U.S. v. Coleman, 89-1704

• Decision Date: 07 February 1990
• Docket Number: No. 89-1704,89-1704
• Parties: UNITED STATES of America, Appellant, v. Venita J. COLEMAN, Appellee. UNITED STATES of America, Appellant, v. Deetra J. KINDLE, Appellee. UNITED STATES of America, Appellant, v. Ella Simone TERRILL, Appellee. UNITED STATES of America, Appellant, v. Elana Roxanne TERRILL, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 501

895 F.2d 501

UNITED STATES of America, Appellant, v. Venita J. COLEMAN, Appellee.

UNITED STATES of America, Appellant, v. Deetra J. KINDLE, Appellee.

UNITED STATES of America, Appellant, v. Ella Simone TERRILL, Appellee.

UNITED STATES of America, Appellant, v. Elana Roxanne TERRILL, Appellee.

No. 89-1704.

United States Court of Appeals,

Eighth Circuit.

Submitted Dec. 15, 1989.

Decided Feb. 7, 1990.

Robert J. Erickson, Washington, D.C., for U.S.

Claudia York, Kansas City, Mo., for Coleman.

Leonard Meyer, Kansas City, Mo., for D. Kindle.

James B. Jackson, Kansas City, Mo., for Ella Terrill.

Kevin Locke, Kansas City, Mo., for Elana Terrill.

Before ARNOLD, FAGG, and MAGILL, Circuit Judges.

MAGILL, Circuit Judge.

Venita Coleman, Deetra Kindle, Ella Terrill, and Elana Terrill (appellees) were each charged with one count of conspiracy and at least one count of distribution of cocaine within one thousand feet of a schoolyard in violation of 21 U.S.C. Sec. 845a(a). In exchange for their promises of future cooperation, the prosecutor agreed to drop all counts except for at least one count against each appellee of distributing cocaine within one thousand feet of a school. Although the government agreed to inform the district court of appellees' cooperation, it consistently refused to file a motion pursuant to 18 U.S.C. Sec. 3553(e) asking for a departure below the mandatory one-year minimum sentence provided for by 18 U.S.C. Sec. 845. Appellees moved for an order directing the government to file a motion. Because the district court found the letters detailing appellees' cooperation to be the functional equivalent of a Sec. 3553(e) motion, it imposed sentences below the minimum ¹ without ordering the government to file a motion.

The issues to be decided on appeal are (1) whether a government motion under Sec. 3553(e) is specifically required before the court may depart from the mandatory minimum sentence imposed by statute; (2) if a motion is not required, whether the cooperation letters provided a sufficient basis for the court to depart; and (3) if a motion is required, whether the plea agreements obligated the government to file a Sec. 3553(e) motion. Because the plea agreements clearly did not obligate the government to file a Sec. 3553(e) motion and the district court departed without a motion by the government, we reverse and remand for further proceedings consistent with this opinion.

I.

The government charged appellees with one count of conspiracy and at least one count of distribution of cocaine within one thousand feet of a schoolyard. Appellees thereafter entered into plea negotiations with the government.

During the negotiations, various defense counsel asked the government to commit itself to filing a Sec. 3553(e) motion if appellees' cooperation proved to be substantial. The counsel also sought to place a provision to that effect into the plea agreements. The government categorically refused to commit itself to file such a motion on behalf of any of the appellees by placing such a provision into the plea agreements. Furthermore, counsel for Coleman was advised that "the government would agree only to advise the court of the nature, extent and importance of the cooperation provided by each of the female defendants." United States v. Coleman, 707 F.Supp. 1101, 1105 (W.D.Mo.1989). The government stated, however, that it would not file a Sec. 3553(e) motion no matter what the level of an appellee's cooperation. Id. Counsel for Kindle was also advised that the government would only inform the court of her cooperation. Id. Counsel for Ella Terrill was advised that the filing of a Sec. 3553(e) motion would be considered, depending upon her cooperation. Although refusing to commit itself to filing the motion, the government did agree to inform the court of her cooperation. Id. Finally, counsel for Elana Terrill was advised of an alleged policy against filing Sec. 3553(e) motions which would preclude the government from filing a motion no matter how substantial her cooperation. Nevertheless, the government indicated it would advise the sentencing court of her cooperation. Id. at 1105-06.

These negotiations culminated in the execution of several plea agreements whereby all charges against appellees were dismissed except for at least one count against each of the four appellees for distributing cocaine within one thousand feet of a schoolyard. Appellees agreed to plead guilty to this charge. The agreements ² further provided in part that:

The United States will advise the sentencing court of the nature, extent, and importance of the cooperation provided by the defendant. It is understood by the parties that the United States Attorney is not precluded from allocuting or recommending any specific sentence to be imposed as provided by Rule 32, Federal Rules of Criminal Procedure.

Plea Agreement, p 9. Paragraph 2 stated that each appellee's "total potential criminal exposure as a result of her plea" included incarceration for "not less than one (1) year, not more than forty (40) years." ³ Finally, paragraph 12 stated that the plea agreement constituted "the complete agreement between the parties and [that] no other promises, express or implied, [were] made by the United States or its representatives to the defendant[s] or to the [defendants'] attorney[s]."

After entering their pleas, each of the appellees cooperated with the government by providing information regarding illegal drug activity and by testifying against a drug leader at his trial. The government subsequently informed the sentencing court by letter of the nature, extent and importance of each appellee's cooperation. Defense counsel thereafter again urged the government to file a Sec. 3553(e) motion. The government again categorically refused to file a motion pursuant to Sec. 3553(e) on behalf of appellees. However, the government informed counsel for Kindle that it had not yet decided whether to file a Sentencing Guideline, Sec. 5K1.1 motion on her behalf. The government never filed either a Sec. 5K1.1 or Sec. 3553(e) motion.

Appellees moved the district court for an order directing the government to file a Sec. 3553(e) motion. The court found the plea agreements to be ambiguous and concluded that the government's own construction thereof "obviates the necessity of entering any order directing the government to file a set of Section 3553(e) motions. ... [W]e treat [the government's cooperation] letters ... as the functional equivalent of Section 3553(e) motions filed in regard to each of the defendants." United States v. Coleman, 707 F.Supp. at 1119. The court thereafter imposed sentences below the statutory minimum. From this order, the government appeals.

II.

We review the sentences imposed by the district court pursuant to the Sentencing Guidelines under 18 U.S.C. Sec. 3742. Therefore, we may reverse if the sentences were imposed in violation of law. Id. Sec. 3742(e)(1). ⁴ In conducting our inquiry, however, we must "give due regard to the opportunity of the district court to judge the credibility of the witnesses, and shall accept the findings of fact of the district court unless clearly erroneous." Id. Sec. 3742(e).

A.

Appellees contend that the district court properly departed from the mandatory one year minimum sentence of Sec. 845a(a) even though the government had not filed a Sec. 3553(e) motion. The district court's decision was based on its conclusion that the cooperation letters filed by the government were the functional equivalent of a Sec. 3553(e) motion. As a result, the district court concluded that a Sec. 3553(e) motion was not necessary for it to depart from the mandatory minimum sentence. Section 3553(e) provides that:

Upon 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....

18 U.S.C. Sec. 3553(e) (emphasis added).

Section 3553(e)'s counterpart under the guidelines is Sec. 5K1.1. That section provides in part that "[u]pon 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." Sentencing Guidelines, Sec. 5K1.1 (Nov. 1, 1987) (emphasis added). Although the two sections can have different effects, ⁵ their requirement of a government motion before departure in recognition of a defendant's substantial assistance is identical; the requirement is clear and unambiguous. Therefore, we construe Sec. 3553(e)'s motion requirement exactly as we construe Sec. 5K1.1's motion requirement. See United States v. Francois, 889 F.2d 1341, 1345 (4th Cir.1989).

In an opinion filed late last year, this court held that absent a Sec. 5K1.1 motion by the government, the plain language of Sec. 5K1.1 prohibits a trial court from departing from the guideline range. ⁶ United States v. Smitherman, 889 F.2d 189, 191 (8th Cir.1989), cert denied, --- U.S. ----, 110 S.Ct. 1493, --- L.Ed.2d ---- (1990); see also United States v. Francois, 889 F.2d at 1344 (language of Sec. 5K1.1 is clear and unequivocal; court cannot even consider departure until government files a Sec. 5K1.1 motion); cf. United States v. Grant, 886 F.2d 1513, 1513-14 (8th Cir.1989) (section 5K1.1's government motion requirement upheld on constitutional grounds). Therefore, we hold that in order for a court to depart based upon substantial assistance under Sec. 3553(e) from a mandatory minimum sentence, the government must first file a motion under Sec. 3553(e). See United States v. Huerta, 878 F.2d 89, 91 (2d Cir.1989) (Secs. 3553(e) and 5K...