U.S. v. Burns, 04-2901.

• Citation: 438 F.3d 826
• Decision Date: 16 February 2006
• Docket Number: No. 04-2901.,No. 04-2933.,04-2901.,04-2933.
• Parties: UNITED STATES of America, Appellant/Cross-Appellee, v. Travis Ray BURNS, Appellee/Cross-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

Page 826

438 F.3d 826

UNITED STATES of America, Appellant/Cross-Appellee, v. Travis Ray BURNS, Appellee/Cross-Appellant.

No. 04-2901.

No. 04-2933.

United States Court of Appeals, Eighth Circuit.

Submitted: May 10, 2005.

Filed: February 16, 2006.

Shawn S. Wehde, argued, Asst. U.S. Attorney, Sioux City, IA, for appellant.

Robert A. Lengeling, argued, Sioux City, IA, for appellee.

Before WOLLMAN, BRIGHT, and BYE, Circuit Judges.

BYE, Circuit Judge.

The United States appeals arguing the district court's¹ sixty percent downward departure was excessive. Travis Ray Burns cross-appeals arguing the district court erred in determining the starting point for its departure. We affirm.

I

Burns was indicted on one count of conspiracy to manufacture and distribute fifty grams or more of methamphetamine in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A) and 846. The government notified Burns it intended to seek enhanced penalties under 21 U.S.C. § 851, making him subject to a mandatory life sentence. Absent the § 851 enhancement, Burns faced a sentencing range of 188 to 235 months. Burns cooperated and in return the government agreed to move for a downward departure under United States Sentencing Guidelines (U.S.S.G.) § 5K1.1 and 18 U.S.C. § 3553(e).

At sentencing, the government explained Burns immediately admitted his involvement and debriefed on two separate occasions, providing detailed information on several groups involved in manufacturing methamphetamine. Burns testified twice before the grand jury, and provided information in several ongoing investigations. His cooperation assisted the government in establishing drug quantity evidence against Brad Messerly, and he was a key witness against Victor DeFoe, thereby enabling the government to obtain an indictment which led to his plea of guilty. The government characterized Burns's cooperation as timely, truthful and complete, and recommended a fifteen percent departure from a 360 month sentence.

The district court rejected the government's recommendation and departed sixty percent to 144 months. The court summarized its consideration of the § 5K1.1 factors as follows:

I'm going to use 360 months as a starting point. In this case I specifically find under the 5K1.1 factors, factor number 5, the timeliness of the defendant's assistance, the defendant was exceptionally timely in this case. My understanding is he started cooperating as soon as he was arrested. To me that's exceptional timeliness. While some defendants start that early, virtually no defendants start earlier than that . . . .

So I find that his timeliness was exceptional and apparently started cooperating before he was advised of the impact of the United States Sentencing Guidelines, before he knew anything about how the guidelines might affect his sentence, before he exercised his Sixth Amendment right to have counsel present. So I think in this case the fifth factor weighs very heavily in favor of the defendant . . . .

Number 4 does not apply, any injury suffered or danger of risk because I haven't heard anything about that.

Number 3, the nature and extent of the defendant's assistance, in this case based on the representations of the assistant U.S. attorney, I find that the defendant provided every single bit of information he knew, so you couldn't — the extent of the defendant's assistance could not be greater in the sense that he provided all of the information he knew.

Now, it's true that some defendants have greater information which leads to indictments of more people. But I don't think that's necessarily the test. I think the test is did the defendant provide substantial assistance on everything he knew, and in this case he did. So the defendant scores very highly on the third prong.

Defendant scores very highly on the second prong, truthfulness, completeness, and reliability of the information. There's no information that the defendant's substantial assistance was anything but a hundred percent complete, a hundred percent truthful, and a hundred percent reliable. So Mr. Burns scores very highly on the second prong.

On — the first prong is the Court's evaluation of significance and usefulness of the defendant's usefulness taking into consideration the government's evaluation of the assistance rendered. Here the government has indicated that the defendant testified twice in front of the grand jury, that he established the drug quantity on one defendant and led to the indictment and guilty plea of another defendant. I find that that was both very significant and very useful.

Now for some reason which the government refuses to disclose, they only recommend 15 percent, but they won't tell me why they only recommend 15 percent. And the government refuses to indicate how any one of the five 5K1.1 factors affect the 15 percent recommendation.

So while I do take into consideration the government's evaluation of the significance and usefulness, it's hard to put any weight on the 15 percent recommendation because the government refuses to disclose how they arrive at that recommendation.

And looking back on the other sentencings that I've had, that recommendation is in my view substantially lower than other recommendations the government has made for similarly situated defendants.

Having said all that, I have the independent right under 5K1.1 to evaluate the substantial assistance based on the 5K1 factors as I see it.

Having taken into consideration the fact that the defendant scores very, very highly on the second factor, the third factor, and the fifth factor, I'm going to reduce the defendant's sentence substantially beyond what the government recommends in this case. That ought to come as no surprise to the government because I have a ten-year history of doing that because I just evaluate the five factors differently than — than how the government does, and the government refuses to disclose how they do it to me.

Sent. Tr. at 12-15.

On appeal, the government argues the district court ignored its recommendation for a fifteen percent departure, and the court's sixty percent departure was excessive in light of Burns's assistance. Burns cross-appeals arguing the district court should have departed from the 188 to 235 month guideline range instead of from the 360-month presumptive life sentence.

II

At sentencing, a district court must determine the appropriate guideline sentencing range, including whether "a traditional departure is appropriate under. . . the Federal Sentencing Guidelines." United States v. Haack, 403 F.3d 997, 1002-03 (8th Cir.), cert. denied, ___ U.S. ___, 126 S.Ct. 276, 163 L.Ed.2d 246 (2005). "Once the guidelines sentence is determined, the court shall then consider all other factors set forth in [18 U.S.C.] § 3553(a) to determine whether to impose the sentence under the guidelines or a non-guidelines sentence." Id. at 1003. On appeal, we review the district court's interpretation and application of the guidelines de novo and any departure from the guideline range for an abuse of discretion. United States v. Mashek, 406 F.3d 1012, 1017 (8th Cir.2005). If we conclude the guidelines were properly employed, we "review [the] sentence for unreasonableness, guided by the sentencing factors listed in 18 U.S.C. § 3553(a)." United States v. Pizano, 403 F.3d 991, 995 (8th Cir.2005).

The parties agree Burns was subject to a mandatory life sentence. Thus, there is no dispute as to the appropriate guideline range. Similarly, inasmuch as the government moved for a downward departure, it concedes the district court acted within its discretion in concluding a departure was appropriate. Nevertheless, the government contends the district court's departure was excessive in light of its recommended fifteen percent departure.

"Upon motion of the government stating that the defendant has provided substantial assistance in the investigation or prosecution of another person . . . the court may depart from the guidelines." U.S.S.G. § 5K1.1. The commentary to § 5K1.1 requires "substantial weight" be given to the government's evaluation of the extent of the assistance. U.S.S.G. § 5K1.1 cmt. n. 3. The government's recommendation is not, however, controlling and ultimately the district court determines the appropriate reduction. Haack, 403 F.3d at 1005; see also U.S.S.G. § 5K1.1(a). In deciding the appropriate reduction, "[a] recommendation by the government that does not adequately explain its reasoning is entitled to less weight . . . than a more fully explained recommendation." Haack, 403 F.3d at 1005 n. 2.

To depart, a court must have "reasons" that shall be "stated." See 18 U.S.C. § 3553(c); U.S.S.G. § 5K1.1(a). The § 5K1.1 factors which the district court must consider are not, however, an "`exhaustive list,' and the district court is not required `to examine each of the listed factors in § 5K1.1 on the record and explain exactly just what weight it gives to each in its departure decision.'" United States v. Dalton, 404 F.3d 1029, 1033 (8th Cir.2005) (citations omitted). When exercising its sentencing discretion, a district court abuses its discretion when it

fails to consider a relevant factor that should have received significant weight, gives significant weight to an improper or irrelevant factor, or considers only appropriate factors but nevertheless commits a clear error of judgment by arriving at a sentence that lies outside the limited range of choice dictated by the facts of the case.

Haack, 403 F.3d at 1004.

The government contends the district court abused its discretion by failing to adopt its recommendation for a fifteen percent downward departure. It further contends the district court offered insufficient explanation for its sixty percent departure. We disagree. Indeed, viewing this record, it is the government that was unable, despite repeated invitations from the district court, to offer any explanation for its position. Conversely, the record demonstrates the...