U.S. v. Blue

Decision Date09 March 2009
Docket NumberNo. 07-5296.,07-5296.
Citation557 F.3d 682
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Deborah Lucille BLUE, Defendant-Appellant.
CourtU.S. Court of Appeals — Sixth Circuit

Before MARTIN and KETHLEDGE, Circuit Judges; CARR, Chief District Judge.*


BOYCE F. MARTIN, JR., Circuit Judge.

Defendant Deborah Blue requests that her case "be remanded back to the district court for resentencing with instructions to grant a reduction in sentence for substantial cooperation." Blue had moved the district court to grant a departure under Section 5K1.1 of the United States Sentencing Guidelines based on her substantial assistance, even though the government did not file a Section 5K1.1 motion. The district court denied her motion and did not depart from the Guidelines range under Section 5K1.1. Because the district court's sentence was reasonable, we AFFIRM the judgment.


In August 2005, police executed a search warrant where Blue worked and seized 25.8 grams of cocaine base or "crack," as it is known, from a back room. Blue admitted that the crack was hers and that she helped sell it. Blue stated that the day after her arrest, she agreed to help the police set up her supplier by arranging for another drug delivery to be recorded. This sting led to her supplier's arrest and conviction.

Blue was indicted and charged with four counts of distributing cocaine base, one count of distributing five grams or more of cocaine base, and one count of possessing more than five grams of cocaine base with the intent to deliver. 21 U.S.C. §§ 841(a)(1), (b)(1)(C), (b)(1)(B). The government offered Blue a plea agreement that would have required her to plead guilty to possession with intent to distribute five grams or more of cocaine in connection with her 2005 arrest and to plead guilty to an unindicted charge of possession of fifty grams of cocaine base with intent to distribute stemming from a 2002 drug arrest by Tennessee state police that had not resulted in a prosecution. As part of the agreement, the government stated that it would file a motion for a downward departure under 18 U.S.C. § 3553(e) and U.S.S.G. § 5K1.1 based on Blue's substantial assistance. Blue rejected the plea agreement because she did not want to plead guilty to the unindicted 2002 charge. The government offered Blue a second plea agreement, which she accepted by pleading guilty to two counts of distributing cocaine base and one count of possession with intent to distribute five grams of cocaine base. The second plea agreement did not require Blue to plead guilty to the unindicted charge related to the 2002 arrest, nor did it commit the government to moving for a downward departure based on substantial assistance.

The parties proceeded to sentencing. A probation officer prepared a presentence report, calculating Blue's offense level as 35 and her criminal history category as VI. The applicable Guidelines range was 292-to-365 months' imprisonment. The report concludes that "the probation officer has no information concerning the offense of the offender which would warrant a departure from the prescribed sentencing guidelines."

Before her sentencing, Blue filed a motion for a downward departure from the Guidelines range under Section 5K1.1 based on her participation in setting up her supplier and recording the drug transaction between them. The Guidelines instruct a sentencing court to consider a departure under Section 5K1.1 only upon motion of the government. See U.S.S.G. § 5K1.1. Blue argued before the district court that the government's only reason for withholding the motion was her refusal to plead guilty to the unindicted 2002 charge. That, she said, was unfair because she had already assisted the government and only lost its support in seeking the departure because of her decision to exercise her constitutional right to a jury trial on the uncharged 2002 offense.

At Blue's sentencing hearing, the court heard oral argument on Blue's motion for downward departure and denied it, ruling that the government had articulated sufficient reasons for withholding a Section 5K1.1 motion and that its refusal to file it was not solely to penalize Blue for exercising her right to trial. In so doing, the court observed that the government's decision not to file the substantial assistance motion was permissible, based on Blue's "refusal to sign the initial plea agreement," her "failure to acknowledge her involvement in drug trafficking about which the United States has information," and her "failure to fully and faithfully cooperate with the government." The district court further observed that "aside from the bare contention that the government's motive for refusing to grant a motion for a downward departure is unconstitutional, the Defendant has failed to articulate any real basis for her contention."

The parties otherwise agreed to the presentence report's Guidelines calculation. Referencing the information contained in the report as well as the Section 3553(a) factors, the court sentenced Blue to 292 months' imprisonment, eight years of supervised release and $300 in special assessments. Blue now appeals this judgment, arguing only that the district court "erred in denying [her][m]otion for [d]eparture for substantial assistance pursuant to U.S.S.G. § 5K1.1."


We must begin by situating Blue's appeal in the context of appellate review of sentencing post-Booker—a task that, regrettably, the parties did not undertake in their briefs. "Post-Booker, we review a district court's sentencing determination under a deferential abuse-of-discretion standard, for reasonableness," United States v. Presley, 547 F.3d 625, 629 (6th Cir.2008), and our inquiry is "limited to determining whether [a sentence is] reasonable." Gall v. United States, ___ U.S. ___, ___, 128 S.Ct. 586, 595, 169 L.Ed.2d 445 (2007) (internal quotations omitted). We "first ensure that the district court committed no significant procedural error, such as failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines range as mandatory, failing to consider the § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence—including an explanation for any deviation from the Guidelines range." Id. at 597. If there is no significant procedural error, this Court "consider[s] the substantive reasonableness," while giving "due deference" to the district court's consideration of the § 3553(a) factors. Id. Post-Booker, this Court generally "do[es] not review a district court's decision not to depart downward unless the record shows that the district court was unaware of, or did not understand, its discretion to make such a departure." United States v. Santillana, 540 F.3d 428, 431 (6th Cir.2008).

Blue does not appeal the district court's decision not to vary from the advisory Guidelines in light of the Section 3553(a) factors. Rather, she challenges the district court's denial of her motion "for a departure of her sentence based on substantial cooperation pursuant to U.S.S.G. [§ ] 5K1.1."


Under the pre-Booker mandatory Guidelines regime, the departures outlined in Chapter 5 of the Guidelines provided a sentencing court with limited authority to impose a sentence outside the Guidelines range by considering "specific offender characteristics," "substantial assistance to authorities," or "other grounds for departure" as described in Chapter 5 of the Guidelines. See U.S.S.G. §§ 5H, 5K, 5H1.1 (introductory commentary) ("The following policy statements address the relevance of certain offender characteristics to the determination of whether a sentence should be outside the applicable guideline range . . ."). Section 5K1.1, the departure at issue here, 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.S.G. § 5K1.1 (emphasis added).

Mandatory Guidelines meant that a sentencing court had discretion to sentence outside the Guidelines range only as prescribed by the Guidelines. Thus, with a Section 5K1.1 departure, a government motion was a condition precedent to reducing a sentence based on substantial assistance. See Wade v. United States, 504 U.S. 181, 185, 112 S.Ct. 1840, 118 L.Ed.2d 524 (1992) (observing that the Government has a "power, not a duty, to file a substantial-assistance motion"); United States v. Truman, 304 F.3d 586, 591 (6th Cir.2002) (recognizing the government's "exclusive gate-keeping authority over the triggering mechanism of § 5K1.1" and its "power to limit the court's exercise of discretion to depart downward based on substantial assistance."). And during the government as "gate-keeper" era, the Supreme Court explained that the circumstances where federal courts could review the prosecution's withholding of a substantial-assistance motion were limited to cases where, "the refusal was based on an unconstitutional motive." Wade, 504 U.S. at 185-86. 112 S.Ct. 1840. Typically, then, defendants predictably focused their attacks on improper withholding of a Section 5K1.1 motion, because only upon such a motion could a district court consider substantial assistance in sentencing.

Enter Booker and advisory Guidelines sentencing-now, sentencing courts are not constrained when they fashion "reasonable" sentences that are "sufficient [] but not greater than necessary," 18 U.S.C. § 3553(a), and therefore "appropriate for the individual defendant in light of the statutory sentencing factors. . . ." Nelson v. United States, 555 U.S. ___, 129 S.Ct....

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