U.S. v. Abuhouran

• Decision Date: 19 November 1998
• Docket Number: No. 97-1662,97-1662
• Citation: 161 F.3d 206
• Parties: UNITED STATES of America v. Hitham ABUHOURAN a/k/a Steve HOURAN, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

Page 206

161 F.3d 206

UNITED STATES of America v.Hitham ABUHOURAN a/k/a Steve HOURAN, Appellant.

No. 97-1662.

United States Court of Appeals Third Circuit.

Argued Oct. 7, 1998.

Decided Nov. 19, 1998.

Alan J. Chaset(Argued), Alexandria, VA, for Appellant.

Michael R. Stiles, United States Attorney, Walter S. Batty, Jr., Assistant United States Attorney, Chief of Appeals, Robert A. Zauzmer(Argued), Assistant United States Attorney, Philadelphia, PA, for Appellee.

Before: BECKER, Chief Judge, NYGAARD and NOONAN, ^* Circuit Judges.

OPINION OF THE COURT

BECKER, Chief Judge.

This appeal by Hitham Abuhouran requires us to consider whether, in the wake of Koon v. United States, 518 U.S. 81, 116 S.Ct. 2035, 135 L.Ed.2d 392(1996), Sentencing Guideline§ 5K2.0 gives a district court the authority to grant a defendant a downward departure from the Guidelines range on the ground that he offered substantial assistance to the government even though the government has not moved for such a departure under Sentencing Guideline§ 5K1.1.The Court of Appeals for the D.C. Circuit recently held that, in light of Koon, a district court does have such authority.In re Sealed Case (Sentencing Guidelines' "Substantial Assistance"), 149 F.3d 1198(D.C.Cir.1998), rehg. granted, 159 F.3d 1362(D.C.Cir.1998).Although we have previously ruled that a district court has no such authority, seeUnited States v. Higgins, 967 F.2d 841, 845(3d Cir.1992), we must address this question anew because of the sea change in the departure area effected by Koon.For reasons explained below--including Koon and the practical and policy problems inherent in implementing Abuhouran's proposal--we hold that a district court has no authority to make such a departure except in certain limited circumstances not present here.Accordingly, we will affirm the judgment of the district court, which imposed sentence upon Abuhouran without so departing.¹

I

The case arises out of Abuhouran's plea of guilty to an indictment charging various crimes emanating from a complicated bank fraud.Abuhouran and his codefendants were charged in a fifty-seven count indictment.This indictment centered around the defendants' fraudulent activities leading to the collapse of the Bank of the Brandywine Valley.Abuhouran was charged in twenty-seven counts; on the eve of trial he pled guilty to all counts.²He was sentenced to a term of imprisonment of 188 months, in addition to other sanctions.Since the issue before us relates only to events occurring after Abuhouran pled guilty, we need not detail the facts underlying the indictment.We will, however, briefly summarize the plea agreement and subsequent relevant events.

Abuhouran pled guilty pursuant to a plea agreement in which he agreed to cooperate fully and truthfully with the government.He also acknowledged that:

[I]f the government determines that the defendant has not provided full and truthful cooperation, or has committed any federal, state, or local crime between the date of this agreement and his sentencing, or has otherwise violated any other provision of this agreement, the agreement may be voided by the government....

App.at 28.The government, in turn, agreed to:

Make a motion to allowthe Court to depart from the Sentencing Guidelines pursuant to Sentencing Guidelines§ 5K1.1 ... if the government, in its sole discretion, determines that the defendant has provided substantial assistance in the investigation or prosecution of another person who has committed an offense.

App.at 29.Abuhouran then began to provide the government with a wide variety of information concerning matters ranging from alleged public corruption to international terrorism.

At sentencing, the government refused to move for a downward departure for substantial assistance under § 5K1.1.It declined because it concluded that during the period Abuhouran was allegedly cooperating with the government he had been engaged in continuing criminal activity.Furthermore, the government determined that, in the course of his alleged cooperation with the authorities, Abuhouran had lied repeatedly.The government therefore considered Abuhouran in breach of the plea agreement, and it refused to submit a § 5K1.1 motion.The district court denied Abuhouran's request that it compel the government to submit such a motion.United States v. Abuhouran, No.Crim. 95 560-1, 1997 WL 299366(E.D.Pa.May 28, 1997).

Abuhouran then moved for a downward departure under § 5K2.0, the general departure provision of the Guidelines, based on his alleged substantial assistance to the government.The government opposed this motion, and the district court denied it, United States v. Abuhouran, 972 F.Supp. 326, 327(E.D.Pa.1997).The court first noted that, under our decision in United States v. Higgins, 967 F.2d 841(3d Cir.1992), which interpreted Wade v. United States, 504 U.S. 181, 112 S.Ct. 1840, 118 L.Ed.2d 524(1992), district courts have no authority, in the absence of either a government motion or extraordinary circumstances, to depart downward on the basis of substantial assistance under either § 5K1.1 or § 5K2.0. 972 F.Supp. at 327.The court also rejected Abuhouran's argument that he was entitled to a § 5K2.0 departure because his assistance did not fall within the core of § 5K1.1.It reached this conclusion because the assistance was "provided to the executive branch in the furtherance of its law enforcement duties," not to some other branch of government for a different purpose.972 F.Supp. at 327 n. 3.

Abuhouran timely appealed from the judgment.The district court properly exercised jurisdiction over the matter under 18 U.S.C. § 3231.We exercise appellate jurisdiction over the final judgment of the district court under 18 U.S.C. § 3742and28 U.S.C. § 1291.We review a district court's decisions concerning departures from the Sentencing Guidelines for abuse of discretion.United States v. Sally, 116 F.3d 76, 78(3d Cir.1997).To the extent that this case presents a legal question of the scope of the authority granted to district courts under the Sentencing Guidelines we need not defer to the district court's conclusion, and we will review its holding for legal error.Koon, 518 U.S. at 100, 116 S.Ct. 2035("[W]hether a factor is a permissible basis for departure under any circumstances is a question of law, and the court of appeals need not defer to the district court's resolution of the point....A district court by definition abuses its discretion when it makes an error of law."(citations omitted)).

II

A

We turn to the central issue in this case: Abuhouran's contention that a district court has the authority, under Sentencing Guideline§ 5K2.0, to grant a defendant a downward departure based on his substantial assistance to the government in the absence of a government motion under § 5K1.1.Under § 5K2.0, a district court"may impose a sentence outside the range established by the applicable guidelines" in exceptional cases.U.S.S.G. § 5K2.0."The Guidelines ... 'place essentially no limit on the number of potential factors that may warrant departure.' "Koon, 518 U.S. at 106, 116 S.Ct. 2035(quotingBurns v. United States, 501 U.S. 129, 136-37, 111 S.Ct. 2182, 115 L.Ed.2d 123(1991)).Under § 5K1.1, a district court may depart from the Guidelines "[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.We begin by explaining how the court in In re Sealed Case (Sentencing Guidelines' "Substantial Assistance"), 149 F.3d 1198(D.C.Cir.1998), rehg. granted, 159 F.3d 1362(D.C.Cir.1998), reached the conclusion that a district court has the authority, under Sentencing Guideline§ 5K2.0, to grant a defendant a downward departure from the applicable guideline range for substantial assistance in the absence of a motion by the government.149 F.3d at 1204.³

The court began by exploring the Supreme Court's decision in Koon.It first noted that Koon divided the universe of possible departure factors into four parts: forbidden, encouraged, discouraged/mentioned, and unmentioned factors.149 F.3d at 1202(citingKoon, 518 U.S. at 93, 96, 116 S.Ct. 2035).The court initially observed that substantial assistance is not a prohibited factor.It then distinguished between the Guidelines' treatment of substantial assistance with and without a government motion, concluding that, simply because substantial assistance with a motion is an encouraged factor does not mean that substantial assistance without a motion is a discouraged factor.It reasoned that, although § 5K1.1 covers substantial assistance with a motion, " § 5K1.1 ... cannot be viewed as adequate consideration of substantial assistance without a government motion."149 F.3d at 1204.The court observed that the Guidelines' enabling legislation, 28 U.S.C. § 994(n), "explicitly directed the Commission to assure that the guidelines reflect the general appropriateness of lesser sentences for defendants who substantially assist the prosecution."149 F.3d at 1204.Because § 5K1.1 only takes into account substantial assistance with a motion, the court concluded that, under Koon, substantial assistance without a motion is an unmentioned factor.Therefore, the court reasoned, it should be considered in determining whether a case falls outside "the relevant guideline heartland," and thus may be the basis for a downward departure under § 5K2.0. 149 F.3d at 1204.

Although we do not quarrel with the Sealed Case court's explication of Koon, we cannot agree with its application of the resulting rules to the present issue.As we set out in further detail below, we think that the court misapplied Koon.Substantial assistance to the government is taken into account in Sentencing Guideline§ 5K1.1, and therefore must be considered as a factor mentioned in the Guidelines and not...