U.S. v. Ahlers, 01-2570.

• Decision Date: 30 September 2002
• Docket Number: No. 01-2570.,No. 01-2571.,01-2570.,01-2571.
• Citation: U.S. v. Ahlers, 305 F.3d 54 (1st Cir. 2002)
• Parties: UNITED STATES of America, Appellee, v. John Andrew AHLERS, Defendant, Appellant. United States of America, Appellee, v. Peter Jordan Ahlers, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

Page 54

305 F.3d 54

UNITED STATES of America, Appellee, v.John Andrew AHLERS, Defendant, Appellant.

United States of America, Appellee, v.Peter Jordan Ahlers, Defendant, Appellant.

No. 01-2570.

No. 01-2571.

United States Court of Appeals, First Circuit.

Heard July 31, 2002.

Decided September 30, 2002.

Gordon R. Blakeney, Jr. for appellantJohn Andrew Ahlers.

David Kreisler, with whom Daniel G. Lilley Law Offices, P.A., was on brief, for appellantPeter Jordan Ahlers.

Margaret D. McGaughey, Assistant United States Attorney (Appellate Chief), with whom Paula D. Silsby, United States Attorney, was on brief, for appellee.

Before SELYA, Circuit Judge, GIBSON^* and GREENBERG,^** Senior Circuit Judges.

SELYA, Circuit Judge.

After pleading guilty to crimes that carry a statutorily imposed minimum sentence, John Andrew Ahlers and Peter Jordan Ahlers asked the district court to consider departing below that minimum based on grounds unrelated to their substantial assistance to the authorities.The district court ruled that it lacked the authority, under 18 U.S.C. § 3553(e), to honor this request.Armed with nothing but the sharp point of statutory language, the Ahlers brothers present us with the direct question of whether a government motion for a downward departure to reflect a defendant's substantial assistance removes the constraint of a statutory minimum sentence and opens the door for consideration of departure grounds unrelated to substantial assistance.We hold that a substantial assistance motion does not have so liberating an effect.Accordingly, we affirm the district court's assessment of the limits that Congress placed upon its sentencing authority under 18 U.S.C. § 3553(e).

I.BACKGROUND

During the 1990s, a drug kingpin, Robert Shimek, directed a large-scale illicit enterprise reaching from Canada to New Orleans.Typically, Shimek's henchmen would deposit illegal drugs—marijuana, ecstacy, hashish, LSD, and the like—at remote locations in Canada (usually near Vermont or Maine); runners would smuggle the contraband in backpacks across the border and return with the proceeds of previously consummated drug sales; their accomplices in the United States would repackage the drugs for distribution; and other participants would market them at music concerts and elsewhere.

For a period of roughly six months, the Ahlers brothers worked the channels of this underground empire, driving Shimek to various concerts, acting as couriers, and selling drugs.In October of 1997, their swift chariot spun off the fast track: a Florida state trooper apprehended them driving a vehicle that contained two large nitrous oxide tanks, sheets of LSD, marijuana, and sundry drug paraphernalia.They were found guilty of state drug-trafficking charges and sentenced to serve 60 days in jail (with additional time suspended).They maintain, with considerable support in the record, that upon their release they ended their intercourse with Shimek, kept to the straight and narrow, and pursued exemplary lifestyles.

Notwithstanding this about-face, the past came back to haunt them.On June 21, 2000, a federal grand jury handed up a three-count indictment arising out of their participation in Shimek's network.Count 1 alleged that the brothers conspired to distribute, and to possess with intent to distribute, various controlled substances.Count 2 alleged that they conspired to import various controlled substances into the United States.Count 3 alleged that they possessed various controlled substances with intent to distribute.See21 U.S.C. §§ 841(a)-(b),846,952(a)-(b),960(a)-(b),963.On February 7, 2001, both men pleaded guilty to count 1 of the indictment.

After tabulating all the drugs associated with the offense of conviction and converting them to their marijuana equivalent, seeUSSG § 2D1.1, the probation department compiled a presentence investigation report (PSI Report) that attributed a total of 267 kilograms of marijuana equivalent to the defendants.Crediting each of them with a three-level downward dip for acceptance of responsibility, USSG § 3E1.1, the PSI Report proposed an adjusted offense level of 23.This produced a guideline sentencing range (GSR) of 51-63 months for John Ahlers(who was ranked in criminal history category II) and 57-71 months for Peter Ahlers(who was ranked in criminal history category III).Finally, the PSI Report noted that, by statute, the offense of conviction called for a mandatory minimum sentence of 60 months.See21 U.S.C. § 841(b)(1)(B).

At the disposition hearing, the government asked the court to depart downward to reflect the Ahlers' substantial assistance in the investigation of others.See18 U.S.C. § 3553(e);USSG § 5K1.1.At the same time, the Ahlers cross-moved for additional departures based on extraordinary presentence rehabilitation.SeeUnited States v. Craven,239 F.3d 91, 99(1st Cir.2001)(discussing such departures);United States v. Sklar,920 F.2d 107, 115-17(1st Cir.1990)(similar);see generallyUSSG § 5K2.0.Pursuant to the plea agreement, the district court dismissed counts 2 and 3 of the indictment.It then granted each defendant a 21-month downward departure for substantial assistance, but stopped there.The court took the position that it did not have any authority to further depreciate the statutory minimum sentence based on a ground (like extraordinary presentence rehabilitation) unrelated to the defendants' substantial assistance.

Each defendant appeals from his 39-month incarcerative sentence, challenging the "lack of authority" holding.We consolidated the appeals for briefing and argument.

II.ANALYSIS

As said, the sole issue on appeal concerns the court's power to depart below the statutory minimum sentence on a ground unrelated to substantial assistance.Appellate jurisdiction from a denial of a departure request attaches when the sentencing court bases its action on a perception that it lacks the legal authority to grant the request.SeeUnited States v. Pierro,32 F.3d 611, 619(1st Cir.1994);United States v. Mariano,983 F.2d 1150, 1153-54(1st Cir.1993).Because the court below premised its refusal to depart on such a perceived lack of authority, we have jurisdiction to hear and determine these appeals.Moreover, the appeals hinge on a quintessentially legal judgment, thus engendering plenary review.Mariano,983 F.2d at 1154.

Whether there is anything of substance to be decided is another matter.Citing United States v. Chestna,962 F.2d 103(1st Cir.1992)(per curiam), the government hypothesizes that the issue raised in these appeals is barred by the doctrine of stare decisis.We start by testing that hypothesis.

In Chestna, the government moved pursuant to 18 U.S.C. § 3553(e)andUSSG § 5K1.1 for a downward departure reflecting the defendant's substantial assistance.¹962 F.2d at 104.The defendant simultaneously moved for a downward departure based on her unique family responsibilities.Id. at 104-05.She contended that the government's motion for a substantial assistance departure opened the door for consideration of other factors in determining the degree of the departure.Id. at 105.We upheld the district court's rejection of her claim.Id. at 106(stating that any additional factor not specifically listed in section 5K1.1"necessarily would relate to the substance of the initiating motion, i.e., a defendant's substantial assistance," in order to affect the extent of the departure).

Contrary to the government's importunings, our decision in Chestna does not conclusively refute the Ahlers' argument.In that case, the defendant posited that a sentencing court could take into account a factor unrelated to substantial assistance — family circumstances — when determining the extent of such a departure.The Ahlers, however, did not ask the lower court to consider an extraneous factor (in their case, rehabilitation) as a basis for enlarging a substantial assistance departure, but, rather, proffered that factor as a separate and distinct ground for departure.This is an issue that we did not reach in Chestna.Seeid. at 107.We reach it here.

As framed, the Ahlers' argument relies on their interpretation of 18 U.S.C. § 3553(e).That statute reads:

Limited authority to impose a sentence below a statutory minimum.— Upon motion from 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).

The Ahlers asseverate that when a sentencing court grants a government motion for a substantial assistance departure, the first textual sentence of this provision renders nugatory any statutory minimum penal sentence, and that the second textual sentence restores the court's full powers under the sentencing guidelines to depart on other grounds (as if no mandatory minimum existed).In the Ahlers' view, this means that the granting of a government motion pursuant to section 3553(e) invariably authorizes the sentencing court to impose a sentence below an otherwise applicable statutory mandatory minimum based not merely on substantial assistance but also on any other ground recognized under the guidelines.Thus, their thesis runs, the sentencing court should have entertained departure requests based on extraordinary presentence rehabilitation.

The force of this argument depends on the meaning of the words that Congress wrote.To determine that meaning, we start with the language of the statute.United States v. Charles George Trucking Co.,823 F.2d 685, 688(1st Cir.1987)."In searching a statute's text for a pellucid expression of congressional...