U.S. v. Chotas, No. 89-8427

CourtUnited States Courts of Appeals. United States Court of Appeals (11th Circuit)
Writing for the CourtBefore CLARK and COX, Circuit Judges, and TUTTLE; PER CURIAM; CLARK
Citation913 F.2d 897
PartiesUNITED STATES of America, Plaintiff-Appellee, Cross-Appellant, v. Anthony CHOTAS, Defendant-Appellant, Cross-Appellee. Non-Argument Calendar.
Decision Date02 October 1990
Docket NumberNo. 89-8427

Page 897

913 F.2d 897
UNITED STATES of America, Plaintiff-Appellee, Cross-Appellant,
v.
Anthony CHOTAS, Defendant-Appellant, Cross-Appellee.
No. 89-8427
Non-Argument Calendar.
United States Court of Appeals,
Eleventh Circuit.
Oct. 2, 1990.

Rise Weathersby, Federal Defender Program, Inc., Atlanta, Ga., for defendant-appellant, cross-appellee.

Amy D. Levin, Atlanta, Ga., for plaintiff-appellee, cross-appellant.

Appeals from the United States District Court for the Northern District of Georgia.

Before CLARK and COX, Circuit Judges, and TUTTLE, Senior Circuit Judge.

PER CURIAM:

Appellant Anthony Chotas was indicted on one count of conspiracy to possess with the intent to distribute cocaine in violation of 21 U.S.C.A. Sec. 846 and one count of aiding and abetting the possession with intent to distribute cocaine in violation of 21 U.S.C.A. Sec. 841(a)(1) and 18 U.S.C.A. Sec. 2. He was convicted on both counts after a jury trial. At Chotas' sentencing hearing, the district court determined that the applicable offense level under the Sentencing Guidelines was a level 22, thus exposing Chotas to 41 to 51 months of imprisonment. Despite the absence of a motion from the government--indeed, over the government's objections--the district court further determined that Chotas was entitled to a downward departure from this guideline range pursuant to Sentencing Guidelines Sec. 5K1.1 policy statement (Oct. 1987) (hereinafter Sec. 5K1.1) because of his substantial

Page 898

assistance to the government in the prosecution of his co-defendant. Chotas appeals on the ground that the evidence presented at trial was insufficient to support his conviction. The government cross-appeals, arguing that the district court misapplied the sentencing guidelines in departing downward under Sec. 5K1.1 in the absence of a motion by the government advocating such a departure. Alternatively, the government argues that even if the district court did not misapply the guidelines in departing downward under Sec. 5K1.1, such downward departure was not warranted by the facts of this case.

A. Sufficiency of the Evidence

Chotas argues that there was insufficient evidence to sustain his conviction for conspiracy and for aiding and abetting the possession with intent to distribute cocaine. In reviewing a jury verdict that is challenged as insufficiently supported by the evidence, we view the evidence in the light most favorable to the government. See Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942); United States v. Miller, 693 F.2d 1051, 1053 (11th Cir.1982). The verdict will be upheld if "a reasonable trier of fact could find the evidence establishes guilt beyond a reasonable doubt." United States v. Bell, 678 F.2d 547, 549 (5th Cir. Unit B 1982) (en banc ), aff'd on other grounds, 462 U.S. 356, 103 S.Ct. 2398, 76 L.Ed.2d 638 (1983). Having reviewed the record, and viewing the evidence in the light most favorable to the government, we conclude that a reasonable jury could find that the evidence established guilt beyond a reasonable doubt. Chotas' conviction is thus affirmed.

B. Departure under Sec. 5K1.1

Section 5K1.1 provides in relevant part: "Upon motion of the government stating that the defendant has made a good faith effort to provide substantial assistance in the investigation or prosecution of another person who has committed an offense, the court may depart from the guidelines." Sec. 5K1.1 (emphasis added). 1 This case presents an issue recently decided by this court in United States v. Alamin, 895 F.2d 1335 (11th Cir.1990): is a governmental motion advocating departure from the applicable guideline range a prerequisite for departure under Sec. 5K1.1? Alamin answered this question in the affirmative. "[W]ithout a motion by the government requesting a departure, the district court may not depart from the guidelines on the ground of substantial assistance." Id. at 1337.

Chotas presents arguments contrary to the holding in Alamin. These arguments will be discussed briefly. Chotas primarily argues that Sec. 5K1.1 is a policy statement only, which should be considered by the sentencing court, but which is not binding upon the sentencing court. Citing the Seventh Circuit's recent decision in United States v. Franz, 886 F.2d 973 (7th Cir.1989), Chotas also argues that we lack jurisdiction to determine whether his sentence is inconsistent with this policy statement.

We initially address Chotas' argument that we lack jurisdiction to review this case. As we recently established in United States v. Fossett, 881 F.2d 976 (11th Cir.1989), our jurisdiction to review the sentence imposed by the district court derives from 28 U.S.C. Sec. 1291 (1982). 2 The Sentencing Reform Act of 1984, Pub.L. No. 98-473, Sec. 211, 98 Stat. 1987 (codified, as

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amended, in scattered sections of 18 and 28 U.S.C.A.) ("Sentencing Reform Act") does not alter this proposition. Fossett, 881 F.2d at 979. Rather, section 213 of the Sentencing Reform Act (codified, as amended at 18 U.S.C.A. Sec. 3742 (West 1985 & Supp.1989) (hereinafter Sec. 3742), 3 which discusses appellate review of a sentence, "defines the claims that the court of appeals may hear in reviewing an appeal." Fossett, 881 F.2d at 979. We further established in Fossett that this provision of the Sentencing Reform Act does not allow a defendant to challenge on appeal a refusal by the district court to make a downward departure from the guideline range. However, a challenge not to the merits of a district court's refusal to depart but to the district court's decision that it lacked the statutory authority to depart from the sentencing guideline range presents a cognizable claim on appeal under Sec. 3742(a)(1), (2). Fossett, 881 F.2d at 979. It logically follows from this latter proposition that a challenge to the district court's conclusion that it had the authority to depart when in fact it did not also presents a cognizable claim on appeal. See also United States v. Scroggins, 880 F.2d 1204, 1207 n. 5 (11th Cir.1989) (stating that a misinterpretation of the guidelines in fashioning the defendant's sentence constitutes an incorrect application of the guidelines under Sec. 3742(a)(2)). Accordingly, the government's claim that the district court lacked the authority to depart under Sec. 5K1.1 in the absence of a governmental motion presents a cognizable claim on appeal under Sec. 3742(b)(2) as a misapplication of the sentencing guidelines.

Chotas relies on the Seventh Circuit's decision in United States v. Franz, 886 F.2d 973 (7th Cir.1989), in asserting that we lack jurisdiction to review his sentence. In Franz, the Seventh Circuit determined that it lacked the appellate jurisdiction to review a district court's refusal to depart downward from the applicable guideline range. While the Seventh Circuit thus reached the same result we reached in Fossett--that the defendant cannot review on appeal a district judge's refusal to make a downward departure from the guideline range--it disagreed with our reasoning. The court pronounced Sec. 3742 a jurisdictional statute, establishing "those cases in which the defendant or the government is authorized to appeal." Id. at 981. It further determined that departure-related decisions could not be challenged as "misapplications of the sentencing guidelines" under Sec. 3742(a)(2). As the Franz court noted, this latter determination also conflicts with our holding in Fossett that challenges to the sentencing court's refusal to depart when the sentencing court believed it lacked the statutory authority to depart could constitute a misapplication of the sentencing guidelines. We decline to undertake an in-depth analysis of our disagreement with the Seventh Circuit, particularly in view of the fact the present case is readily distinguishable from

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Franz in that it involves not a refusal to depart from the guidelines but the court's departure from the guidelines. Suffice it to say that our decision in Fossett remains the controlling law in this jurisdiction and in view of it, Chotas' argument that the Franz decision suggests we lack jurisdiction to review his sentence is without merit.

Having determined that we may properly review Chotas' sentence, we next note the applicable standard of review of this issue. This question of whether a district court may depart downward from the applicable guideline range under Sec. 5K1.1 in the absence of a governmental motion is a pure question of law subject to our de novo review. United States v. Scroggins, 880 F.2d 1204, 1206 n. 5 (11th Cir.1989). Because we determine that the district court erred as a matter of law in departing downward under Sec. 5K1.1 absent a governmental motion, we need not consider whether the district court's factual finding that Chotas provided substantial assistance in his co-defendant's prosecution is clearly erroneous. See Sec. 3742(e).

We now turn to the merits of this issue. 18 U.S.C.A. Sec. 3553(b) (West Supp.1989) sets forth the procedure for imposing a sentence below the guideline range. The district court is instructed to impose a sentence of the type and within the range of the guidelines "unless the court finds there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence different from that described." Id. The Commission's guidelines, policy statements and official commentary are the only sources to be considered in determining whether the Commission took into account a certain circumstance. Id. Since section 3553(b) constitutes the statutory authority for departure from the guidelines on the basis of mitigating or aggravating circumstances, a district court's departure must be in accordance with this provision. If the Commission did not adequately consider a certain circumstance, then the...

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22 practice notes
  • U.S. v. Hernandez, No. 89-3395
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • January 30, 1991
    ...may only move the court to adjust a sentence, a decision that remains with the trial court). See also United States v. Chotas, 913 F.2d 897, 901 (11th Cir.1990) (quoting with approval decisions rejecting constitutional challenges to section 5K1.1); United States v. Castellanos, 904 F.2d 149......
  • U.S. v. Doe, No. 90-3027
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • May 24, 1991
    ...of law" or "imposed as a result of an incorrect application of the sentencing guidelines"). See United States v. Chotas, 913 F.2d 897, 899 (11th Cir.1990) (holding that "government's claim that the district court lacked the authority to depart under Sec. 5K1.1 in the abs......
  • U.S. v. Smith, No. 90-3606
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • January 14, 1992
    ...States v. Bruno, 897 F.2d 691, 695 (3d Cir.1990), United States v. Goroza, 941 F.2d 905, 908 (9th Cir.1991), and United States v. Chotas, 913 F.2d 897, 900 (11th Cir.1990) Although the use of a policy statement may imply tentative rather than definitive resolution of a question, we believe ......
  • U.S. v. Kelley, Nos. 90-1027
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • February 5, 1992
    ...v. Donatiu, 922 F.2d 1331, 1334-35 (7th Cir.1991); United States v. Vargas, 925 F.2d 1260, 1267 (10th Cir.1991); United States v. Chotas, 913 F.2d 897, 900 (11th Cir.1990), cert. denied, --- U.S. ----, 111 S.Ct. 1421, 113 L.Ed.2d 473 (1991); United States v. Doe, 934 F.2d at 361. However, t......
  • Request a trial to view additional results
22 cases
  • U.S. v. Hernandez, No. 89-3395
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • January 30, 1991
    ...may only move the court to adjust a sentence, a decision that remains with the trial court). See also United States v. Chotas, 913 F.2d 897, 901 (11th Cir.1990) (quoting with approval decisions rejecting constitutional challenges to section 5K1.1); United States v. Castellanos, 904 F.2d 149......
  • U.S. v. Doe, No. 90-3027
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • May 24, 1991
    ...in violation of law" or "imposed as a result of an incorrect application of the sentencing guidelines"). See United States v. Chotas, 913 F.2d 897, 899 (11th Cir.1990) (holding that "government's claim that the district court lacked the authority to depart under Sec. 5K1.1 in the absence of......
  • U.S. v. Smith, No. 90-3606
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • January 14, 1992
    ...States v. Bruno, 897 F.2d 691, 695 (3d Cir.1990), United States v. Goroza, 941 F.2d 905, 908 (9th Cir.1991), and United States v. Chotas, 913 F.2d 897, 900 (11th Cir.1990) Although the use of a policy statement may imply tentative rather than definitive resolution of a question, we believe ......
  • U.S. v. Kelley, Nos. 90-1027
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • February 5, 1992
    ...v. Donatiu, 922 F.2d 1331, 1334-35 (7th Cir.1991); United States v. Vargas, 925 F.2d 1260, 1267 (10th Cir.1991); United States v. Chotas, 913 F.2d 897, 900 (11th Cir.1990), cert. denied, --- U.S. ----, 111 S.Ct. 1421, 113 L.Ed.2d 473 (1991); United States v. Doe, 934 F.2d at 361. However, t......
  • Request a trial to view additional results

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