U.S. v. Billue

• Decision Date: 23 July 2009
• Docket Number: No. 08-2834.,08-2834.
• Citation: 576 F.3d 898
• Parties: UNITED STATES of America, Appellee, v. Martin Jermaine BILLUE, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

576 F.3d 898

UNITED STATES of America, Appellee, v. Martin Jermaine BILLUE, Appellant.

No. 08-2834.

United States Court of Appeals, Eighth Circuit.

Submitted: May 15, 2009.

Filed: July 23, 2009.

Tracy Lynne Perzel, U.S. Attorney's Office, argued, Minneapolis, MN, for Appellee.

Robert Joseph Kolstad, argued, Minneapolis, MN, for Appellant.

Martin Jermaine Billue, Anoka, MN, pro se.

Before LOKEN, Chief Judge, EBEL¹ and CLEVENGER², Circuit Judges.

EBEL, Circuit Judge.

Martin James Billue ("Billue") pled guilty to conspiracy to distribute cocaine and marijuana, in violation of 21 U.S.C. §§ 841 and 846. Because of the quantity of drugs involved and Billue's prior conviction for a felony drug offense, he was subject to a mandatory minimum sentence of 240 months' imprisonment. Based on his substantial assistance to the Government in convicting other members of the conspiracy, however, the Government moved for a downward departure from the statutory minimum. The district court³ granted that motion, sentencing Billue to 108 months' imprisonment followed by 10 years of supervised release. Billue appeals, asserting that the district court erred by concluding (1) that in ruling on the Government's motion, it was permitted to consider only factors related to Billue's substantial assistance; and (2) that the starting point for the downward departure was the statutory minimum sentence.

Exercising jurisdiction under 18 U.S.C. § 3742 and 28 U.S.C. § 1291, we affirm.

I. BACKGROUND

For roughly ten months in 2007, Billue was part of a cocaine and marijuana-trafficking ring in Minnesota and Michigan. The ring distributed approximately fifteen kilograms of cocaine and ninety kilograms of marijuana. In January of 2008, Billue and his fellow traffickers were charged in a single-count indictment with conspiracy to distribute at least five kilograms of cocaine and marijuana, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846. Because Billue had a prior felony drug conviction, he faced a mandatory minimum sentence, under 21 U.S.C. § 841(b)(1)(A), of twenty years' imprisonment.

Pursuant to a plea agreement, Billue pled guilty to the single count of conspiracy to distribute. That agreement identified Billue's base offense level under the Sentencing Guidelines as thirty-four and included the Government's recommendation for a three-level reduction for acceptance of responsibility if Billue were to testify truthfully at his change-of-plea hearing. However, the agreement also noted that because of his past criminal conduct, Billue might qualify as a career offender under U.S.S.G. § 4B1.1, thus raising his base offense level to thirty-seven. Based on the parties' belief that Billue's Criminal History Category under the Guidelines would be VI, the plea agreement calculated Billue's sentencing range as either 240 months or 262-327 months, depending on whether he was sentenced as a career offender.⁴

The plea agreement further provided that Billue would cooperate with the Government in the prosecution of his co-conspirators and other drug-trafficking suspects, and that if he cooperated fully and truthfully so as to render substantial assistance, the Government would file a motion, pursuant to U.S.S.G. § 5K1.1 and 18 U.S.C. § 3553(e), giving the district court authority to depart downward from the advisory Guideline range and the statutory minimum sentence, respectively. Billue rendered substantial assistance to the Government's satisfaction, and the Government filed the promised motion for downward departure.

Prior to sentencing, Billue filed a "Position with Regard to Sentencing" brief. In that brief, he argued that in ruling on the motion for downward departure, the district court "must sentence Mr. Billue pursuant to the scheme laid out at Section 3553(a) of Title 18 of [the] United States Code." (Billue's Sent. Br. at 3 (emphasis added).) As a result, according to Billue, the district court should consider his personal history and characteristics, and particularly his "unfortunate upbringing and early abuse of drugs," as part of its analysis of the motion for departure. (Id. at 2.)

At sentencing, the district court found that under the Guidelines,⁵ Billue's total offense level was thirty-one, and his criminal history category was IV, rather than the VI anticipated in the plea agreement. In the absence of a statutory minimum, the district court explained, the advisory Guidelines range would have been 151-188 months; however, because of that mandatory minimum, Billue's "imprisonment range" under the Guidelines was the statutorily mandated 240 months. (Sent. trans. at 14.) See 21 U.S.C. § 841(b)(1)(A); U.S.S.G. § 5G1.1(b). The district court thus concluded that 240 months' imprisonment was "in fact the starting point for the Court" in applying any downward departure it might grant in response to the Government's motion. (Sent. trans. at 3.) While acknowledging that 240 months was "the mandatory minimum, statutorily, and . . . [was] the starting point" for a departure, Billue nonetheless proposed that the inapplicable advisory Guidelines range of 151-188 months "should be in play at least in some degree" in the district court's ruling on that motion. (Id. at 4.)

Billue also renewed, at sentencing, his argument that the court could consider factors other than those related to his substantial assistance — and specifically § 3553(a) factors — in ruling on the motion for downward departure. The district court responded by explaining that under governing Eighth Circuit law, "the only basis for [departure] underneath [the statutory minimum of] 240 [months] is not a 3553(a) factor. . . . Rather, it is the level of his assistance that he gave the United States." (Id. at 6-7.) With Billue's objections preserved for appeal, the district court considered only Billue's substantial assistance to the Government and sentenced him to 108 months in prison, a downward departure of 132 months from the statutory minimum. Billue timely appealed.

II. DISCUSSION

Billue asserts that the district court erred by concluding (1) that in ruling on the Government's motion, it was permitted to consider only factors related to Billue's substantial assistance; and (2) that the starting point for the downward departure was the statutory minimum sentence.

A. Standard of review

The district court's application of the Sentencing Reform Act is an issue of law that we review de novo. United States v. Foster, 514 F.3d 821, 824 (8th Cir.2008); United States v. Bahena, 223 F.3d 797, 804 (8th Cir.2000).

B. What the district court may consider in ruling on motions under 18 U.S.C. § 3553(e) and U.S.S.G. § 5K1.1

1. 18 U.S.C. § 3553(e) and U.S.S.G. § 5K1.1

We begin with the plain language of the statute and guideline. Section 3553(e), entitled "Limited authority to impose a sentence below a statutory minimum," reads, in full, as follows:

Upon motion of the Government, the court shall have the authority to impose a sentence below a level established by statute as a 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) (emphasis added). Guideline § 5K1.1 — entitled "Substantial Assistance to Authorities (Policy Statement)" — provides, in turn, that "[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, the court may depart from the guidelines." U.S.S.G. § 5K1.1. "The appropriate reduction shall be determined by the court for reasons stated that may include, but are not limited to, consideration of the following:"

(1) the court's evaluation of the significance and usefulness of the defendant's assistance, taking into consideration the government's evaluation of the assistance rendered;

(2) the truthfulness, completeness, and reliability of any information or testimony provided by the defendant;

(3) the nature and extent of the defendant's assistance;

(4) any injury suffered, or any danger or risk of injury to the defendant or his family resulting from his assistance;

(5) the timeliness of the defendant's assistance.

Id. § 5K1.1(a). Section 5K1.1's application notes further explain that "[u]nder circumstances set forth in 18 U.S.C. § 3553(e) and 28 U.S.C. § 994(n), as amended, substantial assistance in the investigation or prosecution of another person who has committed an offense may justify a sentence below a statutorily required minimum sentence." Id., application note 1. "Substantial assistance" is defined as assistance "directed to the investigation and prosecution of criminal activities by persons other than the defendant." Id., application note 2.

2. Governing Eighth Circuit law

We have made clear that when a district court is ruling on a motion for downward departure pursuant to § 3553(e) and/or § 5K1.1, that court may consider only factors related to the defendant's substantial assistance to the Government. United States v. Johnson, 517 F.3d 1020, 1023 (8th Cir.2008); United States v. Williams, 474 F.3d 1130, 1130-32 (8th Cir. 2007); United States v. Pepper, 412 F.3d 995, 997-99 (8th Cir.2005); see also United States v. Burns, 500 F.3d 756, 760 (8th Cir.2007) (en banc), vacated and remanded, ___ U.S. ___, 128 S.Ct. 1091, 169 L.Ed.2d 804 (2008); United States v. Plaza, 471 F.3d 928, 930 (8th Cir.2006); United States v. Saenz, 428 F.3d 1159, 1162 (8th Cir.2005). Most crucial for our purposes here is that "[i]n reducing a sentence below the statutory minimum under 18 U.S.C. § 3553(e) for a defendant's substantial assistance, a court . . . may not use the factors in 18 U.S.C. § 3553(a) to decrease the sentence further." Johnso...