U.S. v. Doe

• Decision Date: 24 February 2005
• Docket Number: No. 03-3255.,03-3255.
• Citation: 398 F.3d 1254
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. John DOE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

398 F.3d 1254

UNITED STATES of America, Plaintiff-Appellee, v. John DOE, Defendant-Appellant.

No. 03-3255.

United States Court of Appeals, Tenth Circuit.

February 24, 2005.

Cyd Gilman, Assistant Federal Public Defender for the District of Kansas, Wichita, KS, for Defendant-Appellant.

Brent I. Anderson, Assistant United States Attorney (Eric F. Melgren, United States Attorney, with him on the briefs), Wichita, KS, for Plaintiff-Appellee.

Before MURPHY, McWILLIAMS, and TYMKOVICH, Circuit Judges.

MURPHY, Circuit Judge.

I. INTRODUCTION¹

After John Doe [hereinafter "Appellant"] pleaded guilty to unlawful use of a communication facility, in violation of 21 U.S.C. § 843(b), and possession of a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c), the district court sentenced him to a term of forty-eight months' imprisonment on Count 1 and a term of 188 months' imprisonment on Count 2, to be served consecutively. The 188-month sentence represented an upward departure from the applicable Sentencing Guidelines range² of sixty months. Appellant now appeals his sentence, contending that the district court erred in refusing to consider the assistance Appellant provided to the government when the court decided to depart upward and in calculating the degree of departure. Exercising jurisdiction pursuant to 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291, we reverse and remand for resentencing.

II. BACKGROUND

In November 2002 Appellant was charged with a variety of offenses including felon in possession of a firearm, knowingly carrying a firearm during and in relation to a drug trafficking crime, possession of marijuana, felon in possession of ammunition, possession of both cocaine and crack cocaine, and possession of both cocaine and crack cocaine with intent to distribute. A superseding indictment was subsequently filed adding a count of possession of cocaine base with intent to distribute and a count of possession of counterfeit money. Upon motion by the government, however, the superseding indictment was dismissed without prejudice. Ultimately a two-count superseding information was filed on April 18, 2003, charging Appellant with unlawful use of a communication facility in connection with the commission of a felony under the Controlled Substances Act, in violation of 21 U.S.C. § 843(b) (Count 1), and possession of a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c) (Count 2). On April 21, 2003 Appellant pleaded guilty to both counts charged in the superseding information.

On July 16, 2003, the district court notified the parties of its intent to depart upward from the Guidelines range applicable to Count 2 from a sentence of sixty months to a sentence of between 188 and 235 months. Both parties responded by asking the court not to depart upward because of Appellant's cooperation with the government.³ At the sentencing hearing, defense counsel urged the court to consider Appellant's cooperation with the government, arguing that the court should not depart upward or should at least depart upward to a lesser degree based on Appellant's cooperation.

The district court ultimately departed upward to a sentence of 188 months on the firearm count to be served consecutive to the forty-eight-month sentence for Count 1, for a total sentence of 236 months. The district court concluded that pursuant to § 4A1.3 of the Guidelines, the nature of the offenses giving rise to Appellant's criminal history category of VI significantly underrepresented the seriousness of his criminal history. The court then determined that Appellant's "criminal history, high likelihood of recidivism, coupled with his increasing involvement with firearms, remove defendant from the heartland and warrant an upward departure." In arriving at the level of the upward departure, the court analogized Appellant's status to that of a career offender by reasoning that if Appellant had been convicted of any of the controlled substance counts that were dismissed pursuant to the government's motion, he would have been sentenced as a career offender. The court calculated a base offense level of thirty-four based on the statutory maximum sentences on the dismissed drug counts and then decreased the offense level for acceptance of responsibility, arriving at an adjusted base offense level of thirty-one. The court determined that the appropriate Guideline range with the upward departure was 188-235 months based on Appellant's criminal history category VI status and the adjusted base offense level of thirty-one.⁴

Appellant filed a timely notice of appeal and contends that the district court erred in refusing to consider Appellant's cooperation with the government in determining his sentence.

III. DISCUSSION

When reviewing a district court's application of the Sentencing Guidelines, we review legal questions de novo and we review any factual findings for clear error, "giving due deference to the district court's application of the guidelines to the facts."⁵ United States v. Tsosie, 376 F.3d 1210, 1217-18 (10th Cir.2004) (quotation omitted). Appellant argues that because the district court did not consider Appellant's cooperation with the government: (1) the upward departure is inconsistent with the factors set forth in 18 U.S.C. § 3553(a)(2); (2) the departure is not justified by the facts of the case; and (3) the amount of the departure is unreasonable.⁶ The government asserts that the district court properly considered Appellant's assistance and appropriately determined that an upward departure advances the objectives of 18 U.S.C. § 3553(a)(2).

The record shows that the district court failed to fully consider Appellant's cooperation with the government when making its sentencing decision. No mention of Appellant's assistance to the government was made in the presentence report. The district court's letter notifying the parties of its intent to depart upward includes no reference to Appellant's assistance because the district court was not aware of Appellant's cooperation with the government when it sent the letter. In response to the district court's letter, both parties brought Appellant's cooperation to the attention of the court. Defense counsel raised the issue of Appellant's assistance at the sentencing hearing and characterized Appellant's assistance as "significant." The court interrupted counsel saying, "Not significant enough for [the government] to file a Section 5 motion." Defense counsel then argued that the district court should either not depart upward or should take into account Appellant's assistance when determining the degree of departure, particularly considering the court's concern with the likelihood of Appellant's recidivism. At the conclusion of the parties' arguments, the court stated:

[S]ince I have the responsibility in this case to follow the guidelines and follow the applicable law, that's what should have been taken into consideration at the time the decision was made to dismiss the original indictment in this case and substitute this indictment for a lesser offense.

If the Government is going to become involved, not just in plea negotiations, but in setting sentences, then the Government also has to start taking into consideration the factors that are set forth in 18 U.S.C. Section 3553; and when these factors are taken into consideration, there's no question that a 108 month sentence is not appropriate for this Defendant....

[Appellant] is an intelligent person; but instead of using his intelligence to lead a law abiding life, which he had the opportunity to do, it's undisputed that for years and years and years he has been in the revolving door of prison, parole, violation, parole, violation, use of drugs, burglaries, which are recognized to be crimes of violence; weapons offenses. I have a responsibility, and it's spelled out here in this statute, to not only come up with a sentence that the parties would like for me to impose; but one that reflects the seriousness of the offense, to promote respect to the law and to provide just punishment. [Appellant] doesn't respect the law. He violates the law again and again and again. To afford adequate deterrence for criminal conduct: He's been in the court system time and time again and he's not been deterred from criminal conduct.

Protect the public from further crimes of the Defendant: Now, I know that [Appellant] sitting here today would never think of him doing this, but I see a man who one day may end up in somebody's house in a burglary, either high on drugs or needing drugs, armed with a firearm, and someone is killed. And I'm not going to be responsible for that.

And then to provide the Defendant with needed educational, vocational, medical care or other correctional treatment: The only thing I can think of is this Defendant needs some kind of treatment to get him off of drugs. But I've about given up on that. People have to get off of drugs because they want to get off drugs, not because somebody else tells them to get off drugs.

These are the things that the Government should have considered before it decided to dismiss that indictment, in addition to these other factors. Because if the other factors aren't sufficient to justify a Section 5K motion, then, in my judgment, they don't have much bearing on what I should be doing in terms of — they don't trump the factors set forth in the statute. That's my point.

(emphasis added). Subsequent to its oral pronouncement of sentencing, the court stated in its memorandum decision that:

18 U.S.C. § 3553(a) sets out the factors which must be considered in imposing a sentence. The accepted way for a prosecutor to reward a defendant's cooperation or assistance is through a section 5K1.1 motion and, in this court's opinion, that is the course which should have been followed in this case. Defendant may have helped the government but when defendant's conduct and...