U.S. v. Ivester

• Citation: 75 F.3d 182
• Decision Date: 15 February 1996
• Docket Number: No. 94-5866,94-5866
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Sidney Wayne IVESTER, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

Page 182

75 F.3d 182

UNITED STATES of America, Plaintiff-Appellee, v. Sidney Wayne IVESTER, Defendant-Appellant.

No. 94-5866.

United States Court of Appeals, Fourth Circuit.

Argued Nov. 3, 1995.

Decided Feb. 15, 1996.

Appeal from the United States District Court for the Middle District of North Carolina, at Winston-Salem; William L. Osteen, Sr., District Judge. (CR-94-138).

ARGUED: Charles Jackson Alexander, II, Morrow, Alexander, Tash & Long, Winston-Salem, North Carolina, for Appellant. David Bernard Smith, Assistant United States Attorney/Senior Litigation Counsel, Greensboro, North Carolina, for Appellee. ON BRIEF: Walter C. Holton, Jr., United States Attorney, Greensboro, North Carolina, for Appellee.

Before RUSSELL and HALL, Circuit Judges, and MICHAEL, Senior United States District Judge for the Western District of Virginia, sitting by designation.

Affirmed by published opinion. Judge RUSSELL wrote the majority opinion, in which Senior Judge MICHAEL joined. Judge HALL wrote a dissenting opinion.

OPINION

DONALD RUSSELL, Circuit Judge:

Sidney Wayne Ivester appeals the district court's order sentencing him to a statutorily-mandated term of five years imprisonment for his role in a conspiracy to manufacture marijuana. Ivester contends the district court erred in failing to accord him a downward departure from the statutorily-mandated minimum sentence in accordance with a recent amendment to the sentencing statute, 18 U.S.C. § 3553. For the following reasons, we affirm Ivester's sentence.

I.

On September 13, 1994, Congress enacted the Violent Crime Control and Law Enforcement Act of 1994. Pub.L. No. 103-322, 108 Stat. 1796 (1994). As part of this Act, Congress created a "safety valve" provision that limits application of statutorily-mandated minimum sentences to the more serious drug offenders. Id. at § 80001(a) (codified at 18 U.S.C. § 3553(f)). The safety valve provision enables a court faced with certain non-violent drug offenders to forgo applying the mandatory minimum sentence in favor of a lesser sentence under the sentencing guidelines. However, to obtain the benefit of § 3553(f), a defendant must, inter alia, provide truthful information to the Government concerning the crime.

Ivester pled guilty to one count of conspiring to manufacture in excess of 100 kilograms of marijuana in violation of 21 U.S.C. §§ 846, 841(a)(1). Because of the amount of marijuana involved, Ivester faced a five-year statutorily-mandated minimum sentence. See 21 U.S.C. § 841(b)(1)(B). Ivester sought a § 3553(f) downward departure from the statutorily-mandated minimum sentence. Finding that Ivester had failed to provide the Government with any truthful information concerning his crime, the district court denied Ivester a downward departure and imposed the five-year minimum sentence.

Ivester contends he is entitled to the departure in any event because he would have provided truthful information to the Government had it asked for any.

II.

It is now well-settled that the discretionary denial of a request for a downward departure from the sentencing guidelines is generally not subject to appellate review. See United States v. Underwood, 970 F.2d 1336, 1338 (4th Cir.1992); United States v. Bayerle, 898 F.2d 28, 30 (4th Cir.), cert. denied, 498 U.S. 819, 111 S.Ct. 65, 112 L.Ed.2d 39 (1990). Although this principle of non-review is true, we assume, without deciding, that it is inapplicable here because § 3553(f) provides relief from statutorily mandated sentences rather than those mandated by the sentencing guidelines.

Even if the principle of non-review applies to § 3553(f) departures, we recognize an exception where the district court's denial was premised on a mistaken belief that it lacked authority to depart downward. Bayerle, 898 F.2d at 31. In this limited circumstance, 18 U.S.C. § 3742(a)(1) provides appellate jurisdiction because the claim is essentially one for review of a sentence allegedly "imposed in violation of law." Id. Ivester's claim would fall within this exception because he contends the district court's denial of his downward departure motion was premised on an erroneous construction of § 3553(f). According to Ivester, the district court denied his motion because under its construction of § 3553(f), it did not believe it had authority to depart. We therefore turn to the merits of Ivester's claim.

Ivester raises an issue of statutory construction that is of first impression in this court, and one that has not been decided by any other circuit: whether pursuant to § 3553(f), defendants are required to affirmatively act to inform the Government of their crimes, or whether it is sufficient that they are willing to be completely truthful although the Government never attempts to obtain the information. We begin this task of statutory construction by examining the language of the statute. If that language is plain and unambiguous, our inquiry must cease and we are duty bound to give effect to that language. Robinson v. Shell Oil Co., 70 F.3d 325, 328-29 (4th Cir.1995).

As recently amended, § 3553 provides some relief from statutorily mandated minimum sentences where:

(1) the defendant does not have more than one criminal history point, as determined under the sentencing guidelines;

(2) the defendant did not use violence or credible threats of violence or possess a firearm or other dangerous weapon ... in connection with the offense;

(3) the offense did not result in death or serious bodily injury to any person;

(4) the defendant was not an organizer, leader, manager, supervisor of others in the offense, as determined under the sentencing guidelines and was not engaged in a continuing criminal enterprise, as defined at 21 U.S.C. § 848; and

(5) not later than the time of the sentencing hearing, the defendant has truthfully provided to the Government all information and evidence the defendant has concerning the offense or offenses that were part of the same course of conduct or of a common scheme or plan, but the fact that the defendant has no relevant or useful other information to provide or that the Government is already aware of the information shall not preclude a determination by the court that the defendant has complied with this requirement.

18 U.S.C. § 3553(f). Both parties agree that Ivester met the first four requirements of § 3553(f). At issue is whether Ivester complied with the final requirement that he provide truthful information to the Government about the conspiracy. Section 3553(f)(5) requires more than accepting responsibility for one's own acts; rather, satisfaction of § 3553(f)(5) requires a defendant to disclose all he knows concerning both his involvement and that of any co-conspirators. United States v. Acosta-Olivas, 71 F.3d 375, 378 (10th Cir.1995).

In the instant case, the Government sought no information from Ivester, and Ivester did not volunteer any information about the conspiracy. The record reveals that Ivester was one of the final conspirators to be indicted. Accordingly, the Government no longer needed additional information about the crime. But, because a defendant cannot be denied § 3553(f) relief merely because of the uselessness of the information to the Government, Ivester contends the court erred in denying his motion on this basis.

Ivester is correct that the district court could not deny him relief merely because the Government had no use for the information. However, regardless of the information's utility to the Government, § 3553(f)(5) requires a defendant to "truthfully provide to the Government all information ... concerning the offense." 18 U.S.C. § 3553(f)(5) (emphasis added). We believe this plain and unambiguous language obligates defendants to demonstrate, through affirmative conduct, that they have supplied truthful information to the Government. Although this specific issue has not been addressed by any other circuit, our construction of § 3553(f)(5) is consistent with dicta from the few courts that have analyzed the provision. See United States v. Acosta-Olivas, 71 F.3d at 379 (to obtain a reduction of sentence under § 3553(f), defendant may come forward and furnish all available information); United States v. Rodriguez, 69 F.3d 136, 143 (7th Cir.1995) (where defendant did not know any further information, defendant had burden of communicating that fact to the government to qualify for reduction); United States v. Wrenn, 66 F.3d 1, 3 (1st Cir.1995) ( § 3553(f)(5) contemplates an affirmative act of cooperation with the government no later than the time of the sentencing hearing).

Ivester contends nonetheless that § 3553(f)(5) should be construed to place on the Government the onus of seeking out defendants for debriefing. However, such a construction is not supported by § 3553(f)(5)'s plain language, and it would lead to an absurd result. Under Ivester's proffered construction, those defendants facing statutorily-mandated minimum sentences for drug convictions who were not approached and debriefed by the Government could qualify for the reduction even though they never provided the Government with any information. Ivester's construction of § 3553(f)(5) would essentially obviate the requirement that defendants "provide" information. We refuse to read a statute in such a way as to nullify its terms. See In re Application of the United States, 563 F.2d 637, 642 (4th Cir.1977).

Finally, Ivester contends that our construction of § 3553(f)(5) is illogical because it requires defendants to become government informants and, as such, renders redundant substantial assistance departures under § 3553(e) or its companion sentencing guidelines provision, U.S.S.G. § 5K1.1. Ivester notes that "substantial assistance" typically entails some level of affirmative conduct on the defendant's part that exceeds merely demonstrating a willingness to cooperate and answer questions. Hence, Ivester contends, it is irrational to construe § 3553(f) as permitting a...