U.S. v. Burns

• Decision Date: 27 August 2007
• Docket Number: No. 04-2901.,No. 04-2933.,04-2901.,04-2933.
• Parties: UNITED STATES of America, Appellant, v. Travis Ray BURNS, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

500 F.3d 756

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

No. 04-2901.

No. 04-2933.

United States Court of Appeals, Eighth Circuit.

Submitted: September 27, 2006.

Filed: August 27, 2007.

Counsel who presented argument on behalf of the appellant was Robert L. Teig, AUSA, Cedar Rapids, IA. Also appearing on appellant's brief was Shawn S. Wehd, AUSA, Sioux City, IA.

Counsel who presented argument on behalf of the appellee was Richard S. Rhinehart of Sioux City, IA.

Before LOKEN, Chief Judge, BRIGHT, WOLLMAN, ARNOLD, MURPHY, BYE, RILEY, MELLOY, SMITH, COLLOTON, GRUENDER, and BENTON, Circuit Judges, En Banc.

WOLLMAN, Circuit Judge.

The United States appealed as excessive the downward departure granted by the district court for Burns's substantial assistance. Burns cross-appealed, arguing that the district court erred by selecting an incorrect guidelines range as a departure starting point. After a divided panel of this court affirmed, United States v. Burns, 438 F.3d 826 (8th Cir.2006), we granted the government's petition for a rehearing en banc and vacated the panel opinion. We now reverse the district court's departure and affirm its starting point.

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 of its intention to seek enhanced penalties under 21 U.S.C. § 851 that would subject him to a mandatory life sentence. In the absence of the § 851 enhancement, Burns faced a sentencing range of 188 to 235 months. Burns cooperated with the government and the government, in return, moved for a downward departure under United States Sentencing Guidelines Manual (U.S.S.G.) § 5K1.1 and 18 U.S.C. § 3553(e).

At sentencing, the government told the court that Burns had immediately admitted his involvement and had been debriefed on two separate occasions, providing detailed information on several groups involved in manufacturing methamphetamine. The court was also made aware that Burns had testified on two occasions before the grand jury and had provided information pertaining to several ongoing investigations. His cooperation assisted the government in establishing drug-quantity evidence against one defendant, Brad Messerly. In addition, Burns served as a key witness against a second defendant, Victor DeFoe, thereby enabling the government to obtain an indictment which led to a guilty plea. The government characterized Burns's cooperation as timely, truthful, and complete and recommended a 15 percent departure from a 360-month sentence.

The district court rejected the government's recommendation and departed 60 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.

[T]he 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 that the district court ignored its recommendation for a 15 percent departure and that the court's 60 percent (ten offense level) departure was excessive in light of Burns's assistance. Burns cross-appeals, arguing that the district court should have departed from the 188 to 235 month guidelines range instead of from the 360-month presumptive life sentence.

II.

When determining a sentence, the district court must first ascertain the governing guidelines range, then consider any permissible departures within the guidelines's structure, and finally, post-Booker, decide whether a non-guidelines sentence is more appropriate under the circumstances. See United States v. Haack, 403 F.3d 997, 1002-03 (8th Cir.), cert. denied, 546 U.S. 913, 126 S.Ct. 276, 163 L.Ed.2d 246 (2005). This case comes before us on appeal of the district court's guidelines departure and not from a post-Booker variance. We apply an abuse of discretion standard when we review for reasonableness the extent of a district court's sentence reduction below the sentencing guidelines or beneath the mandatory minimum sentence. See, e.g., United States v. Dalton, 404 F.3d 1029, 1032 (8th Cir.2005); United States v. Saenz, 428 F.3d 1159, 1161-62 (8th Cir.2005); United States v. Mashek, 406 F.3d 1012, 1017 (8th Cir.2005).

A § 3553(e) motion permits the court to sentence below a statutory minimum and a motion under § 5K1.1 authorizes the sentencing court to depart below the applicable advisory guideline range in determining the advisory guideline sentence. See United States v. Williams, 474 F.3d 1130, 1131 (8th Cir.2007) (citing Melendez v. United States, 518 U.S. 120, 128-29, 116 S.Ct. 2057, 135 L.Ed.2d 427 (1996)). Where, as here, a district court imposes a sentence below the statutory minimum in response to a § 3553(e) motion, the departure must be based "exclusively on assistance-related considerations." Id. at 1130-31. Although § 5K1.1 provides assistance-related factors that a district court may consider, it is not an exhaustive list. Dalton, 404 F.3d at 1033. The § 5K1.1(a) factors include:

(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.

U.S.S.G. § 5K1.1(a).

A district court abuses its discretion by issuing a ruling that 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.

We noted in Saenz that "[d]epartures under § 5K1.1 and reductions under § 3553(e) should not be untethered from the structure of the advisory guidelines." Saenz, 428 F.3d at 1162; see also United States v. Cammisano, 917 F.2d 1057, 1064 n. 5 (8th Cir.1990) (stat...