U.S. v. Lawal

• Decision Date: 24 February 1994
• Docket Number: D,No. 8,8
• Citation: 17 F.3d 560
• Parties: UNITED STATES of America, Appellee, v. Genevieve LAWAL, Francis Wiredu, Augustina Erskine, Hannah Nemo, Agnes Anane, Constance Hagan, and Osman El-Alana, Defendants, Adu Gyanfi Wiredu, Defendant-Appellant. ocket 92-1462.
• Court: U.S. Court of Appeals — Second Circuit

Page 560

17 F.3d 560

UNITED STATES of America, Appellee, v. Genevieve LAWAL, Francis Wiredu, Augustina Erskine, Hannah Nemo, Agnes Anane, Constance Hagan, and Osman El-Alana, Defendants Adu Gyanfi Wiredu, Defendant-Appellant.

No. 8, Docket 92-1462.

United States Court of Appeals Second Circuit.

Argued Nov. 30, 1993.

Decided Feb. 24, 1994.

Julie E. Katzman, Assistant United States Attorney for the Eastern District of New York (Zachary W. Carter, United States Attorney for the Eastern District of New York, Susan Corkery, Assistant United States Attorney, of counsel), for appellee.

Georgia J. Hinde, New York, New York (Vivian Shevitz, New York, New York, of counsel), for defendant-appellant.

Before: MESKILL, KEARSE and JACOBS, Circuit Judges.

JACOBS, Circuit Judge:

A criminal defendant who is the beneficiary of a downward departure under the Sentencing Guidelines appeals from the sentence on the ground that the United States District Court for the Eastern District of New York (Nickerson, J.) did not adduce the required statement of reasons for the departure and because circumstances of the sentencing suggest to defendant that the extent of the departure was curtailed for impermissible considerations. We dismiss the appeal for lack of jurisdiction.

BACKGROUND

On October 8, 1991, Adu Gyanfi Wiredu and five of his co-defendants in this case arrived in New York aboard a flight from Ghana. Wiredu, his brother Francis, and Eve Darko were arrested when customs inspectors found heroin in their baggage. Almost immediately, Wiredu and his brother agreed to cooperate with law enforcement agents, and their cooperation led to the arrest of several co-conspirators.

Pursuant to a formal cooperation agreement with the government, Wiredu pleaded guilty on January 14, 1992 to an indictment charging him and his co-defendants with conspiring to import heroin into the United States in violation of 21 U.S.C. Sec. 963.

The presentence report issued by the Probation Office in May 1992 calculated that, under the Sentencing Guidelines, Wiredu's sentence would range from 78 to 97 months, but noted that Wiredu's offense carried a mandatory minimum prison term of ten years under 21 U.S.C. Sec. 960(b)(1)(A). The government, however, in recognition of Wiredu's substantial assistance to law enforcement authorities, moved pursuant to 18 U.S.C. Sec. 3553(e) and U.S.S.G. Sec. 5K1.1 to permit a downward departure from the mandatory minimum and Guidelines sentences.

At Wiredu's sentencing hearing on June 26, 1992, his counsel suggested that the criminal episode was an aberration attributable to business reverses, emphasized his client's prompt cooperation with the government, argued that Wiredu was a minimal participant in the drug conspiracy, and urged the district court to depart downward based on the government's Sec. 5K1.1 motion. He also alluded to Wiredu's "medical problems" and the recent burglarization of Wiredu's apartment as additional factors to consider in sentencing.

The prosecutor confirmed that Wiredu was a minimal participant, but contested the idea that Wiredu's criminal behavior was motivated by financial hardship, adding "particularly where he was a--he was in the United States lawfully and could work here...."

The district court then granted Wiredu a three level reduction for timely acceptance of responsibility, the third level representing essentially a prospective application of an amendment to U.S.S.G. Sec. 3E1.1 that otherwise did not become effective until November 1, 1992. Then, after a brief statement by the defendant, the district court judge announced "I am going to depart downward and impose a sentence of 33 months, and I don't impose a fine. I find you are unable to pay a fine. And I impose a term of supervised release of three years, which is the minimum that I can, and a $50 assessment."

ANALYSIS

Our jurisdiction to hear a defendant's appeal from a sentence is limited to instances in which the sentence imposed is (1) in violation of the law; (2) a misapplication of the Guidelines; (3) an upward departure from the Guidelines; or (4) a plainly unreasonable penalty for an offense not included in the Guidelines. See 18 U.S.C. Sec. 3742(a). "[I]t is beyond question that we may not review a district court's determination not to grant a downward departure. It follows logically, then, that neither may we review, at defendant's request, the extent of any departure the court may grant." United States v. Doe, 996 F.2d 606, 607 (2d Cir.1993) (citations omitted). We have recognized, however, that a defendant may appeal from a discretionary decision not to depart downward if that decision is made in violation of the law or if that decision is a result of a misapplication of the Guidelines. See United States v. Adeniyi, 912 F.2d 615, 618 (2d Cir.1990); United States v. Soliman, 889 F.2d 441, 443 (2d Cir.1989); United States v. Colon, 884 F.2d 1550, 1552-54 (2d Cir.), cert. denied sub nom. Papathanasion v. United States, 493 U.S. 998, 110 S.Ct. 553, 107 L.Ed.2d 550 (1989). It follows from these authorities that a defendant likewise may appeal the extent of a downward departure if but only if, either of the same two conditions are met.

Wiredu concedes in his brief that the downward departure was, at least in part, premised on Wiredu's substantial assistance to the government. A downward departure for such assistance is undoubtedly valid, and the extent of the departure is ordinarily unappealable. Doe, 996 F.2d at 607. Wiredu, however, points to the deeper sentence reductions awarded to co-defendants in allegedly comparable circumstances. He claims that, in addition to valid considerations (such as the nature and fruitfulness of his cooperation), the district court may have considered invalid factors in determining his sentence, such as the superior employment opportunities available to him as a legal resident in this country. He argues that these allegedly impermissible factors might have been revealed if the district court had complied with 18 U.S.C. Sec. 3553(c), which requires that "[t]he court, at the time of sentencing, shall state in open court the reasons for its imposition of the particular sentence, and, if the sentence ... is [outside the Guidelines range], the specific reason for the imposition of a sentence different from that [range]." The question is whether the district court's failure to state reasons for the downward departure is appealable by a defendant. We hold that it is not.

Wiredu's challenge to his sentence is premised on speculation concerning the district court's grounds for departing downward to 33 months and no further. There is force to the argument that Wiredu is relegated to speculation because the sentence was imposed without the required statement of reasons that might have obviated any speculation. Nevertheless, we lack jurisdiction for the following reasons.

Although failure to state reasons for a downward departure can be characterized as "in violation of law," we have refused to construe that phrase "broadly to allow appeals based on any arguable claim of error in sentencing." Colon, 884 F.2d at 1553. In Colon, we found that Congress intended to confine appellate review of sentences to those that were "based on impermissible considerations, or [were] the result of some other demonstrable error of law." Id. Moreover, Congress specifically restricted "review of departures upward to de...