 92-5091
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
GARY W. BECKETT,
Defendant-Appellant.
Appeal from the United States District Court for the Western District of Louisiana (July 7, 1993)
Before DAVIS and DeMOSS, Circuit Judges, and ZAGEL1, District Judge. DeMOSS, Circuit Judge: The question to be determined, one of first impression in this
circuit, is whether the district court has authority to depart
1 District Judge of the Northern District of Illinois, sitting by designation.
1 below the statutory minimum sentence imposed by 18 U.S.C. §
924(c)(1) after the government has filed a motion which seeks a
downward departure from the Sentencing Guidelines under U.S.S.G. §
5K1.1 but which specifically asserts that it is not invoking 18
U.S.C. § 3553(e).
I. FACTUAL BACKGROUND
On May, 7 1992, an information was filed against Gary W.
Beckett ("Beckett") containing the following three counts: (1)
distribution of cocaine in violation of 21 U.S.C. § 841 (a)(1); (2)
carrying a firearm during a drug trafficking offense in violation
of 18 U.S.C. § 924 (c)(1); and (3) forfeiture of property used in
the drug distribution under 21 U.S.C. § 853. At a hearing held on
May 20, 1992, Beckett pleaded guilty to these charges.
In exchange for Beckett's plea, the government agreed to file
a motion pursuant to Sentencing Guidelines § 5K1.1. This section
allows the government to file a motion for departure from the
Sentencing Guidelines stating that the defendant has provided
substantial assistance in the government's investigation and
prosecution of another person who has committed an offense. Upon
such motion, the guidelines grant the district judge discretion to
"depart from the guidelines." U.S.S.G. § 5K1.1.
In accordance with Rule 11(f), Federal Rules of Criminal
Procedure, the court accepted the plea and set Beckett's sentencing
hearing for October 2, 1992. On September 30, 1990, the government
filed its motion for departure, "[p]ursuant to 5K1.1 of the
Sentencing Guidelines," as required by the plea agreement.
2 The presentence report put the sentencing range under the
Sentencing Guidelines for the drug offense at 33 to 41 months. The
report also stated that both Guideline § 2K2.4(a) and 18 U.S.C. §
924(c)(1) required a five year sentence on the gun count.2
However, the report concluded by stating that "the plea agreement
has a substantial impact on the overall sentencing options
available to the court as it provides for a 5K1.1 Motion for
Departure from the Sentencing Guidelines as outlined above."
On October 2, the day Beckett was to be sentenced, the
government filed an amended motion for departure, stating that the
motion was not made pursuant to 18 U.S.C. § 3553(e) and that it did
not authorize the court to impose a sentence below the five-year
statutory minimum under 18 U.S.C. § 924(c)(1). The court postponed
sentencing until October seventh to allow the defendant time to
respond to the government's amended motion.
At the postponed sentencing, the district court found that the
government's motion for downward departure was warranted as to the
drug charge. Accordingly, the court sentenced Beckett to 20 months
2 U.S.S.G. § 2K2.4 (a) states: "If the defendant, whether or not convicted of another crime, was convicted under 18 U.S.C. § 924(c) ..., the term of imprisonment is that required by statute."
18 U.S.C. § 924(c)(1) states in relevant part: "Whoever, during and in relation to any ... drug trafficking crime (including a ... drug trafficking crime which provides for an enhanced punishment if committed by the use of a deadly or dangerous weapon or device) for which he may be prosecuted in a court of the United States, uses or carries a firearm, shall, in addition to the punishment provided for such ... drug trafficking crime, be sentenced to imprisonment for five years, ..."
3 imprisonment and 3 years supervised release. However, the court
concluded that it did not have the discretion to depart downward
from the statutory minimum of § 924 (c)(1). In this regard,
however, the judge stated the following:
I considered the question of whether I had the discretion to depart and I decided that I didn't have the discretion to depart, and if and when some court sitting in New Orleans says the judge in Shreveport was wrong, he has the discretion to depart, then I expect you to move for a resentencing or some other event.
Consequently, the district judge sentenced Beckett to the mandatory
5 years imprisonment to run consecutive to the sentence on the drug
count, with 3 years of supervised release to run concurrent with
the other supervised release term.
On appeal, Beckett asserts that the government's 5K1.1 motion
for downward departure gave the district judge the authority to
depart not only from the Sentencing Guidelines, but also from the
statutory requirements of 18 U.S.C. § 924(c)(1). He further
contends that had the district judge believed he had such
discretion, he would have exercised it. We agree.
II. ANALYSIS
The full text of § 3553(e) of title 18 provides:
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.
18 U.S.C. § 3553(e).
4 Section 994(n) of title 28 reads as follows:
The 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 a minimum sentence, to take into account a defendant's substantial assistance in the investigation or prosecution of another person who has committed an offense.
28 U.S.C. § 994(n).
And the relevant portion of § 5K1.1 is this:
Substantial Assistance to Authorities (Policy Statement)
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.
U.S.S.G. § 5K1.1.
The commentary accompanying § 5K1.1 contains the following
"[a]pplication note[]":
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.
U.S.S.G. § 5K1.1, comment. n. 1.
Because Beckett pleaded guilty to two criminal statues, one of
which carries a mandatory minimum sentence, this case involves both
18 U.S.C. § 3553(e) and U.S.S.G. § 5K1.1. The underlying question
to be resolved is whether these two provisions provide for separate
and distinct methods of departure, or whether they are intended to
perform the same function.
5 Three other circuits have tackled the issue with which we find
ourselves confronted. In United States v. Cheng Ah-Kai, 951 F.2d
490 (2nd Cir. 1991), the Court was confronted with facts very
similar to ours. The defendant pleaded guilty to violating two
criminal statutes, one of which carries a mandatory minimum
sentence. In exchange for the defendant's cooperation with the
government, the government agreed to request the sentencing court
to depart below the sentencing guidelines. Prior to sentencing,
the government sent a letter to the district court recommending a
downward departure from the guidelines; it made no mention,
however, of a departure below the statutorily required minimum
sentence. On appeal both the government and the defendant agreed
that the letter was the equivalent of a 5K1.1 motion.
At sentencing, the defendant requested a sentence below the
statutory minimum, and the government objected. The government
took the position it now takes today, that § 5K1.1 and § 3553(e)
are separate and distinct methods of departure and that in the
absence of a 3553(e) motion, the district court does not have the
authority to depart below the statutory minimum sentence. The
district court "reluctantly" agreed with the government and
sentenced the defendant to the statutory term.
On appeal, the Second Circuit reviewed the language of
sections 3553(e), 994(n), and 5K1.1, as well as the Ninth Circuit's
decision in United States v. Keene, 933 F.2d 711 (9th Cir. 1991)
and the Fourth Circuit's decision in United States v. Wade, 936
F.2d 169 (4th Cir 1991) and came to the following conclusion:
Analyzing the statutory scheme and the powers of the Sentencing Commission conferred by Congress, we likewise
6 hold that a district court has discretion to depart below the statutory minimum sentence following a government motion pursuant to § 5K1.1. In our view, it is not necessary for the government to specify that it is moving under § 3553(e) for departure below the statutory minimum, once the power of the court has been invoked under § 5K1.1.
Cheng Ah-Kai, 951 F.2d at 492.
In reaching this conclusion, the Court found that § 5K1.1
implements the directive of § 994(n) and § 3553(e), and all three
provisions must be read together. It found that Application Note
1 to § 5K1.1 supported this reading. More specifically, it found
that by the inclusion of Application Note 1, the Sentencing
Commission intended § 5K1.1 to be the "conduit" through which §
3553(e) may be applied.
In Cheng Ah-Kai, the Court also found other factors supporting
"the connection between § 5K1.1 and § 3553(e)." The Court
considered it to be noteworthy that both sections required a
showing of substantial assistance before there can be a sentencing
departure from the guidelines or the statutory minimum. It found
that § 5K1.1's Background Commentary's reference to § 3553(c)
"highlights the connection between § 5K1.1 and § 3553." It also
considered the Sentencing Commission's reference to § 5K1.1 as
governing departures below the statutory minimum in U.S.S.G. §
2D1.1, comment. (n.7) further support for "the contention that the
Sentencing Commission perceives § 5K1.1 as covering departures both
from 'mandatory (statutory) minimum' sentences and from the
guidelines."
Finally, the Court considered its conclusion to reflect the
proper balance of power between the district court and the
7 prosecution. It noted that although the prosecution is in the best
position to determine whether a defendant's cooperation rises to
the level of substantial assistance, once that determination has
been made, it is within the sound discretion of the sentencing
judge to determine the extent of departure. The Court concluded
that to interpret § 5K1.1 and § 3553(e) as providing for two
separate and distinct types of departure would allow the
prosecution to determine the extent of departure and impermissibly
usurp the district court's sentencing discretion.
The Second Circuit found much support for its decision in the
Ninth Circuit's earlier decision in Keene. Although the issue
before the Court in Keene is the same confronting us today, the
district court there was persuaded by Keene's argument and decided
that it did have the authority to depart below a statutory minimum
sentence upon a government's 5K1.1 motion for downward departure
based on substantial assistance. On appeal, the government
contended that the court lacked such discretion in the absence of
a 3553(e) motion by the government.
The Ninth Circuit engaged in much the same analysis described
above. It first found that there is nothing in the legislative
history, nor in the language of § 3553 or § 994 to suggest that
Congress intended to vest with the prosecutor not only the
authority to make a substantial assistance motion, but also the
authority to set the parameters of the court's sentencing
discretion by choosing to move under § 5K1.1. rather than §
3553(e). The Court then examined the statutory relationship
8 between § 3553(e), § 5K1.1, Application Note 1 to § 5K1.1, and §
994(n) and came to the following conclusion:
In light of the substantial cross references between 5K1.1, 3553(e) and 994(n), we conclude 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. Rather, 5K1.1 implements the directive of 994(n) and 3553(e), all three provisions must be read together in order to determine the appropriateness of a sentence reduction and the extent of any departure.
Keene, 933 F.2d at 714.
On the other hand, the Eighth Circuit considered the same
issue in United States v. Rodriguez-Morales, 958 F.2d 1441, 1443
(8th Cir.1992), cert. denied, 113 S. Ct. 375 (1992) and came to the
opposite conclusion. It based its decision on a literal reading of
§ 5K1.1 which speaks of a departure from "the guidelines" and §
3553(e) which authorizes a departure "below a level established by
statute as minimum ..." Furthermore, it considered Application
Note 1 to § 5K1.1 as "little more than an academic observation
that, under the circumstances set forth in sections 994(n) and
3553(e), `a sentence below the statutory required minimum sentence'
may be justified." "Section 5K1.1 does not state that a 5K1.1
motion applies to mandatory minimum sentence, or is the equivalent
of a section 3553(e) motion," continued the Court.
The Court concluded that the only authority for the district
court to depart below the statutory minimum sentence "exists in the
plainly stated limitation in section 3553(e)." And since the
government clearly indicated that it's substantial assistance
motion was not based on § 3553(e) but rather on § 5K1.1, the
9 district court was without authority to depart below the statutory
minimum sentence.
The Court in Rodriguez-Morales also addressed the concern that
their conclusion would "place undue discretion in the hands of the"
government by asserting that "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." Finally the Court stated, "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."
We find the analysis of Ah-Kai and Keene more persuasive than
that of Rodriguez-Morales. Recognizing that the critical language
of § 5K1.1 is not identical to that of § 3553(e) does not resolve
the issue. We must consider that difference in light of the
"substantial cross reference between 5K1.1, 3553(e) and 994(n)" as
evidenced by Application Note 1 to § 5K1.1. Based on a combined
reading of the aforementioned sections, we conclude that there is
a direct statutory relationship between § 5K1.1 and § 3553(e) of
such a character as to make § 5K1.1 the appropriate vehicle by
which § 3553(e) may be implemented.
This interpretation of § 5K1.1 and § 3553(e) preserves the
appropriate scope of the government's and the sentencing judge's
authority. The government is clearly authorized to determine
whether a defendant's cooperation amounts to substantial
assistance. If it so determines, then it may file a 5K1.1 motion
for downward departure. Without such a motion, the court cannot
10 consider the defendant's assistance as a ground for downward
departure. United States v. White, 869 F.2d 822, 828-29 (5th Cir.
1989). However, once the motion is filed, the judge has the
authority to make a downward departure from any or all counts,
without regard to any statutorily mandated minimum sentence. We
see nothing in these provisions that causes us to believe that
Congress intended to permit the government to limit the scope of
the court's sentencing authority by choosing to package its
substantial assistance representation in a 5K1.1 motion rather than
a 3553(e) motion.
Therefore, we hold that when the prosecution moved under §
5K1.1 for a downward departure from the guidelines based on
Beckett's substantial assistance, the district court was authorized
to depart below the statutory minimum sentence imposed by 18 U.S.C.
§ 924 (c)(1). This holding is based on our conclusion that § 5K1.1
is the appropriate tool by which § 3553(e) may be implemented.
This holding is supported by our circuit's recent decision in
United States v. Santa Lucia, 991 F.2d 170 (5th Cir. 1993).
Although the Court was not faced with the precise facts we have
before us today, language from Santa Lucia is supportive of our
analysis.
In Santa Lucia, the defendant pleaded guilty to a single count
charging a violation of a statute which carries a minimum sentence
of 20 years. In exchange for the defendant's substantial
assistance, the government agreed to seek a downward departure to
not more than 18 years. At sentencing the government moved for a
downward departure to 18 years. The defendant objected, however,
11 insisting that he should be sentenced within the United States
Sentencing Guideline range of 151 to 188 months, the applicable
range had his offense not been subject to a statutory minimum
sentence. Nevertheless, the district court imposed an 18 year
sentence, and the defendant appealed, arguing that the district
court impermissibly departed above the applicable guideline range.
The Court in Santa Lucia first disabused the defendant of his
notion that the district court's departure was upward, rather than
downward, by drawing his attention to U.S.S.G. § 5G1.1(b) which
makes the statutorily required minimum sentence the guideline
sentence in the event the required minimum sentence is greater than
the maximum applicable guideline range. The Court then addressed
a facet of the issue now before us: whether upon the filing of a
5K1.1 motion the district court is permitted to depart below a
statutorily required minimum sentence.
In answering this question, the Court examined the language of
§ 3553(e), § 944(n), § 5K1.1, and Application Note 1 to § 5K1.1 and
came to the conclusion that, "The plain language of these
provisions admits of only one interpretation: a sentence below the
statutory minimum is a downward departure from the guideline
sentence." And since § 5K1.1 allows the district judge to "depart
from the guidelines," the Court concluded that upon a 5K1.1 motion
by the government, the court may depart below a statutory minimum
sentence, citing Cheng Ah-Kai, Keene, and Wade.
12 III. CONCLUSION
Because it appears to us that the district court's erroneous
construction of U.S.S.G. § 5K1.1 affected the sentence imposed,
United States v. Johnson, 961 F.2d 1188, 1189, n. 1 (5th Cir.
1992), we therefore VACATE the sentence imposed by the district
court and REMAND the case for resentencing.
c:br:opin:92-5091:cf 13