U.S. v. Lugman
| Decision Date | 25 November 1997 |
| Docket Number | No. 97-40377,97-40377 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Abdul Karem LUGMAN, Defendant-Appellant. Summary Calendar. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Gregg Arthur Marchessault, Tyler, TX, for Plaintiff-Appellee.
James W. Volberding, Tyler, TX, for Defendant-Appellant.
Appeal from the United States District Court for the Eastern District of Texas.
Before JOLLY, BENAVIDES and PARKER, Circuit Judges.
I.
On February 19, 1996, Appellant Abdul Karem Lugman was traveling in a car driven by Nicholas Parson, when deputies of the Henderson County, Texas, Sheriff's Department attempted to stop them for a traffic violation. Lugman and Parson attempted to evade the sheriff's deputies, leading them on a high-speed chase ending when Parson lost control of the car, which flipped and landed on the hood of the deputies' patrol car. The Presentence Investigation Report ("PSR") indicates that the deputies observed Lugman stick his arm out of the window of the car during the chase, as though he were throwing something out. At the place along the road where the deputies observed Lugman stick his arm out of the window, they discovered two plastic bags containing a substance, which upon analysis proved to be 32.41 grams of crack cocaine.
On October 28, 1996, pursuant to a plea agreement, Lugman entered a plea of guilty to one count of possession with intent to distribute crack cocaine, in violation of 21 U.S.C. § 841(a)(1). In his plea agreement, Lugman agreed to cooperate fully with law enforcement and in return the United States Attorney agreed to inform the court and probation office of the extent and value of his cooperation and to recommend a three-level reduction in Lugman's base offense level for his acceptance of responsibility. It was understood that these recommendations were not binding on the district court.
In the PSR the probation office added two levels to Lugman's base offense level for Reckless Endangerment During Flight under U.S.S.G. § 3C1.2, on the basis that Parson's attempt to evade capture was attributable to Lugman. Lugman objected to the § 3C1.2 enhancement and to the probation officer's refusal to recommend a two-level decrease in the base offense level under U.S.S.G. § 3B1.2 on the basis that Lugman was a minimal participant. Lugman also made a motion for downward departure under U.S.S.G. § 5K2.0, because the government did not make a motion for downward departure under U.S.S.G. § 5K1.1, in exchange for Lugman's cooperation with them in the investigation and prosecution of other drug traffickers. Lugman had apparently assisted local authorities in Texas to make cases against other drug traffickers. However, those cases had not been resolved and the government refused to request a downward departure under § 5K1.1 until they were, whereupon the government would make a motion to reduce Lugman's sentence under Fed.R.Crim.P. 35. 1 Lugman's concern, naturally, was that the cases might not be resolved within the one-year time limit for motions under Rule 35.
On March 21, 1997, the district court overruled Lugman's objections, denied his motion for downward departure and sentenced him to seventy-eight (78) months confinement, the minimum allowed under his offense level as calculated by the probation office. Lugman appeals assigning the following errors:
1. The district court erred by denying Lugman's motion for a downward departure under U.S.S.G. § 5K2.0; 2. The district court erred by adding a two-level enhancement to Lugman's base offense level for obstruction of justice/reckless endangerment during flight under U.S.S.G. § 3C1.2;
3. The district court erred by refusing to decrease Lugman's base offense level by two-levels under U.S.S.G. § 3B1.2 for being a minimal participant.
II.
LAW & ANALYSIS
U.S.S.G. § 5K2.0 allows the district court to make a downward departure from the guidelines "if the court finds 'that there exists [a] ... mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence different from that described.' " To the extent that the district court's decision not to depart downward in this case involves a determination of whether § 5K2.0 can apply in cases of substantial assistance is a question of law reviewed for abuse of discretion. Koon v. United States, 518 U.S. 81, ----, 116 S.Ct. 2035, 2047, 135 L.Ed.2d 392 (1996) (). 2 Likewise, if, as a matter of law, § 5K2.0 may be applied to make a downward departure in a case of substantial assistance, then the determination of whether the facts warrant a downward departure under § 5K2.0 "will in most cases be due substantial deference, for it embodies the traditional exercise of discretion by a sentencing court." Id. at ----, 116 S.Ct. at 2046. Yet, this Court has gone even further in the context of downward departures under § 5K2.0, stating that:
[w]e may only review a trial court's refusal to grant a downward departure from the Guidelines if the refusal was based on a violation of the law ... Thus, we have jurisdiction if a district court's refusal to depart downward is premised upon the court's mistaken conclusion that the Guidelines do not permit such departure, but we have no jurisdiction if the court's refusal is based on its determination that departure is not warranted on the facts of the case.
United States v. Palmer, 122 F.3d 215, 222 (5th Cir.1997), citing United States v. Mitchell, 964 F.2d 454, 462 (5th Cir.1992). This rule of deferential review is a recognition that review even for abuse of discretion, might become a chance to second-guess the district court.
In this case the district court specifically found that there were no factors not taken into consideration by the Guidelines as to warrant a downward departure. The district court was apparently satisfied that any assistance Lugman had rendered or might render in aid of law enforcement would be adequately accounted for by the government's Rule 35 motion, if warranted. The district court denied Lugman's motion for downward departure on the basis that the facts adduced by Appellant as proof of his substantial assistance did not yet warrant such a departure. Therefore, this court lacks jurisdiction to review that wholly discretionary conclusion. 3
We review the district court's factual finding that Lugman's conduct amounted to reckless endangerment during flight under § 3C1.2 for clear error. United States v. Campbell, 42 F.3d 1199 (9th Cir.1994), cert. denied, 514 U.S. 1091, 115 S.Ct. 1814, 131 Appellant does not contest that Parson's attempt to evade the sheriff's deputies and the ensuing high speed chase amounted to reckless endangerment during flight. Rather, Appellant contests the district court's finding that he was culpable for the conduct of Parsons. Application note 5 to § 3C1.2 states that "[u]nder this section, the defendant is accountable for his own conduct and for conduct that he aided or abetted, counseled, commanded, induced, procured, or willfully caused." U.S.S.G. § 3C1.2 (n.5). The district court adopted the PSR's findings in their entirety. In the PSR, in response to Appellant's objection to the § 3C1.2 enhancement, the probation officer stated that the defendant was responsible for Parson's conduct pursuant to U.S.S.G. § 1B1.3(a)(1)(B). 4 The probation officer stated that the fact that Lugman agreed to travel with Parson, knowing cocaine was inside the car, makes § 1B1.3(a)(1)(B) applicable.
L.Ed.2d 738 (1995). See also United States v. Tello, 9 F.3d 1119, 1122 (5th Cir.1993) (), citing United States v. Ainsworth, 932 F.2d 358, 362 (5th Cir.1991), cert. denied, 502 U.S. 928, 112 S.Ct. 346, 116 L.Ed.2d 286 (1991).
Furthermore, as evidence that Lugman aided, counseled, or commanded the conduct of Parson, the PSR cites the records of the Henderson County Sheriff's Department, which contained an investigator's notes of an interview with Lugman on February 20, 1996. The investigator's notes revealed that Lugman, upon being given Miranda warnings, stated that Parson was unaware of the drugs which Lugman had on him, when Lugman got in the car. When the sheriff's deputies attempted to stop Parson, according to the investigator's notes, Lugman informed Parson that he had drugs on him, and that Parson needed to do something or they were going to jail. Therefore, according to the investigator's notes of his interview with Lugman, it was Lugman's idea to run from the deputies.
Lugman insists that it was an abuse of discretion for the district court to adopt that portion of the PSR, which relies on the investigator's notes of his interview with Lugman. Nowhere in his brief does Lugman maintain that the investigator's notes are inaccurate or false. Rather, he...
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