U.S. v. Cheng Ah-Kai

• Decision Date: 06 December 1991
• Docket Number: D,AH-KA,No. 105,105
• Citation: 951 F.2d 490
• Parties: UNITED STATES of America, Appellee, v. CHENGefendant-Appellant. ocket 91-1192.
• Court: U.S. Court of Appeals — Second Circuit

Page 490

951 F.2d 490

UNITED STATES of America, Appellee, v. CHENG AH-KAI, Defendant-Appellant.

No. 105, Docket 91-1192.

United States Court of Appeals, Second Circuit.

Argued Sept. 13, 1991.

Decided Dec. 6, 1991.

Cheryl Pollack, Asst. U.S. Atty. E.D.N.Y., Brooklyn, N.Y. (Andrew J. Maloney, U.S. Atty., Catherine E. Palmer, David W. Shapiro, Asst. U.S. Attys. E.D.N.Y., Brooklyn, N.Y.), for appellee.

David A. Lewis, The Legal Aid Soc., Federal Defender Services Appeals Unit, New York City, for defendant-appellant.

Before KEARSE, MINER and McLAUGHLIN, Circuit Judges.

MINER, Circuit Judge:

Defendant-appellant, Cheng Ah-Kai, appeals from a judgment of conviction entered on February 1, 1991 in the United States District Court for the Eastern District of New York (Nickerson, J.), after a plea of guilty to a charge of importing more than one kilogram of heroin into the United States, in violation of 21 U.S.C. § 952(a) and § 960(b)(1)(A). Prior to sentencing, the United States Attorney moved for downward departure from the sentence established in the United States Sentencing Guidelines ("U.S.S.G." or "sentencing guidelines") for Cheng's "truthful, forthright and important" cooperation with the government. Although Cheng argued for a sentence below the statutory minimum, the district court reluctantly agreed with the government that because the motion was made under U.S.S.G. § 5K1.1, it did not have the authority to depart below the statutory minimum sentence. The district court was in accord with the government's argument that departure below the statutory minimum must be preceded by a government motion made specifically under the authority of 18 U.S.C. § 3553(e). We reject the government's argument, vacate the judgment of the district court, and remand for resentencing.

BACKGROUND

On January 26, 1988, as the result of an undercover investigation by the Drug Enforcement Administration, Cheng was arrested in Hong Kong for participating in a scheme to import approximately 30 kilograms On June 6, 1988, Cheng executed a preliminary cooperation agreement with the government. The cooperation agreement provided, inter alia, that "Mr. Cheng agrees to be fully debriefed concerning his knowledge of, and participation in, narcotics trafficking activities in the United States, Hong Kong, ... and elsewhere." The cooperation agreement stated in paragraph 9 that

                of heroin into the United States.   Cheng was extradited to the United States on May 11, 1988 for prosecution
                

[the government], prior to sentencing, will advise the sentencing court of the nature and extent of Mr. Cheng's cooperation. Further, at the time of sentencing, if Mr. Cheng has fullfilled the terms of his cooperation, the government will request that the sentencing court depart from the sentencing guidelines.

(emphasis added). Thereafter, on July 21, 1989, Cheng entered into a plea agreement which purported to incorporate the terms and conditions of the June 6 cooperation agreement. The plea agreement provided, inter alia, in paragraph 8 that

[a]fter fully evaluating the nature and extent of the defendant's cooperation, [the government], in its sole discretion, may move, pursuant to [§ 3553(e) ], to request the Court to impose a sentence below the statutory minimum.

(emphasis added).

Subsequently, Cheng entered a plea of guilty to one count of importing more than one kilo of heroin into the United States in violation of 21 U.S.C. § 952(a) and § 960(b)(1)(A). The Probation Office for the Eastern District of New York submitted a presentence report regarding Cheng to the district court on August 24, 1989. The presentence report noted that under § 960(b)(1)(A), which is the sentencing provision for violations of § 952(a), the statutory minimum term of imprisonment is 10 years and the maximum is life. The sentencing guidelines imprisonment range was reported to be 151-188 months (approximately 12 1/2-15 1/2 years), calculated in the presentence report on the basis of a total offense level of 34 and a criminal history category of I. The report also advised the district court that it could consider an upward departure under the sentencing guidelines because of the unusually high purity and quantity of the heroin involved. See U.S.S.G. § 2D1.1.

On January 24, 1991, the government submitted a letter to the district court recommending that the court "downwardly depart from the guidelines set forth in the presentence report when imposing sentence on the defendant Cheng." In the letter, the government informed the district court that Cheng had provided "extensive intelligence information" to the DEA agents regarding other drug traffickers. The government characterized Cheng's cooperation as "truthful, forthright and important" and advised the district court that "the importance and sincerity of Cheng Ah-Kai's cooperation, as well as his evident remorse, justifies a downward departure from the sentencing guidelines." (emphasis added). The letter did not, however, make reference to a departure from the statutory minimum ten-year sentence. Both the government and Cheng agree that the letter constituted the equivalent of a motion under § 5K1.1 and we will treat it as such.

At Cheng's sentencing on February 1, 1991, defense counsel argued for a sentence below the 10-year mandatory statutory minimum. The government objected, contending that a motion for departure from the sentencing guidelines pursuant to § 5K1.1 and a motion for departure from the statutory minimum pursuant to § 3553(e) were separate and distinct, and that the decision whether to make either motion rested solely with the government. The government's position was that the letter was only a motion to depart downward from the sentencing guidelines under § 5K1.1, not a motion to depart from the statutory minimum under § 3553(e). The district court agreed with the government's position, concluding that it did not have the power to depart below the statutory minimum under the circumstances. The district court imposed the statutory minimum sentence of 120 months, a five-year term of

                supervised release, and a $50 special assessment.   Cheng is presently serving his sentence of imprisonment at the Federal Correctional Facility at Bastrop, Texas
                

DISCUSSION

Section 3553(e) is entitled "Limited authority to impose a sentence below a statutory minimum." It provides that

[u]pon motion of 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.

(emphasis added). Section 994, referred to in § 3553(e), was enacted as part of the Sentencing Reform Act of 1984. 28 U.S.C. § 994. This section lists the duties of the Sentencing Commission and empowers the Commission specifically under § 994(n) as follows:

The Commission shall assure that the guidelines reflect the general appropriateness of imposing a lower sentence than would otherwise be imposed, including a sentence that is lower than that established by statute as a minimum sentence, to take into account a defendant's substantial assistance in the investigation or prosecution of another person who has committed an offense.

(emphasis added). It is clear that § 994(n) directs the Sentencing Commission, through the guidelines, to provide for downward departures based on a defendant's "substantial assistance" to the government, including departures below statutory minimum sentences.

The result of § 994(n)'s mandate was § 5K1.1. Section 5K1.1 reads as follows:

[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.

It is noteworthy that § 5K1.1 and § 3553(e) both require a showing of "substantial assistance" before there can be any sentencing departure from the guidelines or the statutory minimum. The two provisions differ, however, in that the language of § 3553(e) refers to a departure from the statutory minimum, whereas § 5K1.1's language refers to a departure below the sentencing guidelines. It is upon this difference that the government bases its argument that the statute and guidelines set up two distinct schemes, each requiring its own separate motion by the prosecution.

We have not previously had the occasion to explore the relationship between § 5K1.1 and § 3553(e). We note, however, that recent case law in other circuits supports Cheng's interpretation that a § 5K1.1 motion by the prosecution allows a sentencing court to depart downward from both sentencing guidelines and statutory minimum sentences. See United States v. Keene, 933 F.2d 711, 714 (9th Cir.1991) (holding on facts similar to the instant case that trial court could depart from statutory minimum following government's § 5K1.1 motion for departure from sentencing guidelines, even though government had not requested a departure below minimum sentence pursuant to § 3553(e)); see also United States v. Wade, 936 F.2d 169, 171 (4th Cir.1991) (noting that "[s]ection 5K1.1 governs all departures from guideline sentencing for substantial assistance, and its scope includes departures from mandatory minimum sentences permitted by 18 U.S.C. § 3553(e)" (citations omitted)). Analyzing the statutory scheme and the powers of the Sentencing Commission conferred by Congress, we likewise hold that a district court has discretion to depart below the statutory minimum sentence following a government motion pursuant to § 5K1.1. In our view, it is not necessary for the government to specify that it is moving under § 3553(e) for departure below the statutory minimum,...