In re Sealed Case, 02-3065.

• Decision Date: 25 November 2003
• Docket Number: No. 02-3065.,02-3065.
• Citation: 349 F.3d 685
• Parties: IN RE: SEALED CASE.
• Court: U.S. Court of Appeals — District of Columbia Circuit

349 F.3d 685

IN RE: SEALED CASE.

No. 02-3065.

United States Court of Appeals, District of Columbia Circuit.

Argued September 18, 2003.

Decided November 25, 2003.

Appeal from the United States District Court for the District of Columbia (No. 00cr00425-21).

Stephen C. Leckar, appointed by the court, argued the cause for the appellant.

Patricia A. Heffernan, Assistant United States Attorney, argued the cause for the appellee. Roscoe C. Howard, Jr., United States Attorney, and John R. Fisher and Kenneth F. Whitted, Assistant United States Attorneys, were on brief.

Before: SENTELLE, HENDERSON and TATEL, Circuit Judges.

Opinion for the court filed by Circuit Judge KAREN LeCRAFT HENDERSON.

KAREN LeCRAFT HENDERSON, Circuit Judge:

Following an undercover investigation into a cocaine distribution network in the Washington Metropolitan area, the appellant was arrested in October 2000 on a parole violation and was charged in December 2000 along with twenty-four other people in a seventy-one count indictment. In July 2001, he pleaded guilty to conspiring to possess and distribute between 50 and 150 grams of cocaine in violation of 21 U.S.C. §§ 841 & 846, a crime that carries a mandatory minimum sentence of ten years. 21 U.S.C. § 841(b)(1)(A). In June 2002, the district court sentenced the appellant to a 65-month term of imprisonment, after granting the government's motion for a downward departure pursuant to 18 U.S.C. § 3553(e) and section 5K1.1 of the United States Sentencing Guidelines (Guidelines or U.S.S.G.). On appeal, the appellant claims that the sentencing court erred by failing to make sufficient findings regarding his requests for a downward adjustment to his base offense level pursuant to U.S.S.G. § 3B1.2 and for a downward departure from his criminal history category pursuant to U.S.S.G. § 4A1.3. We reject both claims and affirm the district court's sentence.

I. BACKGROUND

In the December 2000 indictment, the appellant was charged with four separate offenses: conspiring to distribute cocaine base, cocaine and marijuana; unlawfully possessing with intent to distribute 5 grams or more of cocaine base; unlawful possession of ammunition by a fugitive; and unlawful possession of marijuana. In June 2001, he reached an agreement with the government to plead guilty to conspiring to distribute, and to possess with intent to distribute, between 50 and 150 grams of cocaine base, in violation of 21 U.S.C. § 846. As part of the plea agreement, the appellant agreed to cooperate with the government and, depending on the nature of that cooperation, the government agreed to move for a downward departure pursuant to 18 U.S.C. § 3553(e) and/or U.S.S.G. § 5K1.1. The appellant further agreed not to seek any downward adjustment or departure from his applicable sentencing range other than one based on his role in the offense pursuant to section 3B1.2 and the government maintained the right to oppose such an adjustment at sentencing.

On July 17, 2001, the appellant pleaded guilty to conspiring to distribute, and to possess with intent to distribute, between 50 and 150 grams of cocaine base. The presentence report calculated his base offense level at 32 and awarded him a 3-point downward adjustment pursuant to U.S.S.G. § 3E1.1 based on his guilty plea. The report did not recommend any role-in-the-offense adjustment to the appellant's offense level. Because his "involvement in the conspiracy was a pro-active and profitable one" and he actively conspired to distribute over 50 grams of cocaine base in the Washington Metropolitan area, the probation officer did not find the appellant qualified for a role-in-the-offense downward adjustment. Appellant's App. (App.) 133. On the other hand, because he did not "exercise[ ] any managerial or supervisory role within the conspiracy," the report concluded that his "level of participation [in the conspiracy] d[id] not warrant an aggravating ... role [upward] adjustment" pursuant to section 3B1.1 App. 132.

In calculating the appellant's criminal history category, the report noted that he had two prior criminal convictions, one in 1994 for possession of cocaine and one in 1995 for carrying a firearm without a license. The convictions gave the appellant a criminal history score of four, which placed him in criminal history category III. The report also noted numerous other arrests from the time the appellant was 10 years old. Based on an adjusted offense level of 29 and a criminal history category of III, the appellant's guideline range stood at 108 to 135 months' imprisonment. Because the statutory mandatory minimum sentence for the appellant's base offense is 10 years, 21 U.S.C. §§ 841(b)(1)(A), however, his minimum guideline range could not go below 120 months; thus his applicable sentencing range was 120 to 135 months. U.S.S.G. § 5G1.1(c)(2).

In an undated letter to the probation officer, then-defense counsel¹ made several objections to the presentence report. In addition to correcting various factual errors, she claimed that the appellant deserved a four-level downward adjustment pursuant to section 3B1.2(a) because he sold drugs for the conspiracy's principal distributor "to pay off a drug debt and later forwarded street buyers to [the distributor] and in return received small quantities of crack cocaine for his personal use." App. 93. Because, she argued, "[r]ole in the offense determinations are based on a comparison between a defendant and the other persons in the instant offense[, a]s compared to others in the charged conspiracy, [the appellant] was at the very bottom." App. 94. She concluded: "No way [the appellant] could be seen as having anything but [a] minor role in the instant offense." Id.

In addition, defense counsel claimed the appellant's "criminal history points significantly over-represent `the seriousness of the defendant's criminal history or the likelihood that the defendant will commit further crimes'" and therefore proposed a downward departure from criminal history category III pursuant to U.S.S.G. § 4A1.3. App. 95. She also asked the court to consider a downward departure based on his difficult childhood (U.S.S.G. § 5K2.0) and on threats his drug distributor allegedly made to him (U.S.S.G. § 5K2.12). All told, defense counsel requested a "sentence of time served" — which at the time amounted to roughly 20 months—plus probation. App. 96.

In an addendum to the presentence report dated June 13, 2002, the probation officer noted the appellant's proposed revisions regarding his role in the offense and criminal history but maintained that none was appropriate. With regard to the section 3B1.2 adjustment, the addendum stated that the appellant "actively engaged in a conspiracy to distribute cocaine base for over two years. Furthermore, the defendant acknowledged during the presentence interview that he continued to sell drugs for [the conspiracy's wholesale distributor], beyond just paying off a drug debt. The defendant engaged in repeated, ongoing drug distribution activities for one of the main players in this conspiracy." App. 148. With regard to the section 4A1.3 criminal history departure, the officer concluded that the appellant's "criminal history category accurately reflects the seriousness of [his] criminal history, and most especially in this case, the likelihood that he will commit further crimes." App. 148.

Shortly after the presentence report was finalized, the government filed a motion pursuant to 18 U.S.C. § 3553(e) and U.S.S.G. § 5K1.1 for a downward departure based on the appellant's "substantial assistance" to the government. According to the government, the appellant had participated in approximately three meetings with its investigators and ultimately provided information regarding the identity of the assailant in an unsolved, 1999 homicide. Based on the appellant's information, the motion stated, the Metropolitan Police Department was subsequently able to confirm the assailant's identity and close that investigation.

Before sentencing and by undated letter to the court, defense counsel requested that the court sentence the appellant to time served plus five years of probation and repeated her objections to the presentence report. The letter conceded that the appellant's "limited participation in the conspiracy limited his `usefulness' to the government" but also highlighted the fact that the appellant was "eventually ... able to provide the government information about an unrelated crime" and that the government had filed a motion for a downward departure based on his assistance. App. 99. The letter also repeated the appellant's request for a downward adjustment pursuant to § 3B1.2 as well as for the downward departures originally sought. Relying on caselaw from other federal circuits, defense counsel claimed that because the appellant was "peripheral to the success of the [overarching] conspiracy," the "low man on the indictment," and just "a crack head," a four-level downward adjustment pursuant to U.S.S.G. § 3B1.2(a) was appropriate. App. 100-01 (emphasis in original). Under a heading labeled "factors that may warrant a departure," defense counsel argued that the appellant was entitled to a criminal history downward departure pursuant to U.S.S.G. § 4A1.3(e) — because his criminal history score of 4 was the result of two misdemeanor convictions — as well as downward departures pursuant to §§ 5K2.0 and 5K2.12. App. 101-02. The government did not respond to the letter.

The appellant appeared for sentencing before the district court on June 21, 2002. The court began by granting the government's substantial assistance motion. The ruling appeared to take defense counsel by surprise for she addressed the court as follows: "Your honor, as we stand here today, the Court having granted the motion for departure, I guess the only thing we're really talking about is whether [the court] would go as low as [the appellant] would like which would be...