U.S. v. Mariano

Decision Date11 December 1992
Docket Number92-1630,Nos. 92-1491,s. 92-1491
PartiesUNITED STATES of America, Appellee, v. Abel A. MARIANO, Jr., Defendant, Appellant. UNITED STATES of America, Appellee, v. Barry BUTTERWORTH, Defendant, Appellant. . Heard
CourtU.S. Court of Appeals — First Circuit

Richard J. Shea, with whom Edward C. Roy was on brief, for defendant, appellant Abel A. Mariano, Jr.

Richard A. Gonnella for defendant, appellant Barry Butterworth.

Edwin J. Gale, Asst. U.S. Atty., with whom Lincoln C. Almond, U.S. Atty., and Margaret E. Curran, Asst. U.S. Atty., were on brief, for appellee.

Before SELYA, Circuit Judge, BOWNES, Senior Circuit Judge, and STAHL, Circuit Judge.

SELYA, Circuit Judge.

These consolidated appeals challenge determinations made by the district court under the federal sentencing guidelines. Concluding, as we do, that the court misconstrued its authority to depart from a predetermined sentencing range in consequence of a defendant's substantial assistance, U.S.S.G. § 5K1.1 (Nov.1991), we remand for resentencing.

I. BACKGROUND

The instant appeals find their genesis in the polluted political purlieus of Pawtucket, Rhode Island. See, e.g., United States v. Sarault, 975 F.2d 17 (1st Cir.1992) (affirming racketeering sentence with respect to Pawtucket's mayor). The appellants, Abel A. Mariano, Jr. and Barry Butterworth, secured lucrative municipal contracts and, in the course of performing the jobs, lubricated the wheels of city government by paying under-the-table cash stipends to insistent municipal officials. Mariano made periodic payments (perhaps totalling as much as $50,000) to forestall the reassignment of sewer-line repair work to another contractor. Butterworth decided to play ball as part of his effort to retain generous contracts for the renovation of McCoy Stadium. In all, Butterworth made a series of payments to the ringleaders in an aggregate amount exceeding $100,000.

Appellants' payments took place over a substantial span of time. It was only after the authorities started to uncover pervasive corruption in the Sarault administration that appellants began cooperating with the U.S. Attorney. In the aftermath of this cooperative effort, the government, rather than seeking indictments, prepared informations charging the two men with violating 18 U.S.C. § 666(a)(2) (1988). 1 The defendants pled guilty pursuant to plea agreements providing in relevant part that the government would pursue a reduction in the offense level based on the defendants' assistance to law enforcement agencies.

Mariano and Butterworth were charged and sentenced separately. In each instance, the prosecution described the defendant's cooperation and argued for a six-level downward departure pursuant to U.S.S.G. § 5K1.1. The district court refused to depart and sentenced each defendant to a twenty-seven month prison term--an incarcerative sentence at the top end of the guideline sentencing range (GSR). The government moved for reconsideration. In explaining his refusal to reconsider, the district judge, referring to and quoting from United States v. Aguilar-Pena, 887 F.2d 347 (1st Cir.1989), stated that he did not have discretion to depart.

In these appeals, 2 appellants claim in unison that the district court erred in establishing the base offense level (and, hence, in fixing the GSR), that the court misapprehended the legal standard governing departures under section 5K1.1, and that their sentences were "plainly unreasonable" in derogation of 18 U.S.C. § 3742(a)(4) (1988). In addition, Mariano contends that the district court labored under fundamental factual misconceptions and violated the Due Process Clause by focusing exclusively on deterrence concerns to the detriment of an individualized sentence. Not to be outdone, Butterworth contends that the government breached the plea agreement by failing to argue enthusiastically enough in support of a downward departure.

We concentrate initially on appellants' flagship claim--the assertion that the court below misapprehended the controlling legal standard, thus mismeasuring the limits of the discretion entrusted to it under section 5K1.1. We take this tack because, if this claim pans out, most of appellants' other asseverations need not be considered.

II. THE COURT'S AUTHORITY TO DEPART

We begin our discussion of the court's authority to depart by pondering a jurisdictional quandary. That quandary resolved, we then address the merits of appellants' claim.

A. Appellate Jurisdiction.

Ordinarily, an appeal will not lie from a district court's refusal to depart from a properly calculated sentencing range. See United States v. Tardiff, 969 F.2d 1283, 1290 (1st Cir.1992); United States v. Romolo, 937 F.2d 20, 22 (1st Cir.1991) (collecting cases). However, appellate jurisdiction may attach when it appears that the failure to depart stemmed from the sentencing court's mistaken impression that it lacked the legal authority to depart or, relatedly, from the court's misapprehension of the rules governing departure. See United States v. Amparo, 961 F.2d 288, 292 (1st Cir.), cert. denied, --- U.S. ----, 113 S.Ct. 224, 121 L.Ed.2d 161 (1992); United States v. Lauzon, 938 F.2d 326, 330 (1st Cir.), cert. denied, --- U.S. ----, 112 S.Ct. 450, 116 L.Ed.2d 468 (1991); Romolo, 937 F.2d at 22. Although this paradigm is dictated by the Sentencing Reform Act, see Romolo, 937 F.2d at 23 (discussing operation of 18 U.S.C. § 3742(a)), it also works well from a practical standpoint: in respect to declinations to depart, the limited appellate review that is available serves to correct errors which are essentially "legal" in nature, but does not brook interference with a sentencing court's exercise of factfinding functions or discretion. See Amparo, 961 F.2d at 292; see also Romolo, 937 F.2d at 23.

These appeals fit snugly within the contours of the exception permitting appellate review. The gravamen of appellants' complaint is their colorable claim 3 that the district court confused the legal standard governing departures under U.S.S.G. § 5K1.1 with the legal standard governing departures under a markedly different guideline, U.S.S.G. § 5K2.0. This claim presents a question of law, not of fact, comfortably within our assigned purview. We hold, therefore, that we have jurisdiction over these appeals.

B. The Distinction Between Departure Modalities.

We turn next to the merits of the claim. Because the assignment of error involves the parameters of a district judge's departure authority, we afford plenary review. See Lauzon, 938 F.2d at 330; cf. United States v. Diaz-Villafane, 874 F.2d 43, 49 (1st Cir.) (holding that de novo review is warranted when the court of appeals is called upon to determine "whether or not circumstances are of a kind or degree that may appropriately be relied upon to justify departure" under section 5K2.0), cert. denied, 493 U.S. 862, 110 S.Ct. 177, 107 L.Ed.2d 133 (1989).

The district judge explicitly interpreted our decision in United States v. Aguilar-Pena, 887 F.2d 347 (1st Cir.1989), as restricting his ability to depart downward in these cases. Aguilar-Pena, however, involved a district court's decision to depart under section 5K2.0. 4 See id. at 349-53. Under section 5K2.0, a district court is empowered to depart from the GSR if there "exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission." U.S.S.G. § 5K2.0 (quoting 18 U.S.C. § 3553(b)). Noting that "the birth of the Sentencing Commission was to some extent reflective of Congress's ardent desire to dispense with inequalities based on localized sentencing responses," Aguilar-Pena, 887 F.2d at 352, we held that the district court's authority to depart under section 5K2.0 was restricted to those few instances where there is "something 'special' about a given offender, or the accoutrements of the crime committed, which distinguishes the case from the mine-run for that offense." Id. at 350. In other words, Aguilar-Pena reflected this court's staunch belief that section 5K2.0 operates as a safety valve to be employed at the discretion of the district judge on those infrequent occasions when some important, atypical factor, not duly considered by the Sentencing Commission, removes a particular case from "the heartland for a given offense." Id. at 351.

U.S.S.G. § 5K1.1 is a different provision with a different raison d'etre. Congress specifically directed the Sentencing 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) (1988). Section 5K1.1 sprouted from this statutory seed. It provides, inter alia, that:

Upon motion of the government stating that the defendant has provided substantial assistance in the investigation or prosecution of another person who has committed an offense, the court may depart from the guidelines.

U.S.S.G. § 5K1.1. This guideline serves a dual purpose. In addition to permitting ex post tailoring of defendants' sentences to reflect meaningful assistance rendered between the dates of apprehension and sentencing, it provides defendants, ex ante, with an incentive to cooperate in the administration of justice. See, e.g., United States v. Damer, 910 F.2d 1239, 1241 (5th Cir.) (per curiam), cert. denied, 498 U.S. 991, 111 S.Ct. 535, 112 L.Ed.2d 545 (1990).

The methodological contrast between the two departure modalities is glaring. Because section 5K2.0 in a sense operates to promote disparity, the Sentencing Commission strove to minimize the number of times it would be invoked. But, because section 5K1.1 operates in part as an incentive, promoting cooperation with law enforcement agencies, the Sentencing Commission strove to...

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