U.S. v. Melendez

• Decision Date: 27 June 1995
• Docket Number: No. 93-5755,93-5755
• Parties: UNITED STATES of America v. Juan MELENDEZ, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

Page 130

55 F.3d 130

UNITED STATES of America v. Juan MELENDEZ, Appellant.

No. 93-5755.

United States Court of Appeals, Third Circuit.

Argued Feb. 16, 1995.

Decided May 22, 1995.

Sur Petition for Rehearing June 27, 1995.

Patrick A. Mullin (argued), Hackensack, NJ, for appellant.

Faith S. Hochberg, U.S. Atty., Victor Ashrafi (argued), Chief, Appeals Div., Newark, NJ, for appellee.

Before: STAPLETON and COWEN, Circuit Judges, and HUYETT, District Judge ^*.

OPINION OF THE COURT

STAPLETON, Circuit Judge:

Juan Melendez appeals his sentence. The first issue presented concerns a district court's authority to depart downward from a statutory minimum sentence based upon the defendant's substantial assistance with a criminal investigation where the government has moved under USSG Sec. 5K1.1 for a departure below the U.S. Sentencing Guideline range but has not moved under 18 U.S.C. Sec. 3553(e) for a departure below the statutory minimum. We hold that, under such circumstances, a district court's authority under Sec. 5K1.1 to depart below the Sentencing Guideline range does not permit it to depart below a lower minimum sentence set by statute. The second issue concerns Melendez's motion for a downward departure pursuant to application note 17 to USSG Sec. 2D1.1. We agree with the district court that Sec. 2D1.1 application note 17 does not permit a district court to depart downward from a statutory minimum sentence. The final issue concerns Melendez's contention that the district court should have permitted him to withdraw his guilty plea. The record establishes that Melendez in fact did not attempt to withdraw his plea before the district court.

I.

Melendez and codefendant Edwin Moya were approached by confidential informants of the United States Customs Service posing as importers and transporters of cocaine. This initial contact led to several meetings, during which Melendez, Moya, and the confidential informants discussed the availability of cocaine for distribution. The discussions culminated in a meeting during which Melendez and Moya gave the confidential informants $10,000 as a deposit toward the transportation expenses for 24 kilograms of cocaine. The next day, the two codefendants deposited an additional $2500 for the transportation of the cocaine.

Shortly thereafter, Moya and Melendez were arrested by New York authorities on unrelated drug charges. After their arrest, Moya's common law wife, Anna Maria Ferrara, her brother Raphael Ferrara, and her uncle Bienvenido Polanco, held further negotiations with the confidential informants for a 225-kilogram cocaine purchase. Government agents ultimately made a controlled delivery of 30 kilograms of cocaine to Raphael Ferrara and Polanco. Raphael Ferrara and Polanco were arrested shortly after taking possession of the drugs and Anna Maria Ferrara was arrested on the following day.

Melendez was charged with conspiring, in violation of 21 U.S.C. Sec. 846, to distribute and to possess with intent to distribute more than five kilograms of cocaine, a crime that carries a statutory minimum sentence of 10 years' imprisonment. 21 U.S.C. Sec. 841(b)(1)(A). He originally pleaded not guilty. Plea negotiations ensued, however, and Melendez ultimately signed a cooperating plea agreement. The agreement provided, in pertinent part, that in return for Melendez's cooperation with the government's investigation and his pleading guilty, the government would move for a downward departure from the applicable Guideline range pursuant to USSG Sec. 5K1.1. The agreement did not require the government to file a Sec. 3553(e) motion to depart below the statutory minimum, however. Melendez retracted his plea of not guilty and pleaded guilty to the charged conspiracy.

The probation officer determined that the Guideline sentencing range applicable to Melendez's crime was 135 to 168 months. The government, in accordance with the agreement, moved for a downward departure from that Guideline range, pursuant to Sec. 5K1.1, in recognition of Melendez's substantial assistance in the investigation or prosecution of another person. The district judge granted that motion, and departed downward from the sentencing range set by the Guidelines. However, because the government had not also moved pursuant to Sec. 3553(e), the judge ruled that he had no authority to depart below the statutory minimum and meted out the 10-year minimum sentence required by

statute. Melendez maintains that this was error. He argues that a Sec. 5K1.1 motion not only triggers the court's authority to depart downward from the sentencing level set by the Guidelines but also triggers the court's authority to depart below a lower, statutory minimum.

II.

The government maintains that Melendez waived or forfeited his right to appeal this issue, claiming that Melendez never formally argued to the district court that the government's Sec. 5K1.1 departure motion empowered the court to depart below the 10-year statutory minimum. To preserve the right to appeal a district court ruling, "it is sufficient that a party, at the time the ruling ... is made or sought, makes known to the court the action which that party desires the court to take ... and the grounds therefor." Fed.R.Crim.P. 51. Moreover, "[t]he general rule requiring counsel to make clear to the trial court what action they wish taken should not be applied in a ritualistic fashion. If the problem has been brought to the attention of the court, and the court has indicated in no uncertain terms what its views are, to require an objection would exalt form over substance." 3A Charles A. Wright, Federal Practice & Procedure Sec. 842, 289-90 (1982 & Supp.1994); see also Government of Virgin Islands v. Joseph, 964 F.2d 1380, 1384-85 (3d Cir.1992) (rejecting the government's contention that an issue was not preserved for appeal because the court had been made aware of the issue and because a contemporaneous objection would not have further aided the district court); cf. United States v. 57.09 Acres of Land, 757 F.2d 1025, 1027 (9th Cir.1985) (noting that the government did not waive its right to object to jury instructions because the court had been made "aware of the government's objection"); Bass v. Department of Agriculture, 737 F.2d 1408, 1413 (5th Cir.1984) (noting the established rule in civil cases "that formal objection is not necessary if the trial judge was fairly apprised of the nature of the objection").

Our review of the record reveals that Melendez in fact "[made] known to the court the action which [he] desire[d] the court to take." As the Assistant United States Attorney admitted during the sentencing hearing: "Both defendants through counsel have argued that the Court depart downward from this mandatory minimum." (App. at 24a.) Moreover, the district court was made well aware of the underlying legal debate over whether a Sec. 5K1.1 motion permits a district court to depart below a statutory minimum. The government admitted during the sentencing hearing that "[s]ome arguments indicate that the law doesn't require the Court to impose the mandatory minimum." (App. at 24a.) Most importantly, the district court clearly understood that Melendez was asserting these arguments; it expressly addressed and resolved the issue of the court's authority to depart below the statutory minimum. In this context, there was no need for Melendez to take the additional step of repackaging the government's statement as his own formal objection to preserve his right to appeal. Any such requirement would elevate form over substance. Thus, we conclude that this issue is properly preserved for appeal and we will proceed to the merits of Melendez's argument.

III.

Congress has decreed that a person who distributes, or conspires to distribute, five kilograms or more of cocaine "shall be sentenced to a term of imprisonment which may not be less than 10 years." 21 U.S.C. Sec. 841(b)(1)(A). This statute represents a Congressional judgment about the seriousness of this offense and the degree of sanction necessary to punish and deter this kind of conduct.

At the same time, Congress has recognized that the value to society of the cooperation of an individual charged with this kind of offense can, under some circumstances, outweigh the benefit to be derived from imposing the statutory minimum sentence. Accordingly, Congress has authorized sentences below this and other statutory minima. Section 3553(e) of Title 18 provides:

(e) Limited authority to impose a sentence below a statutory minimum.--Upon motion of the Government, the court shall have the authority to impose a sentence below a level established by statute as a minimum sentence so as to reflect a defendant's substantial assistance in the investigation or prosecution of another Notably, Congress has authorized sentences below a statutory minimum only upon the prosecution's motion; that is, before a court may depart below a statutory minimum, the prosecutor first must determine that the value of the cooperation is sufficiently great to warrant overriding Congress's judgment concerning the minimum appropriate sentence. By requiring a government motion, Congress thus gave the prosecutor the sole key that affords access to a sentence below a statutory minimum. Wade v. United States, 504 U.S. 181, 184, 112 S.Ct. 1840, 1843, 118 L.Ed.2d 524 (1992).

person who has committed an offense. Such sentence shall be imposed in accordance with the guidelines and policy statements issued by the Sentencing Commission pursuant to section 994 of title 28, United States Code.

That the prosecutor holds the sole key to the area below the statutory minimum does not mean that the sentencing court, once the prosecutor has made a Sec. 3553(e) motion, has unbridled discretion to set a defendant's sentence, however. As the final sentence of Sec. 3553(e) reflects, Congress contemplated that the limited downward departure authority there bestowed on a sentencing c...