U.S. v. Keene

• Decision Date: 29 April 1991
• Docket Number: No. 89-50617,89-50617
• Citation: 933 F.2d 711
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Myron KEENE, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 711

933 F.2d 711

UNITED STATES of America, Plaintiff-Appellant, v. Myron KEENE, Defendant-Appellee.

No. 89-50617.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Oct. 1, 1990.

Decided April 29, 1991.

Stephen G. Wolfe, Asst. U.S. Atty., Los Angeles, Cal., for plaintiff-appellant.

Karen R. Smith, Los Angeles, Cal., for defendant-appellee.

Appeal from the United States District Court for the Central District of California.

Before ALARCON and NORRIS, Circuit Judges, and MARSH, District Judge ^*.

MARSH, District Judge:

Defendant pled guilty to conspiracy to possess and distribute 437 kilograms of cocaine, an offense which carries a ten year mandatory minimum sentence under 21 U.S.C. Sec. 841(b)(1)(A). Prior to the imposition of sentence, the government moved for a downward departure from the Sentencing Guidelines based upon Mr. Keene's substantial assistance in the conviction of several codefendants. During the sentencing hearing, the government orally sought to clarify its departure request, stating that the request was made pursuant to Guideline 5K1.1 and not pursuant to 18 U.S.C. Sec. 3553(e). The defendant was sentenced to three years imprisonment. The district court not only departed below the Guideline range of 188 to 235 months, but also below the statutory minimum of ten years. The government appeals the district court's downward departure below the statutory minimum sentence in the absence of a government motion specifically invoking 18 U.S.C. Sec. 3553(e). ¹

STANDARD

A district court's interpretation of the sentencing guidelines is reviewed de novo. United States v. Lawrence, 916 F.2d 553, 554 (9th Cir.1990).

DISCUSSION

The issue presented in this appeal involves the interpretation and interrelation of two statutory provisions and one Guideline section addressing a reduction in sentence based upon a defendant's substantial assistance to authorities: 18 U.S.C. Sec. 3553(e), 28 U.S.C. Sec. 994(n) and U.S.S.G. Sec. 5K1.1. Appellant contends that the district court lacked discretion to set a sentence below the statutory minimum in the absence of a motion from the government notifying the court that defendant provided substantial assistance under Sec. 3553(e) rather than 5K1.1.

Section 3553 was enacted in 1984 as part of the Omnibus Crime Bill. Subsection (e), entitled "Limited authority to impose a sentence below a statutory minimum" provides as follows:

"Upon motion of the Government, the court shall have the authority to impose a sentence below a level established by statute as a 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."

Section 994 of Title 28, created as part of the Sentencing Reform Act of 1984, contains a detailed list of the duties of the Sentencing Commission. Section 994(n) empowers the Sentencing Commission to provide for downward adjustments to account for a defendant's substantial assistance:

"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."

The Sentencing Commission carried out the mandate of section 994(n) by adopting Section 5K1.1 of the Sentencing Guidelines.

Section 5K1.1 provides that,

"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."

Subsection (a) of 5K1.1 lists several non-exclusive factors that may be considered by the court in determining whether and to what extent a departure is merited.

Our review of the cases interpreting 3553(e) and 5K1.1 has revealed a lack of clarity regarding the relationship of these two provisions. Most courts have interpreted 5K1.1 as "implementing" Sec. 3553(e), which suggests that 5K1.1 is the means to accomplish the end sought by the statute. See United States v. Deases, 918 F.2d 118 (10th Cir.1990); Ehrsam v. Rubenstein, 917 F.2d 764 (3rd Cir.1990); United States v. Brick, 905 F.2d 1092 (7th Cir.1990) (section 3553(e) is "statutory counterpart" to 5K1.1); United States v. Campbell, 704 F.Supp. 661 (E.D.Va.1989) (court could depart below statutory minimum on government's 5K1.1 motion since Sec. 994(n) "effectively incorporates" 3553(e)). But see, United States v. Coleman, 895 F.2d 501, 504 (8th Cir.1990) (3553(e) and 5K1.1 have different effect because "3553(e) allows the court to depart below the mandatory minimum statutory term of imprisonment [while] section 5K1.1 allows the court to depart below the guideline range") (dicta). ²

In United States v. Ayarza, 874 F.2d 647 (9th Cir.1989), cert. denied --- U.S. ----, 110 S.Ct. 847, 107 L.Ed.2d 841 (1990), this court held that the requisite "motion of the government" provision found in both 5K1.1 and 3553(e) does not violate the doctrine of separation of powers or any constitutional rights to due process. In reaching this conclusion, the court adopted the reasoning in United States v. Severich, 676 F.Supp. 1209 (S.D.Fla.1988), aff'd, 872 F.2d 434 (11th Cir.1989) and United States v. Musser, 856 F.2d 1484 (11th Cir.1988), cert. denied, 489 U.S. 1022, 109 S.Ct. 1145, 103 L.Ed.2d 205 (1989). ³ In Musser, the Eleventh Circuit upheld the government motion requirement found in 3553(e) and Fed.R.Crim.P 35 against a challenge that the provisions impermissibly delegate unbridled discretion to the prosecution. In upholding the constitutionality of this threshold requirement, the court specifically found that "the only authority delegated by the rule is the authority to move the district court for a reduction of sentence in cases in which the defendant has rendered substantial assistance. The authority to actually reduce a sentence remains vested in the district court ..." Musser, 856 F.2d at 1487 (emphasis in original). Accord United States v. Pippin, 903 F.2d 1478, 1485 (11th Cir.1990) (prosecutor's power to make 5K1.1 motion does not allow government to determine appropriate sentence) and United States v. Francois, 889 F.2d 1341, 1344 (4th Cir.1990) cert. denied --- U.S. ----, 110 S.Ct. 1822, 108 L.Ed.2d 951 (1990) (5K1.1 motion grants government authority to file motion, but gives no control over extent of departure). The rationale underlying Ayarza and Musser is limited to the recognition that the prosecutor is in the best position to know whether defendant's cooperation has been helpful. The extent of that assistance and its impact on the sentence are matters left within the sound discretion of the sentencing judge. See Pippin, 903 F.2d at 1478 (once 5K1.1 motion made, government has no control over extent of departure but may appeal that sentence imposed was unreasonable); and United States v. Vizcarra-Angulo, 904 F.2d 22 (9th Cir.1990) (court lacks jurisdiction to consider defendant's challenge of extent of district court's downward departure).

If we were to accept the government's position, that 5K1.1 and 3553(e) create two separate grounds for a motion based upon a defendant's substantial assistance, we would have to find that Congress intended to vest with the prosecutor not only the authority to make the motion, but also the authority to set the parameters of the court's discretion. There is nothing in the legislative history, nor in the language of section 3553 or section 994 that suggests such a result. Thus, we reject the government's argument that this statutory scheme ultimately gives the prosecutor the power not only to notify the court of a defendant's substantial assistance, but to limit the judge's discretion to set the sentence by choosing to file its motion under 5K1.1 rather than Sec. 3553(e).

Unlike section 3553(e), the last clause in the opening paragraph to 5K1.1 refers specifically to departure from the guidelines, rather than a reduction below a statutory minimum. However, Application Notes 1 and 2 and the Background Commentary refer broadly to "sentencing reduction." While the Application Notes are silent as to the relationship among section 5K1.1 and the two statutory provisions upon which it is based, Application Note 1 provides: "Under circumstances set forth in 18 U.S.C. Sec. 3553(e) and 28 U.S.C. Sec. 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." Further, the background commentary directs the sentencing judge to state his reasons for reducing a sentence, based upon 18 U.S.C. 3553(c). ⁴

Thus, although 5K1.1 speaks initially in terms of "departures" from the guidelines, section 994(n) and the Application Notes to 5K1.1 refer more generically to "sentence reductions" and specifically refer to reductions below the statutory minimum as provided by 3553(e). 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), and all three provisions must be read together in order to determine the appropriateness of a sentence reduction and the extent of any departure.

It is clear from recent decisions from this Circuit that a transfer of sentencing authority from the judge to the prosecutor does not violate a criminal defendant's right to substantive...