U.S. v. Sorensen

• Decision Date: 21 September 1990
• Docket Number: 89-2255,Nos. 89-2253,s. 89-2253
• Citation: 915 F.2d 599
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Thomas Michael SORENSEN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 599

915 F.2d 599

UNITED STATES of America, Plaintiff-Appellee, v. Thomas Michael SORENSEN, Defendant-Appellant.

Nos. 89-2253, 89-2255.

United States Court of Appeals Tenth Circuit.

Sept. 21, 1990.

Submitted on the briefs: ^*

William L. Lutz, U.S. Atty., and James D. Tierney, Asst. U.S. Atty., Albuquerque, N.M., for plaintiff-appellee.

Tova Indritz, Federal Public Defender, and Peter Schoenburg and Stephen P. McCue, Asst. Federal Public Defenders, Albuquerque, N.M., for defendant-appellant.

Before MOORE, ANDERSON and McWILLIAMS, Circuit Judges.

McWILLIAMS, Circuit Judge.

Thomas Sorensen was charged in two separate indictments with various drug related crimes. Pursuant to a plea agreement, Sorensen pled guilty to one count in the first indictment charging him with carrying and using a firearm during and in relation to a drug trafficking crime in violation of 18 U.S.C. Sec. 924(c)(1). As a part of the plea agreement, Sorensen also pled guilty to one count in a second indictment charging him with willfully maintaining a place for the purpose of distributing and using cocaine, in violation of 21 U.S.C. Sec. 856(a) and 18 U.S.C. Sec. 2. In return, the other charges in the two indictments were dismissed.

In a Memorandum of Understanding entered into in connection with Sorensen's plea of guilty to the charge of carrying and using a firearm in relation to a drug trafficking crime, the government made no agreement as to sentencing, reserving the right to make known to the probation service, for inclusion in the presentence report, "any information which the government believes may be helpful to the Court."

In a Memorandum of Understanding entered into in connection with Sorensen's plea of guilty to the charge in the second indictment of maintaining a place for the distribution and use of cocaine, the government agreed to certain nonbinding recommendations to the court concerning Sorensen's sentence. Specifically, the government agreed that Sorensen had clearly demonstrated a recognition and acceptance of personal responsibility for his conduct, that he was a "minor participant" in the criminal activity alleged in the indictment, and that the court should not depart "upward" in determining Sorensen's base offense level.

We note at this point that neither Memorandum of Understanding contained a provision that the government would file with the district court a motion under 18 U.S.C. Sec. 3553(e). ¹

18 U.S.C. Sec. 924(c)(1) provides, in part, that a person who uses a firearm in relation to any drug trafficking crime shall, in addition to any other sentence, be sentenced to imprisonment for five years. The government did not file any motion under 18 U.S.C. Sec. 3553(e), and, accordingly, Sorensen was sentenced to five years imprisonment on his plea of guilty to carrying and using a firearm in relation to a drug trafficking charge. He was also sentenced to six months imprisonment on his plea of guilty to the count in the second indictment charging him with maintaining a place for the distribution and use of cocaine. The two sentences were to be served consecutively.

Prior to sentencing, however, Sorensen filed with the district court a Motion for Court Ordered Departure Pursuant to 18 U.S.C. Sec. 3553(e), asking the district court to enter an order requiring the government to file a written motion, pursuant to 18 U.S.C. Sec. 3553(e), moving the court to depart below the sentence of five years required by 18 U.S.C. Sec. 924(c)(1) because of Sorensen's "substantial assistance in the investigation or prosecution of another person who has committed an offense."

In opposition to Sorensen's motion, the government filed a motion which stated the reasons why the government declined to file such motion. Specifically, the government stated that Sorensen was nothing more than a "cooperative arrestee," that his cooperation did not lead to the arrest of another, and that Sorensen received "other benefits" as a result of the plea agreement.

As indicated, the district court, in effect, denied Sorensen's motion that the government be required to file a motion under 18 U.S.C. Sec. 3553(e) and sentenced Sorensen to five years imprisonment on his plea of guilty to carrying and using a firearm in relation to a drug trafficking crime, such sentence to be in addition to the six months sentence imposed on Sorensen's plea of guilty to maintaining a place for the distribution and use of cocaine. Sorensen appeals the sentences thus imposed. We affirm.

On appeal, Sorensen raises four issues: (1) 18 U.S.C. Sec. 3553(e) allows for judicial review of the government's decision not to file a motion for the imposition of a sentence below a statutory minimum sentence; (2) 18 U.S.C. Sec. 3553(e) violates substantive due process in that it allows a court to sentence below the statutory minimum sentence only upon the filing of a motion by the government; (3) 18 U.S.C. Sec. 3553(e) violates procedural due process if there is no judicial review of the government's decision not to file a motion; and (4) the government's decision in the instant case not to file a motion under 18 U.S.C. Sec. 3553(e) was arbitrary, unfair and in bad faith.

The parties agree that ours is a de novo review. At the outset we note that in the Memorandum of Understanding the government did not agree that it would file a motion under 18 U.S.C. Sec. 3553(e), nor did it even agree to "consider" the filing of such motion if Sorensen gave assistance to the government. This, then, is not an instance where the government has allegedly reneged on a promise made by it to a defendant and embodied in the plea bargain.

Further, we also note that apparently the "substantial assistance" which Sorensen claims he gave to the government occurred prior to the Memorandum of Understanding. In this regard, we learn from the record that the Albuquerque police had made an undercover purchase of drugs at the home of one Leonard Bromberg, and as a result of that sale the police had obtained a search warrant for Bromberg's home and had placed a surveillance on the home. During the afternoon of April 5, 1989, Sorensen was observed driving to Bromberg's residence, entering the house, and exiting soon thereafter. Shortly after he drove away from Bromberg's home, Sorensen was stopped by the police. A consent search of his car and his brief case disclosed 61.14 grams of cocaine, 16 bags with cocaine residue, and a pistol.

Sorensen was cooperative with the arresting officers and said that indeed Bromberg had just "fronted him" with two ounces of cocaine. At that time, Sorensen indicated he would assist the police in making their arrest of Bromberg, the police being fearful that Bromberg was armed. Sorensen advised the police that Bromberg was, in fact, armed. Further, at the suggestion of the police, Sorensen made two phone calls to Bromberg in an effort to lure Bromberg out of his residence. Bromberg, however, insisted he was too sick to leave. When these efforts failed, a SWAT team was called to the scene. Sorensen advised the SWAT team of the location of Bromberg's firearm and the security devices in the house. At about 9:00 p.m. on April 5, 1989, the officers made a forced entrance into Bromberg's home and arrested him without incident. So far as we can tell from the record, such was the extent of any "assistance" given by Sorensen.

Much of Sorensen's argument has been rejected in a very recent decision by this court in United States v. Kuntz, 908 F.2d 655 (10th Cir.1990). In Kuntz, we were concerned with section 5K1.1 of the federal sentencing guidelines, which implements 18 U.S.C. Sec. 3553(e) and reads as follows:

"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."

In Kuntz, under a Memorandum of Understanding, the defendant agreed to plead guilty, and the government agreed, inter alia, "that if the defendant assists the United States that such assistance will be evaluated to determine whether a motion for departure downward is appropriate pursuant to 5K1.1 of the Sentencing Guidelines." 908 F.2d at 656. The government did not file any motion, and at sentencing defense counsel argued that the defendant had in fact cooperated with the government and that there should be a downward...