U.S. v. Rodriguez-Morales, RODRIGUEZ-MORALES

• Decision Date: 27 April 1992
• Docket Number: No. 91-2355,RODRIGUEZ-MORALES,91-2355
• Citation: 958 F.2d 1441
• Parties: UNITED STATES of America, Appellant, v. Aliciaa/k/a Gloria Hernandez, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1441

958 F.2d 1441

UNITED STATES of America, Appellant, v. Alicia RODRIGUEZ-MORALES a/k/a Gloria Hernandez, Appellee.

No. 91-2355.

United States Court of Appeals Eighth Circuit.

Submitted Sept. 11, 1991.

Decided March 11, 1992.

Rehearing and Rehearing En Banc

Denied April 27, 1992.

Marietta Parker, Kansas City, Mo., argued (Jean Paul Bradshaw, II., on brief), for appellant.

Ronald Partee, Kansas City, Mo., argued (Anthony P. Brooklier, Beverly Hills, Cal., on brief), for appellee.

Before JOHN R. GIBSON, Circuit Judge, HEANEY, Senior Circuit Judge, and BEAM, Circuit Judge.

JOHN R. GIBSON, Circuit Judge.

Alicia Rodriguez-Morales pleaded guilty to a charge of possession with intent to distribute 50 or more grams of cocaine base in violation of 21 U.S.C. § 841(a)(1) (1988) and (b)(1)(A) (West Supp.1991). The district court sentenced Rodriguez to thirty six months' imprisonment and five years of supervised release. The United States appeals Rodriguez's sentence because the district court departed below the statutory mandatory minimum sentence of 120 months without a government motion pursuant to 18 U.S.C. § 3553(e) (1988) requesting such a departure, even though the government had filed a motion to depart under United States Sentencing Guideline Section 5K1.1. We reverse and remand for resentencing.

On October 12, 1990, law enforcement officers arrested Rodriguez at the Kansas City International Airport after she admitted during a lawful investigative stop that she was carrying crack cocaine in her luggage. A search of her luggage revealed 7,974.8 grams of crack cocaine. Rodriguez said that she was delivering the crack from Ontario, California, to a person in Kansas City whom she knew only as "Mike." Rodriguez agreed to cooperate with the government agents and assist them in making a controlled delivery to Mike. The agents accompanied Rodriguez to a motel, where she allowed them to tape record telephone conversations she made to arrange Mike's pickup of the crack. When Michael Garrett arrived at the motel, agents arrested him.

On October 16, 1990, Rodriguez and Garrett were indicted for conspiracy to possess with intent to distribute 50 or more grams of cocaine base in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), and 846. The government filed a superseding indictment, adding a count charging Rodriguez with possession with intent to distribute cocaine base in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A).

On December 5, 1990, Rodriguez and the government entered into a plea agreement. Rodriguez agreed to plead guilty to the possession count in exchange for the government's promise to drop the conspiracy count. The plea agreement also stated that if Rodriguez provided "substantial assistance as determined by the United States and defined in § 5K1.1 of the Sentencing Guidelines, prior to sentencing, the United States [would] file a motion authorizing the Court to depart downward from the Sentencing Guidelines and the statutory minimum pursuant to Title 18, United States Code, Section 3553(e)." (Emphasis in original).

Rodriguez gave a deposition to preserve her testimony for Garrett's trial because she was in the late stages of a pregnancy, and hence, uncertain as to whether she would be available at trial. Although it turned out that Rodriguez was available to testify at Garrett's trial, the government decided not to call her when it learned that she had testified untruthfully during her deposition that she had never been to Kansas City before her arrest on October 12, 1990. The government believed that it could not call Rodriguez as a witness because "her credibility had been so destroyed that we couldn't use her." Garrett was nevertheless convicted on both charges. United States v. Garrett, 948 F.2d 474 (8th Cir.1991).

Before Rodriguez's sentencing, the government filed a motion for downward departure pursuant to section 5K1.1 of the Sentencing Guidelines, based on Rodriguez's "substantial assistance to the government in the investigation of Michael Garrett." The government stressed that its motion was "pursuant to Section 5K1.1 only and in no way alters or affects the mandatory minimum sentence applicable in this case pursuant to 21 U.S.C. §§ 841(a)(1) and (b)(1)(A)." The mandatory minimum sentence for Rodriguez's violation was 120 months' imprisonment, while the sentencing guidelines provided for a range of 235-295 months' imprisonment.

The district judge sentenced Rodriguez to 36 months' imprisonment and five years of supervised release, relying on United States v. Keene, 933 F.2d 711 (9th Cir.1991), for authority to depart below the statutory minimum pursuant only to a 5K1.1 motion. The government objected that under its 5K1.1 motion, the court was allowed to depart only down to the statutory minimum. The government then appealed Rodriguez's sentence.

The issue is one of first impression in this circuit: whether a sentencing judge can depart below the statutory mandatory minimum sentence when the government has moved for a downward departure for substantial assistance pursuant to United States Sentencing Guidelines section 5K1.1, and not pursuant to 18 U.S.C. section 3553(e). The underlying question is whether sections 5K1.1 and 3553(e) provide for two different types of departure, as the government contends, or whether they are intended to perform the same function, as Rodriguez claims. Under the government's view, only a section 3553(e) motion allows for departure below the mandatory minimum. Under Rodriguez's view, section 5K1.1 is merely an implementation of section 3553(e), and, therefore, the sentencing judge may depart below the mandatory minimum under a section 5K1.1 motion, just as he would be able to do with a section 3553(e) motion.

In 1984, Congress enacted section 3553(e) as part of the Omnibus Crime Bill. The statute reads as follows:

(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 minimum sentence so as to reflect a defendant's substantial assistance in the investigation or prosecution of another 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.

Title 28 of U.S.C. § 994(n) (1988), a part of the Sentencing Reform Act of 1984, states that the Sentencing Commission:

shall assure that the guidelines reflect the general appropriateness of imposing a lower sentence than would otherwise be imposed, including a sentence that is lower than that established by statute as minimum sentence, to take into account a defendant's substantial assistance in the investigation or prosecution of another person who has committed an offense.

The Sentencing Commission promulgated section 5K1.1 of the Guidelines, which provides in part: "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."

While this court has not yet considered the specific issue in this case, we have compared section 5K1.1 with section 3553(e) in a number of decisions. See, e.g., United States v. Spees, 911 F.2d 126, 127 (8th Cir.1990); United States v. Oransky, 908 F.2d 307, 309 (8th Cir.1990); United States v. Coleman, 895 F.2d 501, 504-05 & n. 5 (8th Cir.1990); United States v. Grant, 886 F.2d 1513, 1514 (8th Cir.1989); United States v. Justice, 877 F.2d 664, 666-67 (8th Cir.), cert. denied, 493 U.S. 958, 110 S.Ct. 375, 107 L.Ed.2d 360 (1989).

In Coleman, we referred to section 5K1.1 as being section 3553(e)'s counterpart and we said that "although the two sections can have different effects, their requirement of a government motion before departure in recognition of a defendant's substantial assistance is identical; the requirement is clear and unambiguous." 895 F.2d at 504 (footnote omitted). We observed that section 3553(e) specifically refers to mandatory minimum statutory sentences, while 5K1.1 refers to departure below the guideline range. Id. at 504 n. 5. We held "that in order for a court to depart based upon substantial assistance under § 3553(e) from a mandatory minimum sentence, the government must first file a motion under § 3553(e)." Id. at 505 (citation omitted). While Coleman did not face the issue now before us, ¹ it underscored the requirement that the government file a motion under section 3553(e) before the judge can depart below statutory mandatory minimum sentences. But see United States v. Carnes, 945 F.2d 1013, 1014 (8th Cir.1991) (after government filed 5K1.1 motion, the court, in affirming a sentence including a five year minimum sentence for a firearm charge, stated in dictum that "the district court understood its authority to impose a sentence of less than five years, but chose not to do so.").

In this case, the government specifically filed a section 5K1.1 motion under the Guidelines, and expressly refused to file a motion under section 3553(e). Whether a distinction exists between the motion under the statute and the one under the Guidelines is thus critical to our decision in this case. Section 994(n) explicitly requires that the Guidelines reflect the general appropriateness of imposing lower sentences for substantial assistance, including those below the mandatory minima. When we look at section 5K1.1, it is evident that this policy statement authorizes departure from the Guidelines range. Even though section 994(n) states that the Commission "shall assure" that the Guidelines reflect the general appropriateness of a departure below both the Guidelines and mandatory minimum sentences, section 5K1.1 by its plain terms makes no mention of departure below mandatory minimums--only departure from the...