In re: Sealed Case, 97-3104

• Citation: 204 F.3d 1170
• Decision Date: 14 March 2000
• Docket Number: No. 97-3104,97-3104
• Parties: (D.C. Cir. 2000) In re: Sealed Case
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1170

204 F.3d 1170 (D.C. Cir. 2000)

In re: Sealed Case

No. 97-3104

United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued January 27, 2000

Decided March 14, 2000

Appeal from the United States District Court for the District of Columbia(No. 96cr00095-01)

Evelina J. Norwinski, Assistant Federal Public Defender, argued the cause for appellant. A.J. Kramer, Federal Public Defender, Carmen D. Hernandez and Reita Pendry, Assistant Federal Public Defenders were on the briefs.

Elizabeth H. Danello, Assistant U.S. Attorney, argued the cause for appellee. With her on the brief were Wilma A. Lewis, U.S. Attorney, John R. Fisher and Patricia Stewart, Assistant U.S. Attorneys.

Before: Edwards, Chief Judge, Ginsburg and Rogers, Circuit Judges.

Opinion for the Court filed by Circuit Judge Rogers.

Rogers, Circuit Judge:

In In re Sealed Case No. 97-3112 (Sentencing Guidelines' "Substantial Assistance"), 181 F.3d 128 (D.C. Cir. 1999) (in banc), the court held that a district court may not invoke 5K1.1 of the U.S. Sentencing Guidelines ("U.S.S.G." or "the Guidelines") to sentence a criminal defendant below the guideline range for the prescribed offense except upon motion by the government " 'stating that the defendant has provided substantial assistance in the investigation or prosecution of another person who has committed an offense.' " Id. at 130 (quoting U.S.S.G. 5K1.1, p.s. (1997)). Appellant contends that there is an exception to the motion requirement where the assistance relates to a District of Columbia offense, and hence the district court erred in denying his departure request. Specifically, he contends that the term "offense" in 5K1.1 refers solely to federal offenses, and that he thus may receive a departure below the level prescribed by the Guidelines on the basis of his assistance to law enforcement officers with regard to a homicide prosecution under the District of Columbia Code, even though the government never filed a motion in support of such departure. Because appellant never presented this argument to the district court, our review is for plain error and we find none.

I.

"[A] request for an adjustment under the Guidelines is [forfeited] if the argument is not made at sentencing," and this court "will review sentencing issues raised for the first time on appeal [only] for 'plain error.' " United States v. Foster, 988 F.2d 206, 209 (D.C. Cir. 1993); see United States v. Klat, 156 F.3d 1258, 1267 (D.C. Cir. 1998) (plain error review applied to departures as well as adjustments not requested in the district court); United States v. Ortez, 902 F.2d 61, 64 (D.C. Cir. 1990); see also United States v. Olano, 507 U.S. 725, 731 (1993). While our plain error review in the sentencing context requires a "slightly less exacting" showing of prejudice than for trial errors, see United States v. Saro, 24 F.3d 283, 287 (D.C. Cir. 1994), an appellant must still show that "from the perspective of the trial court[,] the error [was] 'so "plain" [that] the trial judge and prosecutor were derelict in countenancing it, even absent the defendant's timely assistance in detecting it.' " Id. at 286 (quoting United States v. Frady, 456 U.S. 152, 163 (1982)).

Appellant pleaded guilty to one count of a ten count indictment, and was sentenced to 57 months' imprisonment after receiving a downward departure under United States v. Smith, 27 F.3d 649 (D.C. Cir. 1994). In appealing his sentence, he concedes that in seeking a downward departure for cooperation that he had provided to the government in connection with a homicide prosecution in the Superior Court of the District of Columbia, he did not specifically argue in the district court that 5K1.1 was inapplicable because his cooperation related to a non-federal offense. The closest he came to raising the issue was when he stated in his first memorandum in aid of sentencing that "under U.S.S.G. 5K2.0 ... [his] assistance augurs in favor of a downward departure."¹Appellant made no mention of 5K1.1 as a separate ground and did not explain why 5K2.0 authorized departure in his case. In his second memorandum in aid of sentencing he argued that 5K1.1 was invalid because Congress had mandated that departures based upon cooperation with the government be addressed through sentencing guidelines while 5K1.1 is a policy statement,² and that the district court may impose a sentence outside the range established by theapplicable guideline, if the court finds 'that there exists anaggravating or mitigating circumstance of a kind, or to adegree, not adequately taken into consideration by the Sen-tencing Commission in formulating the guidelines that shouldresult in a sentence different from that described.'U.S.S.G. 5K2.0, p.s. (1997) (quoting 18 U.S.C. 3553(b)).thus retained general authority under 18 U.S.C. 3553(b) to depart on the basis of his cooperation, even absent a government motion for departure. At a subsequent hearing, the district court rejected appellant's 5K1.1 argument, ruling that it lacked authority to depart on the basis of appellant's cooperation "in the absence of a 5K1.1 letter" from the government. Thus, appellant never argued to the district court that 5K1.1, or any other authority, authorized departure absent a government motion because of the non-federal case on which appellant assisted the government.

On appeal appellant contends only that the district court erred in failing to depart under 5K2.0, given the nonfederal nature of the offense on which he assisted the government. Yet contrary to appellant's apparent position, it is not enough for purposes of preserving an argument for appeal for the defendant to discuss the general circumstances of his case without in some manner signaling to the district court how those circumstances bear on the district court's authority to grant a downward departure request in the absence of a government motion. As the court has recently observed in an analogous case:

To be sure, Vizcaino was not required to state the issue as clearly as appellate counsel has, or, for that matter, even to cite to section 5K2.0 in order to preserve the issue for appeal. But absent any statement that the district court could have reasonably interpreted as arguing that crack so distorted the sentence as to take it out of the Guidelines' heartland, we cannot conclude that Vizcaino preserved the issue.

United States v. Vizcaino, 202 F.3d 345, 348 (D.C. Cir. Feb. 15, 2000) (and distinguishing United States v. Beckham, 968 F.2d 47 (D.C. Cir. 1992)). So too here, appellant never made the argument to the district court that he raises on appeal, and to the extent that he referred to 5K2.0 and 3553(b), he never suggested to the district court why either would entitle him to a departure because of his non-federal cooperation, while his reliance on the latter was based upon an argument since rejected by this court. See supra note 2. Therefore, because the issue of whether the district court had authority to depart under 5K2.0 based on appellant's assistance on a non-federal offense was never presented in the district court, it was forfeited and our review is for plain error. See Vizcaino, 202 F.3d at 348; Saro, 24 F.3d at 286.

The only question, therefore, is whether it was incumbent on the district court sua sponte to consider whether 5K1.1 was inapplicable to appellant's request for departure based upon his cooperation in connection with a homicide prosecution under District of Columbia law because the issue was "plain," that is, either because the language of 5K1.1 distinguished between federal and local offenses, or there was persuasive judicial authority for making that distinction, or the legal norm at issue was absolutely clear. See United States v. Merlos, 8 F.3d 48, 51 (D.C. Cir. 1993). Appellant does not suggest that the latter consideration is relevant here, and we agree. Thus, absent clear language in the Guidelines, or precedent from the Supreme Court, this court, or another circuit court of appeals at the time of appellant's sentencing that 5K1.1 applied only to cooperation in connection with federal offenses, it would seem to follow that the "failure to recognize authority to depart ... falls far short of plain error." Vizcaino, 202 F.3d at 348

The language of 5K1.1 makes no distinction between local and federal offenses and merely uses the term "offense":"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 (first paragraph). Essentially, appellant maintains that according to the definition of "offense" in the Commentary to 1B1.1,³ the meaning of that term as used in 5K1.1 must "Offense" means the offense of conviction and all relevant conduct under 1B1.3 (Relevant Conduct) unless a different meaning is specified or is otherwise clear from the context. The term "instant" is used in connection with "offense," "federal offense," or "offense of conviction" as the case may be, to be determined contextually; that is, in appellant's view, the...