Sealed Case (Sentencing Guidelines, Substantial Assistance), In re

• Citation: 149 F.3d 1198
• Decision Date: 24 July 1998
• Docket Number: No. 97-3112,97-3112
• Parties: , 11 Fed.Sent.R. 43 In re SEALED CASE (SENTENCING GUIDELINES' "SUBSTANTIAL ASSISTANCE") NO. 97-3112. District of Columbia Circuit
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1198

149 F.3d 1198

331 U.S.App.D.C. 325, 11 Fed.Sent.R. 43

In re SEALED CASE (SENTENCING GUIDELINES' "SUBSTANTIAL

ASSISTANCE") NO. 97-3112.

No. 97-3112.

United States Court of Appeals,District of Columbia Circuit.

Argued March 26, 1998.

Decided July 24, 1998.

A.J. Kramer, Federal Public Defender, argued the cause and filed the briefs for appellant.

Ann Rosenfield, Assistant U.S. Attorney, argued the cause for appellee. With her on the brief were Mary Lou Leary, U.S. Attorney at the time the brief was filed, John R. Fisher and Thomas J. Tourish, Jr., Assistant U.S. Attorneys.

Before: EDWARDS, Chief Judge, TATEL, Circuit Judge, and BUCKLEY, Senior Circuit Judge.

TATEL, Circuit Judge:

The district court denied appellant's motion for downward departure under section 5K1.1 of the United States Sentencing Guidelines because the Government had not filed a motion attesting to appellant's substantial assistance. Applying Koon v. United States, 518 U.S. 81, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996), and finding nothing in the Sentencing Guidelines flatly prohibiting departures in the absence of government motions, we remand for the district court to determine whether the circumstances of this case take it out of the relevant heartland so as to warrant departure.

I

The U.S. Sentencing Guidelines authorize district courts to depart from prescribed sentencing ranges if they find "an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into account by the Sentencing Commission." 18 U.S.C. § 3553(b) (1994). The Guidelines also encourage departure under certain specific circumstances. For example, section 5K1.1 provides:

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. SENTENCING GUIDELINES MANUAL ("U.S.S.G.") § 5K1.1 (1997). Prior to Koon, we interpreted section 5K1.1 to deprive district courts of authority to depart based on a defendant's assistance in the absence of a government motion. See United States v. Ortez, 902 F.2d 61, 64 (D.C.Cir.1990).

Having pleaded guilty to one count of conspiracy to distribute and possession with intent to distribute cocaine, appellant sought downward departure based on his alleged substantial assistance to the government. The district court rejected the request, citing U.S.S.G. § 5K1.1 and the absence of a government motion.

On appeal, appellant challenges the district court's decision not to depart on two grounds. First, resurrecting an argument that was presented to us once before but never fully addressed because appellant in that case failed to raise it in district court, see United States v. Dawson, 990 F.2d 1314, 1316-17 (D.C.Cir.1993) (per curiam), appellant challenges section 5K1.1's validity on the grounds that the Commission issued it as a policy statement rather than a guideline. Because this appellant presented the issue to the trial court, we can fully consider its merits. Second, appellant argues that, assuming section 5K1.1's validity, Koon permits departures for substantial assistance even in the absence of a government motion because the factor was not adequately considered by the Commission. Although district court decisions not to depart are usually unreviewable, see United States v. Pinnick, 47 F.3d 434, 439 (D.C.Cir.1995), our review here is de novo because appellant argues that the district court misconstrued its legal authority under the Guidelines, United States v. Sun-Diamond Growers, 138 F.3d 961, 975 (D.C.Cir.1998) ("[W]hether a given factor could ever be a permissible basis for departure is a question of law which we address de novo.") (citing Koon, 518 U.S. at 100, 116 S.Ct. 2035).

II

Guidelines and policy statements differ in several ways. The Sentencing Reform Act of 1984, Pub.L. No. 98-473, 98 Stat. 1987 (codified as amended at 18 U.S.C. §§ 3551-3586, 28 U.S.C. §§ 991-998 (1994)), directs the Commission to promulgate guidelines "for use of a sentencing court in determining the sentence to be imposed." 28 U.S.C. § 994(a)(1). The Act authorizes the Commission to promulgate general policy statements "regarding application of the guidelines or any other aspect of sentencing or sentence implementation that in the view of the Commission would further the purposes of [sentencing]." Id. § 994(a)(2). Guidelines require congressional approval, id. § 994(p); policy statements do not, U.S.S.G. ch. 7, pt A, intro. cmt. 3(a). Guidelines establish specific numeric sentence ranges; policy statements usually provide general guidance about the factors that should inform sentencing decisions. Courts must follow guidelines. See Mistretta v. United States, 488 U.S. 361, 367, 391, 109 S.Ct. 647, 102 L.Ed.2d 714 (1989). The binding effect of policy statements is less clear. The Supreme Court has called policy statements "authoritative guide[s] to the meaning of the applicable Guideline." Williams v. United States, 503 U.S. 193, 201, 112 S.Ct. 1112, 117 L.Ed.2d 341 (1992). But some policy statements are not binding at all. For example, the Guidelines characterize Chapter 7's policy statements as "evolutionary" and designed merely to "provide guidance." U.S.S.G. ch. 7, pt. A, intro. cmt. 1. And we have held that where, as in Chapter 7, a policy statement is "independent of (and a conscious substitute for) any Guideline," it is not binding. United States v. Hooker, 993 F.2d 898, 901 (D.C.Cir.1993).

In support of his contention that the Commission should have issued section 5K1.1 as a guideline rather than a policy statement, appellant relies on 28 U.S.C. § 994(n), which states:

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.

28 U.S.C. § 994(n) (emphasis added). According to appellant, because Congress deliberately used the term "guidelines" and "clearly differentiated between guidelines and policy statements," the Commission lacked authority to promulgate a policy statement instead. Citing a contrary Fifth Circuit decision, the Government responds that the statute sometimes uses the term "the guidelines" to refer broadly to the system of guidelines as a whole--policy statements included--and that the Commission therefore had authority to promulgate section 5K1.1 as a policy statement. See United States v. Underwood, 61 F.3d 306, 310 (5th Cir.1995) (construing the term "the guidelines" as used in 28 U.S.C. § 994(n) to refer to the guidelines as a whole and concluding that section 994(n) authorized the promulgation of a policy statement).

Because appellant's argument amounts to a challenge to the Commission's interpretation of its authority under the statute to promulgate a policy statement, we proceed as directed by Chevron U.S.A. Inc. v. Natural Resources Defense Council, 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). See Stinson v. United States, 508 U.S. 36, 44-45, 113 S.Ct. 1913, 123 L.Ed.2d 598 (1993) ("The Sentencing Commission promulgates the guidelines by virtue of an express congressional delegation of authority for rulemaking...."); United States v. Doe, 934 F.2d 353, 359 (D.C.Cir.1991) (applying Chevron analysis to Sentencing Guidelines). If the statute is clear, that ends the matter. If the statute is ambiguous, we must defer to the Commission's interpretation as long as it is reasonable. Chevron, 467 U.S. at 842-44, 104 S.Ct. 2778.

We begin with the statute's language and structure. Defining the duties of the Commission, section 994 lists purposes for the guidelines and tells the Commission what guidelines and/or policy statements should accomplish. See generally 28 U.S.C. § 994. But section 994 uses the terms "guidelines" and "policy statements" inconsistently. Some subsections refer to "guidelines." Others refer to "guidelines promulgated pursuant to subsection (a)(1)," "guidelines and policy statements," "policy statements," or "policy statements promulgated pursuant to subsection (a)(2)," and it is not at all clear whether Congress intended these terms to be mutually exclusive. For example, three different subsections dealing with the length and conditions of imprisonment use three different terms: Subsection 994(g) begins, "[t]he Commission, in promulgating guidelines pursuant to subsection (a)(1)," id. § 994(g); subsection 994(h) begins, "[t]he Commission shall assure that the guidelines specify," id. § 994(h); and subsection 994(e) begins, "[t]he Commission shall assure that the guidelines and policy statements ... reflect," id. § 994(e). Appellant argues that if, as the Government contends, "the guidelines" means the system of guidelines as a whole, Congress's use of the words "guidelines and policy statements" would have been redundant because the term "guidelines" would already encompass policy statements. See id. § 994(c), (d), (e). The Government responds that if the term "guidelines" means only those binding sentencing instructions as defined in section 994(a)(1) and always excludes policy statements, Congress's use of the phrase "guidelines promulgated pursuant to subsection (a)(1)" would have been redundant. See id. § 994(b), (f), (g), (l), (y). Each side has a point.

Appellant also relies on the statute's definitional section which states: " '[G]uidelines' means the guidelines promulgated by the Commission pursuant to section 994(a) of this title." Id. § 998(c). Section 994(a), in turn, has three subsections: Subsection (a)(1) defines guidelines, subsection (a)(2) defines policy statements, and subsection (a)(3) refers to both. Appellant interprets section 998(c)'s definition to restrict "g...