U.S. v. Polanco, POLANCO-CAMPAGNA

• Decision Date: 13 December 1994
• Docket Number: 94-2544,Nos. 94-2198,POLANCO-CAMPAGNA,s. 94-2198
• Citation: 53 F.3d 893
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Carlos Jose POLANCO, a/k/a Richard Anthony Brown, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellant, v. Jose Alfredo, a/k/a Jose Alfredo Planco-Campagna, Defendant-Appellee. . Submitted:
• Court: U.S. Court of Appeals — Eighth Circuit

Page 893

53 F.3d 893

UNITED STATES of America, Plaintiff-Appellee, v. Carlos Jose POLANCO, a/k/a Richard Anthony Brown,

Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellant, v. Jose Alfredo POLANCO-CAMPAGNA, a/k/a Jose Alfredo

Planco-Campagna, Defendant-Appellee.

Nos. 94-2198, 94-2544.

United States Court of Appeals Eighth Circuit.

Submitted: Dec. 13, 1994.

Decided April 20, 1995.

Virginia Villa, Minneapolis, MN, argued, for appellant.

Nathan Petterson, Asst. U.S. Atty., Minneapolis, MN, argued, for USA.

Leon Trawick, Minneapolis, MN, argued, for appellee in No. 94-2544.

Before MCMILLIAN, Circuit Judge, JOHN R. GIBSON, Senior Circuit Judge, and SHAW, ^* District Judge.

JOHN R. GIBSON, Senior Circuit Judge.

Carlos Jose Polanco pleaded guilty to distributing 49.4 grams of cocaine base ("crack cocaine") in violation of 21 U.S.C. Sec. 841(a)(1) (1988). His half-brother, Jose Alfredo Polanco-Campagna, pleaded guilty to aiding and abetting this distribution in violation of 21 U.S.C. Sec. 841(a)(1) and 18 U.S.C. Sec. 2 (1988). The district court sentenced Carlos to the minimum mandatory sentence of 60 months imprisonment and five years of supervised release. Carlos appeals, arguing for reconsideration of United States v. Rodriguez-Morales, 958 F.2d 1441 (8th Cir.), cert. denied, --- U.S. ----, 113 S.Ct. 375, 121 L.Ed.2d 287 (1992), in which we held that a sentencing judge may not depart below the statutory mandatory minimum absent a government motion under 18 U.S.C. Sec. 3553(e) (1988). The district court sentenced Jose to 36 months imprisonment and five years of supervised release, departing below the guideline sentencing range and the statutory mandatory minimum because of Jose's minimal involvement and relative culpability. The government appeals Jose's sentence, arguing that the district court lacked the authority to depart below the statutory mandatory minimum without a government motion under 18 U.S.C. Sec. 3553(e). We affirm the sentence of Carlos Polanco, but vacate the sentence of Jose Polanco-Campagna.

The codefendants were arrested in Bloomington, Minnesota, after selling 49.4 grams of crack cocaine to an informant for the Hennepin County Sheriff's Office. Following the arrest, the officers executed a search warrant at Carlos' apartment, where Jose was also staying at the time. The officers found eight more grams of crack cocaine in a bedroom closet and a loaded .12 gauge shotgun under Carlos' bed.

All parties concede that Carlos was trafficking narcotics and that Jose was helping Carlos. Carlos obtained the drugs and had been dealing drugs for some time, while Jose had little or no experience. After his indictment, Carlos gave information to the Hennepin County narcotics officers regarding his drug source. This information led to federal charges against four other defendants. Carlos also cooperated with other drug investigations in both Hennepin and Ramsey County and is cooperating with New York police investigating illegal cloning of cellular phones.

Jose and Carlos both pleaded guilty to Count I of a four-count indictment ¹, which charged them with aiding and abetting one another and distributing 49.4 grams of crack cocaine. Count I carries a mandatory five year minimum sentence. 21 U.S.C. Sec. 841(b)(1)(B) (1988 & Supp. V 1993). The district court sentenced Carlos and Jose to 60 and 36 months respectively, followed by five years of supervised release for each.

The district court's interpretation of the scope of a sentencing guideline is a question of law which we review de novo. United States v. Werlinger, 894 F.2d 1015, 1016 (8th Cir.1990). We discuss each sentence and appeal separately.

I.

Carlos' plea agreement provided that, in exchange for his substantial assistance in providing information about narcotics trafficking activities, the government would file a motion for departure from the guideline range, U.S.S.G. Sec. 5K1.1, p.s. (Nov. 1994), but expressly stated that the government would not make a motion under 18 U.S.C. Sec. 3553(e) for departure below the statutory mandatory minimum. The agreement stated that Count I carried a statutory mandatory minimum of five years imprisonment.

The district court determined Carlos' total offense level to be 31 ² and his criminal history category to be II, with a presumptive guideline imprisonment range of 121 to 151 months, a supervised release range of four to five years, and a fine range of $15,000 to $2 million. ³ Pursuant to the plea agreement, the government made a section 5K1.1 motion due to Carlos' substantial assistance, but did not make a separate section 3553(e) motion. The district court granted the government's section 5K1.1 motion, departing downward from 121 to 60 months imprisonment. The district court then stated that, absent a section 3553(e) motion, Eighth Circuit law would not permit further departure. See Rodriguez-Morales, 958 F.2d at 1447 (holding that "[o]nly a government motion based on section 3553(e) will allow the court to depart below the mandatory minimum;" a motion pursuant to section 5K1.1 alone is insufficient).

On appeal, Carlos contends that the district court should have the discretion to impose a sentence below the statutory mandatory minimum whenever the government files a motion for guideline departure under section 5K1.1, regardless of whether the government has also filed a motion under section 3553(e). We affirm Carlos' sentence for two reasons, neither of which require extensive discussion: (1) Carlos waived any objection to his sentence by acknowledging in his plea agreement that five years was the statutory mandatory minimum, and by accepting the benefit of the plea, United States v. Livingston, 1 F.3d 723, 725 (8th Cir.1993); United States v. Womack, 985 F.2d 395, 399-400 (8th Cir.), cert. denied, --- U.S. ----, 114 S.Ct. 276, 126 L.Ed.2d 227 (1993); and (2) we are bound by our decision in Rodriguez-Morales, 958 F.2d at 1447, which only the court en banc can overrule. Liberty Mut. Ins. Co. v. Elgin Warehouse & Equip., 4 F.3d 567, 571 (8th Cir.1993). See United States v. Sanchez, 32 F.3d 1330, 1336 (8th Cir.1994) (refusing to reconsider Rodriguez-Morales ), cert. denied, --- U.S. ----, 115 S.Ct. 1119, 130 L.Ed.2d 1082 (1995); Womack, 985 F.2d at 399 (same).

II.

Jose's plea agreement stated that the statutory mandatory minimum for Count I was five years, but did not provide for any government departure motion.

The district court determined Jose's total offense level to be 24 ⁴ and his criminal history category to be I, with a presumptive guideline imprisonment range of 51 to 63 months, a supervised release range of four to five years, and a fine range of $10,000 to $100,000. However, the statutory mandatory minimum of five years narrowed the imprisonment range to 60 to 63 months. See U.S.S.G. Sec. 5G1.1 (Nov. 1994) (resolving conflicts between the guideline range and a statutorily required minimum sentence in favor of the statutory minimum).

At sentencing, the district court noted the government's section 5K1.1 motion for Carlos and not for Jose. The government explained that it did not file such a motion for Jose because Jose was unable to provide any assistance due to his lack of information. The court sentenced Jose below the mandatory minimum because "[a]bsent departure, the Guidelines and 21 U.S.C. Sec. 841(b)(1)(B) compel the bizarre and anomalous result that Jose must be sentenced to a mandatory 60-month term of imprisonment, which is as long as that imposed upon his more culpable co-defendant." United States v. Polanco-Campagna, No. 4-93-CR-129(02), slip op. at 3 (D.Minn. May 23, 1994). The court determined that this disproportionality of sentence to culpability was a "mitigating circumstance of a kind ... not adequately taken into consideration by the Sentencing Commission." 18 U.S.C. Sec. 3553(b) (1988); U.S.S.G. Sec. 5K2.0, p.s. (Nov. 1994), quoted in Polanco-Campagna, slip op. at 3. The court characterized the government's unwillingness to move for a section 3553 departure as "arbitrary and in bad faith on these facts." Polanco-Campagna, slip op. at 4. Accordingly, the court departed below the guidelines and the statutory minimum sentence, and sentenced Jose to 36 months. Id.

A sentencing court may impose a sentence outside of the applicable guideline range if the court "finds that there exists an aggravating or 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." 18 U.S.C. Sec. 3553(b); U.S.S.G. Sec. 5K2.0, p.s. Whether the circumstances relied upon by the sentencing court to depart are sufficiently unusual to justify departure is a question of law which we review de novo. United States v. Maxwell, 25 F.3d 1389, 1400 (8th Cir.), cert. denied, --- U.S. ----, 115 S.Ct. 610, 130 L.Ed.2d 519 (1994).

Section 3553(b) and guideline section 5K2.0 do not permit departure from a statutory mandatory minimum, but rather from the applicable guideline range. Cf. Rodriguez-Morales, 958 F.2d at 1444 (holding that the plain language of U.S.S.G. Sec. 5K1.1, its application notes and its commentary do not provide for departure below the statutory mandatory minimum, only for departure below the guidelines sentence). At the time of Jose's sentencing, the only means to depart below a statutory minimum sentence was found in 18 U.S.C. Sec. 3553(e). ⁵ Without a section 3553(e) motion or the unconstitutional refusal of one, United States v. Romsey, 975 F.2d 556, 557-58 (8th Cir.1992), the district court had no authority to depart below the statutory minimum.

Section 3553(e) states that "[u]pon motion of the Government, the court shall have the authority to impose a sentence below a level established by statute as minimum sentence so as to reflect a defendant's substantial assistance." Because Jose was unable to provide any...