937 F.2d 20 (1st Cir. 1991), 90-2187, United States v. Romolo

• Date: 28 June 1991
• Docket Number: 90-2187.
• Citation: 937 F.2d 20
• Parties: UNITED STATES of America, Appellee, v. Christopher J. ROMOLO, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

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937 F.2d 20 (1st Cir. 1991)

UNITED STATES of America, Appellee,

v.

Christopher J. ROMOLO, Defendant, Appellant.

No. 90-2187.

United States Court of Appeals, First Circuit

June 28, 1991

Heard May 9, 1991.

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William McCandless, by appointment of the Court, Gorham, Me., for defendant, appellant.

Margaret D. McGaughey, Asst. U.S. Atty., with whom Richard S. Cohen, U.S. Atty., and William H. Browder, Jr., Asst. U.S. Atty., Portland, Me., were on brief, for the U.S.

Before CAMPBELL and SELYA, Circuit Judges, and COFFIN, Senior Circuit Judge.

SELYA, Circuit Judge.

Defendant-appellant Christopher Romolo was sentenced to seventy-eight months in prison for his role in a cocaine conspiracy. This sentence, calculated pursuant to the federal sentencing guidelines, was at the bottom end of the applicable guideline sentencing range. Neither the calculation nor the appropriateness of the sentencing range is disputed on appeal. Rather, the appellant argues to us, as he did below, that the sentencing court had the authority to depart sua sponte under U.S.S.G. Sec. 5K1.1, on the basis of the appellant's substantial assistance to the authorities, notwithstanding the government's refusal to move for a downward departure. ¹ We disagree. But, because certain dictum in United States v. La Guardia, 902 F.2d 1010 (1st Cir.1990), upon which the appellant relies, is apparently a source of some confusion, we take this opportunity to elaborate upon the views intimated therein.

I. BACKGROUND

Romolo was indicted on three counts of drug trafficking in September 1989. Initial efforts to secure his cooperation failed. On July 2, 1990, however, a nonbinding plea agreement was signed. The agreement provided that Romolo would plead guilty to counts 1 and 2 of the indictment, ² and would cooperate with the authorities. In exchange, the government agreed to dismiss count 3, to give Romolo letter immunity, and to make his cooperation known to any person(s) whom Romolo might designate. The following day, the court accepted Romolo's change of plea.

Between that date and the initial sentencing conference (September 24, 1990), Romolo assisted Florida law officers in unmasking a drug trafficking operation. At the time of sentencing, the government did not dispute that, during the stated period, Romolo identified a suspected drug trafficker, communicated with him, arranged a sham transaction, and introduced an undercover agent to the suspect. Moreover, Romolo was present when the targets (three Cuban nationals, including Romolo's original contact) were later arrested and two kilograms of cocaine seized. In a letter to the prosecutor, a sergeant of the Fort Lauderdale police department praised Romolo as being "directly responsible" for the three arrests. The letter also indicated that Romolo was continuing to assist in pending investigations.

Despite these efforts, the government stated that it would not move for a downward departure under U.S.S.G. Sec. 5K1.1. The prosecutor told the district court that:

We consider the cooperation significant, not substantial. It's a question of timing.

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[Romolo] was in a position to assist the United States early on when he was initially indicted and elected not to execute a plea agreement until the eve of trial and, therefore, was not available as a witness against any codefendants who had all pled guilty or [were] convicted by trial. Historically he was of no value to us.

Defense counsel countered that only one other named coconspirator, McAndrews, was tried between the date Romolo was indicted and the date he pled guilty. He vouchsafed that the appellant could not have provided any real assistance in that case because he only knew McAndrews casually. Endeavoring to pursue the matter, defense counsel wrote to the prosecutor requesting information about the cooperation of, and sentencing recommendations pertaining to, the other alleged coconspirators. Counsel also asked the United States Attorney to describe in detail the nature and extent of the cooperation rendered by the last ten narcotics defendants in whose cases the prosecution had seen fit to move for a downward departure on "substantial assistance" grounds. The government did not provide the requested information and the district court refused to order its disclosure.

Romolo was sentenced on November 1, 1990. In a chambers conference prior to sentencing, defense counsel advised the court that he wanted to introduce evidence anent Romolo's cooperation so that the court might consider whether the government's refusal to move for a section 5K1.1 downward departure was arbitrary and capricious. At sentencing, Romolo renewed his request for an evidentiary hearing and moved for a downward departure pursuant section 5K1.1, notwithstanding the absence of a government motion. The court denied the request for a hearing and eschewed a departure, ruling that the government's decision whether or not to make a section 5K1.1 motion

is not subject to review by the Court under the plain language of the guidelines themselves, and several cases interpreting that language, and that the Court is, therefore, not going to entertain that evidentiary showing, the Court being satisfied that the government has, under the guidelines, the option to make that decision, and that once made, it is not subject to review by the Court for substantive reasons.

II. APPELLATE JURISDICTION

Given the fact that the court below properly calculated the guideline range and sentenced the defendant within it, our jurisdiction to review the sentence is sharply circumscribed. Notwithstanding, we believe we have jurisdiction to consider the instant appeal. We explain briefly.

It is well settled that, ordinarily, a district court's refusal to depart, regardless of the suggested direction, is not appealable. See, e.g., United States v. Harotunian, 920 F.2d 1040, 1044 (1st Cir.1990); United States v. Sanchez, 917 F.2d 607, 613 (1st Cir.1990), cert. denied, --- U.S. ----, 111 S.Ct. 1625, 113 L.Ed.2d 722 (1991); United States v. Ruiz, 905 F.2d 499, 508-09 (1st Cir.1990); United States v. Pighetti, 898 F.2d 3, 4-5 (1st Cir.1990); United States v. Tucker, 892 F.2d 8, 10 (1st Cir.1989); see also United States v. Soto, 918 F.2d 882, 883 n. 2 (10th Cir.1990) (collecting representative cases from various circuits). It is, however, equally well recognized that appellate jurisdiction may attach in those few situations where the lower court's decision not to depart is based on the court's mistaken view that it lacks the legal authority to consider a departure. See United States v. Rushby, 936 F.2d 41, 42 (1st Cir.1991); United States v. Poff, 926 F.2d 588, 590-91 (7th Cir.1991), petition for cert. filed, No. 90-7874 (April 29, 1991); United States v. Sharpsteen, 913 F.2d 59, 63 (2d Cir.1990); United States v. Lowden, 905 F.2d 1448, 1449 (10th Cir.), cert. denied, --- U.S. ----, 111 S.Ct. 206, 112 L.Ed.2d 166 (1990); United States v. Ortez, 902 F.2d 61, 64 (D.C.Cir.1990); United States v. Bayerle, 898 F.2d 28, 31 (4th Cir.), cert. denied, --- U.S. ----, 111 S.Ct. 65, 112 L.Ed.2d 39 (1990); United States v. Rosen, 896 F.2d 789, 792 (3d

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Cir.1990); United States v. Evidente, 894 F.2d 1000, 1005 (8th Cir.), cert. denied, --- U.S. ----, 110 S.Ct. 1956, 109 L.Ed.2d 318 (1990); United States v. Fossett, 881 F.2d 976, 979 (11th Cir.1989); United States v. Russell, 870 F.2d 18, 20-21 (1st Cir.1989) (per curiam). To be sure, there is no unanimity regarding whether such jurisdiction is conferred by 18 U.S.C. Sec. 3742(a)(1) (granting appellate jurisdiction over sentences imposed in violation of law) or 18 U.S.C. Sec. 3742(a)(2) (granting appellate jurisdiction over sentences resulting from incorrect applications of the guidelines). Compare, e.g., Poff, 926 F.2d at 590-91 and Bayerle, 898 F.2d at 31 (jurisdiction exists under Sec. 3742(a)(1)) with, e.g., Lowden, 905 F.2d at 1449 and Rosen, 896 F.2d at 792 (jurisdiction exists under Sec. 3742(a)(2)); see also Evidente, 894 F.2d at 1005 (appellate jurisdiction is conferred by both sections of the statute); Fossett, 881 F.2d at 979 (same). Yet, we see no need to plunge into this maelstrom under the present circumstances. After all, where the critical question involves the judge's view of the law, that is, whether or not the judge lacked statutory authority to consider departing, nothing would turn on a more precise refinement of the jurisdictional calculus.

This appeal exemplifies the point. The appellant challenges neither the district court's declination to exercise admitted discretion nor its application of settled law to idiosyncratic facts. Rather, he advances a "purely legal" issue. In such circumstances, we think it is sufficient, as we did in Russell, 870 F.2d at 20-21, and as the District of Columbia Circuit appears to have done in Ortez,...