In re Sealed Case
| Decision Date | 09 July 1999 |
| Docket Number | No. 97-3112,97-3112 |
| Citation | 181 F.3d 128 |
| Parties | (D.C. Cir. 1999) In re Sealed Case(Sentencing Guidelines' "Substantial Assistance") |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
[Copyrighted Material Omitted] Appeal from the United States District Court for the District of Columbia (No. 95cr00031-02)
A.J. Kramer, Federal Public Defender, argued the cause and filed the briefs for appellant.
John R. Fisher, Assistant U.S. Attorney, argued the cause for appellee. With him on the brief was Wilma A. Lewis, U.S. Attorney.
Before: Edwards, Chief Judge, and Wald, Silberman, Williams, Ginsburg, Sentelle, Henderson, Randolph, Rogers, Tatel, and Garland, Circuit Judges.
Opinion for the Court filed by Circuit Judge Garland, with whom all members of the court join.
Under section 5K1.1 of the United States Sentencing Guidelines (U.S.S.G.), a district court may sentence a criminal defendant below the guideline range prescribed for the offense, "[u]pon 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." U.S.S.G. § 5K1.1, p.s. (1997).1 This court was convened en banc to consider whether a district court also has authority under the Guidelines to depart from the applicable range when the government declines to file such a motion. We hold that it does not.
A district court is generally required to impose a criminal sentence from within the range prescribed by the Sentencing Guidelines. 18 U.S.C. § 3553(b). That range is calculated by identifying the guideline keyed to the defendant's offense conduct, applying certain specified adjustments, and coordinating the adjusted offense level with a criminal history category based on the defendant's prior criminal conduct. See U.S.S.G. § 1B1.1. Employing that analysis in this case, the district court calculated the applicable guideline range and sentenced defendant to forty months in prison, a point in the middle of the range.2
Under certain circumstances, a court may depart downward from the sentencing range generated by the Guidelines. See 18 U.S.C. § 3553(b). Defendant contended that assistance he rendered to the government in connection with the investigation of other offenders qualified him for a departure under Guidelines 5K1.1. The government, however, declined to file a motion stating that defendant had provided substantial assistance. In accord with our decision in United States v. Ortez, 902 F.2d 61, 64 (D.C. Cir. 1990), the district court held that such a motion was a "prerequisite to downward departure from a guidelines sentence for substantial assistance," and denied defendant's request.
In In re Sealed Case (Sentencing Guidelines' "Substantial Assistance"), 149 F.3d 1198 (D.C. Cir. 1998), a panel of this court reversed. The panel acknowledged that our holding in Ortez barred a departure for substantial assistance in the absence of a government motion. In the panel's view, however, the Supreme Court effectively overruled Ortez in Koon v. United States, 518 U.S. 81 (1996), leaving district courts free "to depart from the Guidelines based on a defendant's substantial assistance where circumstances take the case out of the relevant guideline heartland." 149 F.3d at 1204. Because the district court had concluded that it lacked authority to depart without a motion, the case was remanded for possible resentencing. Id. On November 3, 1998, we granted the government's suggestion for rehearing en banc, and vacated the portion of the panel's opinion holding that departures for substantial assistance are available in the absence of a government motion.3
The question at issue here--whether a district court may depart without a motion under any circumstances--is a question of law which we effectively review de novo. See United States v. Sun-Diamond Growers, 138 F.3d 961, 975 (D.C. Cir. 1998) (citing Koon, 518 U.S. at 100), aff'd on other grounds, 119 S. Ct. 1402 (1999). Applying that standard, we now reaffirm our prior holding in Ortez and affirm the judgment of the district court.
Our analysis begins with the language of section 5K1.1, which reads, in relevant part: "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." The question is whether the United States Sentencing Commission intended the phrase, "[u]pon motion of the government," to mean only upon motion of the government. In Ortez, and in five subsequent opinions issued prior to the Supreme Court's decision in Koon, we held that a government motion was a prerequisite for a substantial assistance departure.4 Every other circuit to announce a holding on the issue reached the same conclusion,5 and, as discussed below, the circuits have continued to adhere to that position since Koon was decided as well. See infra note 12.
To be sure, the language of section 5K1.1 is susceptible to more than one reading. Although the section clearly provides that if the government moves the court may depart, it does not necessarily compel the inverse proposition--that if the government does not move the court may not depart. The legal maxim expressiounius est exclusio alterius ("the mention of one thing implies the exclusion of another") is not always correct. Rather, as we recently noted, "[t]he maxim's force in particular situations depends entirely on context, whether or not the draftsmen's mention of one thing, like a grant of authority, does really necessarily, or at least reasonably, imply the preclusion of alternatives." Shook v. D.C. Fin. Responsibility & Management Assistance Auth., 132 F.3d 775, 782 (D.C. Cir. 1998).
In the present context, however, it is clear that by authorizing departures with government motions, the Commission did intend to preclude departures without motions. This is clear because the Commission borrowed the phrasing of section 5K1.1 from two other provisions whose preclusive meaning is well-established, and which in turn borrowed from a tradition of similar statutory provisos that have been interpreted in the same way.
The Commission's authority to promulgate section 5K1.1 arises from Congress' instruction, in 28 U.S.C. § 994(n), that the Commission "assure that the guidelines reflect the appropriateness of imposing a lower sentence than would otherwise be imposed ... to take into account a defendant's substantial assistance...." Notably, Congress did not require the Commission to include an "upon motion of the government" proviso for guideline departures based on substantial assistance. See Melendez v. United States, 518 U.S. 120, 125 n.3 (1996). The Commission had the discretionary authority to do so, however, and did not have far to look for appropriate models.6
Section 994(n) was enacted as part of the Anti-Drug Abuse Act of 1986. Adjacent to that section in the Act were two other sentencing-departure provisions which, respectively, enacted 18 U.S.C. § 3553(e) and amended Rule 35(b) of the Federal Rules of Criminal Procedure.7 Both included nearly identical "upon motion of the government" clauses, and it is thus apparent that in drafting section 5K1.1 the Commission intended that section to be read in pari materia with 18 U.S.C. § 3553(e) and Rule 35(b). See United States v. Abuhouran, 161 F.3d 206, 211 (3d Cir. 1998) (); see also United States v. Doe, 940 F.2d 199, 203 n.7 (7th Cir. 1991);United States v. Romolo, 937 F.2d 20, 23 (1st Cir. 1991);United States v. Doe, 934 F.2d 353, 359 (D.C. Cir. 1991).
Section 3553(e) governs the circumstances under which a district court may select a sentence below a mandatory minimum set by a congressional statute--as compared to section 5K1.1, which applies to the selection of a sentence below a Sentencing Commission guideline. Section 3553(e) states:
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). In Melendez v. United States, the Supreme Court interpreted section 3553(e) to "require[ ] a Government motion ... before the court may impose such a sentence." 518 U.S. at 125-26 (1996). The Supreme Court's construction of language that is virtually identical to the language of section 5K1.1, and is adjacent to its authorizing provision, is powerful authority for the manner in which we should read section 5K1.1 itself.8
Rule 35(b) of the Federal Rules of Criminal Procedure governs the reduction of a defendant's sentence for substantial assistance provided after the initial sentence was imposed. After the 1986 amendment, the Rule read:
The court, on motion of the Government, may within one year after the imposition of a sentence, lower a sentence to reflect a defendant's subsequent, substantial assistance in the investigation or prosecution of another per-son who has committed an offense, in accordance with the guidelines and policy statements issued by the Sentencing Commission pursuant to section 994 of title 28,United States Code.
Fed. R. Crim. P. 35(b)(1987).9 As with section 3553(e)...
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