U.S. v. Truman

Decision Date29 August 2002
Docket NumberNo. 01-5072.,01-5072.
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Sven P. TRUMAN, Defendant-Appellant.
CourtU.S. Court of Appeals — Sixth Circuit

Terry M. Cushing (briefed), Asst. U.S. Attorney, Louisville, KY, Erwin Roberts (argued and briefed), Office of the U.S. Attorney, Louisville, KY, for Plaintiff-Appellee.

Dennis Olgin (briefed), Scott C. Byrd (argued and briefed), Olgin & Byrd, Louisville, KY, for Defendant-Appellant.

Before: KRUPANSKY and BOGGS, Circuit Judges; LAWSON, District Judge.*


LAWSON, District Judge.

In this case we are called upon to determine the extent of a sentencing judge's discretion to depart from a prescribed Sentencing Guideline Range due to assistance offered by a defendant which did not result in the investigation or prosecution of another individual. The sentencing judge in this case held that U.S. Sentencing Guideline Manual (U.S.S.G.) § 5K1.1 applied in such a case and that, absent a motion from the government to depart, he lacked the discretion to do so. We hold that the grounds argued by the defendant as justification for departure fell outside the plain language of § 5K1.1, are governed by § 5K2.0, and permitted the sentencing court to exercise its discretion to depart without a motion from the government. We therefore vacate the judgment of sentence and remand for resentencing.


On February 23, 2000, the defendant, Sven Truman, sold 8,224 tablets of hydromorphone and methadone, both of which are Schedule II controlled substances, to an undercover officer. Truman was arrested the next day and interrogated by Drug Enforcement Agency (DEA) investigators. He initially lied about the manner in which he procured the pills, claiming that he had purchased them from a man in a bar. When the agents expressed incredulity at Truman's story, he responded, "All right, I'll come clean."

Truman confessed that when he had worked at Roxanne Laboratories (Roxanne) as a machinist, he had stolen the tablets by secreting them in his sock. Truman explained that surveillance procedures at Roxanne were minimal, particularly in the areas where the tablets were manufactured. When asked if he had any other controlled substances, Truman replied that he had 500 methadone tablets, 750 to 1000 morphine tablets and 3000 hydromorphone tablets in an "ALDI" bag in the trunk of his car in Ohio. After obtaining Truman's consent, officers searched Truman's automobile and found 14,172 tablets of hydromorphone, 2,852 tablets of morphine and 1,214 tablets of methadone in the car's trunk.

On March 14, 2000, two other Diversion Investigators with the DEA interviewed Truman at length about how he was able to defeat Roxanne's security procedures. As the government has conceded before this Court, Truman explained in detail how he removed the tablets and described the lax security procedures at Roxanne. Truman maintained that he acted alone.

On May 8, 2000, Truman pleaded guilty to possession with intent to distribute hydromorphone, methadone and morphine in violation of 21 U.S.C. § 841(a)(1) pursuant to a written Rule 11 plea agreement. In the plea agreement, Truman agreed that the government may transfer information about the case to other federal and state law enforcement agencies and he consented to the entry of an order authorizing the release of grand jury information under Fed.R.Crim.P. 6(e). The government agreed to recommend a sentence "at the lowest end of the applicable Guideline Range," subject to any statutory mandatory minimum sentence, but did not promise to seek a downward departure for substantial assistance under § 5K1.1.

On June 3, 2000, DEA investigators conducted a security investigation at Roxanne and met with Peter Dickinson, vice president of operations. Relying on Truman's statements during their March interview of him, the DEA investigators uncovered numerous security lapses at Roxanne and subsequently furnished a report to Dickinson. On August 18, 2000, Dickinson described to the investigators various security upgrades that Roxanne had implemented as a result of their report.

Thereafter, the district court conducted two hearings to determine the length of Truman's sentence. The court held that the applicable Guideline Range was 121 to 151 months, finding that Truman merited a three-level downward adjustment for acceptance of responsibility pursuant to U.S.S.G. § 3E1.1(a) & (b), as recommended by the probation officer. At both hearings, Truman moved for a downward departure pursuant to U.S.S.G. § 5K2.0, which permits departures for, inter alia, circumstances not contemplated by the Sentencing Commission in formulating the Guidelines. Truman highlighted his significant cooperation with the DEA investigators in their effort to upgrade Roxanne's security procedures as grounds for departure.

At the first hearing conducted on December 11, 2000, a DEA investigator testified that Truman was cooperative and that "he didn't hold back on us. He admitted to his part in it and cooperated in terms of telling us where additional drugs were located up in Columbus that he had possession of." J.A. at 56. However, the investigator rejected the thesis put forth by Truman's counsel that Truman's help was essential to uncovering the security lapses at Roxanne.

At the January 9, 2001 hearing, the district court remarked that Truman's help appeared essential:

Now, the government agents after it's over said, "Oh, we would have found that anyway." And that's the good thing to say. We're bright people, we would have found it as soon as we knew the name, but that's easy to say before the fact and after they have the information.

J.A. at 49. Nevertheless, the district court rejected Truman's motion to depart downward under § 5K2.0, concluding that "I do not believe I have the authority to reduce [Truman's sentence] under [§ 5K2.0]. I do not have the authority. So if I do not have the authority, that is now an appealable issue." J.A. at 49. The court clarified its understanding that it lacked authority to entertain Truman's downward departure motion by noting that it believed its discretion could only be triggered by a government motion. The court said, "I believe you granted all the assistance that you could to the state and federal authorities. I have found, however, that I have no power to make these motions for them. It's up to them. If you say they didn't, there's nothing I could do to overcome that." J.A. at 51.

The district court then sentenced Truman to 121 months in prison and 3 years of supervised release. On January 16, 2001, Truman timely filed his notice of appeal.


Although the application of the Sentencing Guidelines to a particular set of facts is a question of law to be reviewed de novo, United States v. Morrison, 983 F.2d 730, 732 (6th Cir.1993), we do not ordinarily review a district court's discretionary decision not to depart downward from the Guidelines Range. See United States v. Harris, 237 F.3d 585, 590-91 (6th Cir.2001) (appellate court without the authority to review district court's refusal to depart downward under § 5K2.0 for the defendant's "earnest efforts to cooperate with the authorities" because this decision was a matter of discretion). However, we will vacate a sentence where the district court erroneously believed that it lacked any authority to depart downward as a matter of law. See United States v. Landers, 39 F.3d 643, 649 (6th Cir.1994). Because the question of whether discretion exists at all is purely a question of law, we review a district court's determination that it lacked authority to depart downward de novo. See United States v. Thomas, 49 F.3d 253, 260 (6th Cir.1995).

The government contends that the sentencing court correctly concluded that it lacked discretion to depart downward since the basis of the defendant's request was his substantial assistance to authorities, and all substantial assistance motions are governed by U.S.S.G. § 5K1.1. The government correctly notes our holding that, according to Supreme Court precedent, "a district court may only consider a substantial assistance departure upon government motion." See United States v. Moore, 225 F.3d 637, 644 (6th Cir.2000). Our decision in Moore relied on the Supreme Court's decision in Wade v. United States, 504 U.S. 181, 112 S.Ct. 1840, 118 L.Ed.2d 524 (1992). However, in Wade, the defendant conceded, "as a matter of statutory interpretation, that [18 U.S.C.] § 3553(e) imposes the condition of a Government motion upon the district court's authority to depart, ... and he does not argue otherwise with respect to § 5K1.1." Id. at 185, 112 S.Ct. 1840.

The defendant counters with the argument that § 5K1.1 is not the exclusive provision for dealing with all cooperation, but rather the court may consider a defendant's cooperation not contemplated by § 5K1.1 under the grant of discretion to sentencing judges embodied in § 5K2.0. He urges us to follow the Second Circuit's decision in United States v. Kaye, 140 F.3d 86 (2d Cir.1998), in which the court limited § 5K1.1's application to cooperation with federal authorities. The defendant says that his cooperation was directed to state and local authorities and thus outside the scope, and limitation, of § 5K1.1.

In Kaye, the defendant appealed his sentence alleging that the sentencing judge erred in failing to recognize that he had discretion to grant a downward departure without a motion to do so by the government where the defendant provided, and the government acknowledged, substantial assistance to local authorities in the prosecution of others. After noting that the language in § 5K1.1 and the Commentary does not explicitly state whether "assistance" refers to cooperation with "both federal and local authorities or to federal authorities alone," 140 F.3d at 87, the court held that "the term `offense' in Section 5K1.1 is properly interpreted to refer only to...

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