U.S. v. Faulks

• Decision Date: 29 April 1998
• Docket Number: No. 96-2056,96-2056
• Citation: 143 F.3d 133
• Parties: UNITED STATES of America v. Juan FAULKS, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

Page 133

143 F.3d 133

UNITED STATES of America v. Juan FAULKS, Appellant.

No. 96-2056.

United States Court of Appeals, Third Circuit.

Argued Oct. 17, 1997.

Decided April 29, 1998.

Michael R. Stiles, United States Attorney, Walter S. Batty, Jr., Assistant U.S. Attorney, Wendy A. Kelly (Argued), Assistant U.S. Attorney, Office of United States Attorney, Philadelphia, PA, for Appellee.

Peter Goldberger (Argued), Pamela A. Wilk, James H. Feldman, Jr., Ardmore, PA, for Appellant.

Before: STAPLETON, ALITO and SEITZ, Circuit Judges.

OPINION OF THE COURT

STAPLETON, Circuit Judge:

Defendant Juan Faulks entered into a plea agreement with the government which required him to cooperate in the investigation of individuals participating in the distribution of narcotics. In return for Faulks' assistance, the government agreed to file a motion pursuant to U.S.S.G. § 5K1.1 requesting a downward departure from the Sentencing Guidelines. Faulks asserts that the district court misapplied the Sentencing Guidelines because it granted the government's motion but, nevertheless, imposed a sentence within the applicable guideline range. Faulks also contends that the district court erred in declining to depart pursuant to U.S.S.G. § 5K2.0 based on his agreement not to oppose certain administrative forfeitures. Finally, Faulks submits that the district court erred in finding that the controlled substance he distributed was crack cocaine.

We will remand for further sentencing proceedings.

I.

On two occasions in 1996, Faulks sold approximately eleven and one half ounces of cocaine base to a confidential informant. He was later arrested and charged with two counts of distributing a "substance containing cocaine base (crack)" in violation of 21 U.S.C. § 841(a)(1), two counts of money laundering in violation of 18 U.S.C. § 1956, one count of criminal forfeiture of real property pursuant to 18 U.S.C. § 982, and four counts of criminal forfeiture of personal property pursuant to 21 U.S.C. § 853. App. at 8-9.

Faulks entered into a plea agreement which required him to plead guilty to the counts of cocaine distribution, money laundering and criminal forfeiture of real property. The government agreed to dismiss the remaining counts of criminal forfeiture in return for Faulks' acquiescence in the administrative forfeiture of the personal property described in the indictment. It also committed itself to:

[m]ake a motion to allow the Court to depart from the Sentencing Guidelines pursuant to Sentencing Guidelines § 5K1.1, and to impose a sentence below any mandatory minimum term of imprisonment pursuant to 18 U.S.C. § 3553(e), if the government, in its sole discretion, determines that the defendant has provided substantial assistance in the investigation or prosecution of another person who has committed an offense.

App. at 36-37.

When Faulks entered his guilty pleas, the court asked him at the outset to identify the charges to which he wished to plead guilty. He responded, "Two counts of distribution of crack cocaine, and forfeiture of my home, and to money laundering." App. at 45. Thereafter, the government made a proffer of evidence during which the prosecutor consistently and on six occasions referred to the substance distributed by Faulks as "crack cocaine." She reported during the proffer that the substance purchased by the informant on both occasions was tested by the DEA lab and determined to be "crack cocaine base." App. at 49-50. After the proffer, with one exception not here relevant, both Faulks and his counsel expressly confirmed that the government's version of the facts was substantially correct.

The Presentence Investigation Report ("PSI") calculated the guideline range to be 87 to 108 months. This calculation assumed that the substance distributed was crack cocaine and that Faulks was entitled to escape the ten-year mandatory minimum provisions of 21 U.S.C. § 841(b)(1)(A) under the safety valve provisions of U.S.S.G. § 5C1.2. Neither side objected to the calculation of the guideline range in the PSI.

Prior to the sentencing hearing, the government filed a "Motion for Downward Sentencing Departure Pursuant to Section 5K1.1." App. at 54. This motion characterizes the government's obligation under the plea agreement as one "to permit the Court to depart downward from the applicable Sentencing Guidelines range." Id. The motion represented to the court that Faulks had provided the government with substantial assistance in the prosecution of other persons.

At the sentencing hearing, Faulks' counsel argued for a downward departure based on his agreement not to contest the administrative forfeitures. He insisted that this was meaningful because "[s]ome of these items, for example, diamond rings and such, were purchased before this indictment occurred or before his drug activity occurred." App. at 58-59. Although the prosecutor acknowledged that Faulks had "consented to the forfeiture of these items administratively," she, inexplicably, agreed with the court when it advised Faulks that he could still contest the forfeitures if he chose to do so. App. at 59. The court did not explain the basis for this advice. It denied the requested downward departure on the ground that Faulks could still contest the forfeitures and therefore had given up nothing.

Thereafter, the prosecutor called upon the court to grant the § 5K1.1 motion. Almost immediately thereafter she was asked to advise the court what sentence the government was recommending. She replied that the government was "recommending a minimal departure ... in the upper range of the guideline," because Faulks had opportunities to provide "significant information" but chose not to do so. App. at 66, 71. Faulks' counsel objected and called upon the court "to depart from the 87 months, a downward departure, because then the 5K1.1 is meaningful." App. at 70. The district court sentenced Faulks to 95 months of imprisonment. Shortly thereafter, it entered an order reflecting that it had granted the government's § 5K1.1 motion to depart. In its "Statement of Reasons" for its judgment, the court checked a box indicating that its "sentence departs from the guideline range upon motion of the government, as a result of defendant's substantial assistance," but then inserted by hand, "However, sentence is within guideline range." Addendum to Appellant's Brief.

II.

As Faulks stresses, there is an inconsistency between what the district court said and what it did. The departures provided for in Part K of the Guidelines Manual are departures from "the range established by the applicable guideline." E.g. U.S.S.G. § 5K2.0 Grounds for Departure (policy Statement). Thus, when U.S.S.G. § 5K1.1 provides that "[u]pon motion of the government stating that the defendant has provided substantial assistance ... the court may depart from the guidelines," it is authorizing the court to impose a sentence less than the range of sentences to which the Guidelines would otherwise limit the court's discretion. As the government acknowledged in its § 5K1.1 motion, a motion under that section is, accordingly, intended "to permit the Court to depart downward from the applicable Sentencing Guidelines range." App. at 54. This fact is also reflected in the printed judgment form utilized by the district court which characterizes a departure as a "sentence [that] departs from the guideline range." Addendum to Appellant's Brief.

It follows that when someone is promised the possibility of "a departure from the guidelines" under U.S.S.G. § 5K1.1, he or she may reasonably expect to be afforded the possibility of a sentence below the guideline range. It is thus important that United States Attorneys and district courts not use the term "departure" loosely. We are not confronted, however, with a claim that Faulks was misled by anyone to his detriment. He does not claim, for example, that the government failed to file a motion that he reasonably believed it would file as a result of the plea agreement. ¹

What we are confronted with is an argument that a sentencing judge who has granted a § 5K1.1 motion is powerless to impose a sentence within the guideline range. We conclude that this claim should be rejected where, as here, the record provides assurance that the sentencing judge recognized his authority to depart below the guideline range and there is no ambiguity about the intended sentence.

The initial issue in our analysis is whether a district court, in the absence of a § 5K1.1 motion, may consider the defendant's assistance to the government in deciding where to sentence within the guideline range. We believe the answer must be "yes." Congress directed the Commission to "assure that the guidelines reflect the general appropriateness of imposing a lower sentence than would otherwise be imposed ... to take into account a defendant's substantial assistance in the investigation or prosecution of another person who has committed an offense." 28 U.S.C. § 994(n). While this directive has been partially implemented by the § 5K1.1 departure authority, we are confident that neither Congress nor the Commission considered what was "generally appropriate" to be inappropriate when a sentencing judge is exercising discretion within the guideline range. To the contrary, we find consideration of substantial assistance for this purpose entirely consistent with the authority bestowed on sentencing judges. As the Second Circuit Court of Appeals observed in United States v. Huerta, 878 F.2d 89, 93 (2d Cir.1989):

[The authorizing statute and the Guidelines do] not foreclose a sentencing court from considering a defendant's cooperation as a mitigating factor in deciding what sentence within the applicable range designated by the Guidelines is appropriate, whether or not the government agrees.... Under the Guidelines, courts may weigh a wide array of factors, 18 U.S.C. § 3661, including "the nature and circumstances of the offense...