U.S. v. Senn

Decision Date13 December 1996
Docket NumberNo. 95-4085,95-4085
Citation102 F.3d 327
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Darin SENN, Defendant-Appellant.
CourtU.S. Court of Appeals — Seventh Circuit

Chris R. Larsen (argued), Office of the United States Attorney, Milwaukee, WI, for U.S.

James M. Shellow, Shellow, Shellow & Glynn, Milwaukee, WI, James J. Warner (argued), San Diego, CA, for Darin Senn.

Before EASTERBROOK, RIPPLE and DIANE P. WOOD, Circuit Judges.

RIPPLE, Circuit Judge.

In accord with his plea agreement, Darin Senn cooperated actively with the government in its drug investigations. The government, in return, filed a motion for downward departure based upon his substantial assistance. The government revised its recommendation, however, after the court granted its motion for dismissal of one count to which Mr. Senn had pleaded guilty. The court followed that revised recommendation. Mr. Senn appeals his sentence on the ground that the government violated his right of due process by failing to provide to the court an accurate, good faith assessment of his level of cooperation in its revised motion for downward departure. He also appeals the forfeiture of his property on double jeopardy grounds. For the reasons that follow, we affirm the judgment of the district court.

I BACKGROUND

Seven individuals were known to be involved in a conspiracy to distribute cocaine, marijuana and methamphetamine. On June 22, 1994, a nine-count indictment was returned in the Eastern District of Wisconsin against Darin Senn and other known co-conspirators. The indictment also contained forfeiture provisions seeking the forfeiture of thirteen firearms and $50,000 seized from Mr. Senn at the San Diego, California, airport. Several months later, a one-count information also was filed; it charged Mr. Senn with evading the financial reporting requirements by structuring financial exchanges for less than $10,000.

On February 6, 1995, pursuant to a plea agreement, Mr. Senn pleaded guilty to the counts of conspiracy to distribute controlled substances (21 U.S.C. §§ 846, 841(a)(1)) and use of firearms during and in relation to the drug trafficking offense (18 U.S.C. §§ 924(c), 2). He also entered a guilty plea to the information charging him with currency structuring and evading the reporting requirements (31 U.S.C. §§ 5324(a)(1), 5322(a); 18 U.S.C. § 2). Mr. Senn agreed to cooperate with the government. In exchange, the government agreed to move for a downward departure under § 5K1.1 1 of the United Because of Mr. Senn's substantial assistance, the government filed, on November 13, 1995, a motion requesting a fourteen-level downward departure with respect to the conspiracy count. Under that recommendation, Mr. Senn would serve 24 to 30 months for the conspiracy count. When that sentence was added to the mandatory 60 months for the firearms charge, the total sentence would be 84 months.

                States Sentencing Guidelines ("USSG") and 18 U.S.C. § 3553(e). 2  Mr. Senn significantly aided the government's investigation and gave testimony at subsequent trials
                

Shortly before sentencing, the Supreme Court decided Bailey v. United States, --- U.S. ----, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995). That decision invalidated the theory concerning "use" of a firearm during a drug trafficking crime (18 U.S.C. § 924(c)) on which the government had relied in this case. In light of Bailey, the government moved to dismiss the § 924(c) firearms count against Mr. Senn. It also notified both the court and the defendant that, because of the dismissal of that count, the government would adjust its sentencing recommendation in the presentence report. 3 Although it would continue to recommend a departure downward that is 50% from the low end of the guideline range, the government stated, it would change its specific recommendation concerning Mr. Senn's substantial assistance from a fourteen-level to a seven-level decrease.

At the sentencing hearing the government presented that revised recommendation. The court granted the government's motions for dismissal of the firearms count and for the seven-level downward departure based on the defendant's cooperation with the government. The court placed Mr. Senn's total offense level at 30. After a seven-level departure to level 23, which established a guideline imprisonment range of 57-71 months, the court sentenced Mr. Senn to 60 months in custody plus four years of supervised release and a $5,000 fine. Mr. Senn challenges only the downward departure calculation of his sentence.

II DISCUSSION
A. The Downward Departure

Mr. Senn's cooperation was originally evaluated and recommended as a fourteen-level departure from the sentencing guideline range. Mr. Senn submits that the government's modified evaluation of his cooperation, reduced to a seven-level downward departure, was inaccurate and violated his right of due process. He further asserts that the changed assessment was made in bad faith. Because Mr. Senn's claims are based on the contrast between the government's two recommendations for downward departure, we begin by setting out the original motion and modified recommendation as the United States presented them to the district court.

In its motion of November 13, 1995, the government offered a detailed summary of Mr. Senn's cooperation and then made this recommendation:

At sentencing, the government will request a total 84 month sentence, constituting a 50% reduction in his sentence from the low end of the guideline range and entailing a 14-level downward departure (from level 29 to level 15, resulting in a 24-30 month range). Combined with the mandatory 60 month sentence under 18 U.S.C. 924(c), the defendant would face an 84 month sentence at the low end of the guideline range.

R. 219 at 5. However, after the government sought dismissal of the count charging use of firearms pursuant to 18 U.S.C. § 924(c), it adjusted its sentencing recommendation and, specifically, its motion for downward departure:

Utilizing the same percentage reduction applied in the government's initial motion for downward departure, the government will recommend a 68-month sentence as to Darin Senn (a seven-level departure, or 50% from the low end of the guideline range)....

R. 226 at 2.

1.

Mr. Senn does not disagree with the government's original motion for a fourteen-level downward departure for his substantial assistance in the investigation and prosecution of others. In that motion, the government recognized the quality of his cooperation and the extent and effectiveness of his assistance. However, after the firearms count was dismissed, Mr. Senn submits, the government arbitrarily changed its evaluation of the level of his cooperation from a fourteen-level decrease to a seven-level one, even though there were no changed circumstances that would have rendered his assistance less substantial.

Mr. Senn challenges the propriety of the reduced downward departure recommendation on two grounds. He contends first that the government improperly based its revised recommendation not on the level of Mr. Senn's assistance to the government but rather on the sentence it wanted to achieve. In his view, its evaluation of Mr. Senn's cooperation was therefore an inaccurate assessment, and yet it was that evaluation upon which the court relied. In support, Mr. Senn relies on United States v. Thomas, 930 F.2d 526 (7th Cir.), cert. denied, 502 U.S. 857, 112 S.Ct. 171, 116 L.Ed.2d 134 (1991), overruled on other grounds, United States v. Canoy, 38 F.3d 893, 906 (7th Cir.1994) (overruling Thomas 's interpretation of USSG § 5H1.6). In Thomas, the court held that the level of a downward departure must be determined under the guidelines and that the court may not consider other factors unrelated to cooperation in setting the level of departure. Id. at 529-30. Mr. Senn takes this analysis one step further. He claims that the government's failure to provide accurate information regarding his level of cooperation violated his right of due process. Mr. Senn also submits that a prosecutor's discretion is limited by a subjective good faith standard. In this case, he insists, the government's recommendation, based on an inaccurate assessment of his level of cooperation, was made in bad faith. On these grounds the defendant requests that we remand his case to the district court for resentencing.

2.

The government responds that it acted reasonably and in good faith when making both departure recommendations. According to the government, both downward departures were based upon the same rational theory. The government's first motion recommended that the court order a fourteen-level downward departure "to accomplish a 50% reduction in the defendant's overall sentence from the low end of the guideline range." R. 219 at 5. The motion stated that the reduction would produce a 24-30 month sentence and that the additional mandatory 60-month sentence under 18 U.S.C. § 924(c) for use of firearms would yield an 84-month sentence at the low end of the guideline range. Thus, asserts the government, the specific downward departure it recommended was linked to the structure of the guidelines. After the government moved to dismiss the firearms count in light of Bailey, it simply adjusted its recommendation to accomplish the same result: a 50% reduction in the sentence.

3.

The decision to depart downward from the guidelines is wholly within the discretion of the district court, and our jurisdiction to review that decision is limited. We lack jurisdiction to review the extent of a downward departure that was granted under § 5K1.1. 4 However, we have jurisdiction to review a sentence imposed in violation of law. 5 Because Mr. Senn has framed his claim for a greater downward departure as a violation of constitutional due process, we shall consider whether his challenge is reviewable under § 3742(a).

Section 5K1.1 requires the government's motion for a...

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