U.S. v. White

• Decision Date: 15 December 1995
• Docket Number: No. 95-3003,95-3003
• Citation: 71 F.3d 920
• Parties: , 64 USLW 2480 UNITED STATES of America, Appellee, v. Rohan C. WHITE, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 920

71 F.3d 920

315 U.S.App.D.C. 212, 64 USLW 2480

UNITED STATES of America, Appellee, v. Rohan C. WHITE, Appellant.

No. 95-3003.

United States Court of Appeals District of Columbia Circuit.

Argued Oct. 10, 1995.

Decided Dec. 15, 1995.

Appeal from the United States District Court for the District of Columbia (No. 94cr00081-01).

Carmen D. Hernandez, Assistant Federal Public Defender, argued the cause, for appellant. A.J. Kramer, Federal Public Defender, was on the brief.

Michael N. Levy, Assistant United States Attorney, argued the cause, for appellee. Eric H. Holder, Jr., United States Attorney, and John R. Fisher, Thomas J. Tourish, Jr. and Martin D. Carpenter, Assistant United States Attorneys, were on the brief.

Before: SILBERMAN, SENTELLE and HENDERSON, Circuit Judges.

Opinion for the court filed by Circuit Judge HENDERSON.

KAREN LECRAFT HENDERSON, Circuit Judge:

In March 1994 appellant Rohan White was arrested and charged with two counts of possessing with intent to distribute both cocaine base (crack) and cocaine hydrochloride (cocaine) in violation of 21 U.S.C. Sec. 841(a)(1) and (b)(1). He faced a mandatory minimum sentence of 10 years. See 21 U.S.C. Sec. 841(b)(1)(A)(iii). Pursuant to a plea agreement he pled guilty in May 1994 to one count of conspiracy to possess with intent to distribute at least 50 grams of cocaine and at least 50 grams of crack in violation of 18 U.S.C. Sec. 371. That statute provides a maximum sentence of 60 months and no mandatory minimum. Thus, as a result of his plea White faced a maximum sentence of 60 months under the United States Sentencing Guidelines. See U.S.S.G. Sec. 5G1.1(a). The district court gave him a 6-month downward departure because he was a deportable alien. See generally United States v. Smith, 27 F.3d 649 (D.C.Cir.1994). The court rejected his other departure requests and sentenced him to 54 months' imprisonment.

White appeals his sentence on four grounds. First, he argues that the district court erred in denying his request for a substantial assistance departure pursuant to U.S.S.G. Sec. 5K1.1, notwithstanding the government's failure to make the required motion to depart. Second, he contends that the court erred in not granting him a downward departure pursuant to U.S.S.G. Sec. 5K2.0 based on his alleged extraordinary assistance to the government. Third, he argues that the court erred in not granting him a downward departure pursuant to U.S.S.G. Sec. 5K2.13 based on his alleged diminished mental capacity. Fourth, he asks that we remand to let the district court consider a section 5K2.0 departure based on the alleged irrationality of the crack/cocaine sentencing disparity. We address these claims in turn and conclude they are without merit.

I. Alleged Substantial Assistance

We first address White's claim that the district court erroneously concluded it lacked authority to depart under section 5K1.1, which provides "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" based on various enumerated factors. Our review is de novo. United States v. Williams, 980 F.2d 1463, 1466 (D.C.Cir.1992).

A.

Immediately after his arrest White provided no timely or valuable information in connection with the offense of which he was convicted and the government was unable to nab his alleged coconspirator. ¹ Two months after his arrest White signed a plea agreement which said nothing about his cooperation with the government or the possibility of a substantial assistance motion. While jailed and awaiting sentencing, White began cooperating with the United States Attorney for the Eastern District of Virginia and other authorities in their investigation of certain criminal activity in Virginia. He began cooperating with the hope he would receive a favorable sentencing adjustment but without the government's agreement to that end. The United States Attorney for the District of Columbia, who was prosecuting White, did not learn of his cooperation until shortly before sentencing. The district court postponed sentencing so the Departure Committee could consider the possibility of a section 5K1.1 motion. (In the District of Columbia a departure committee decides whether a defendant's assistance warrants a substantial assistance motion.)

The Departure Committee contacted an Assistant United States Attorney from the Eastern District of Virginia and received in return a letter highlighting the nature of White's assistance. The letter said White had provided valuable information but did not say whether his assistance had been "substantial" or whether a section 5K1.1 motion was warranted. The letter concluded that White's cooperation was not then complete. The United States Attorney for the District of Columbia then filed with the district court a response to White's request for a section 5K1.1 motion and explained that the Departure Committee had denied White's request because it was incomplete and that White ultimately might benefit from a rule 35(b) motion. ² At the deferred sentencing hearing White asserted that his assistance was substantial and that he deserved a departure. The court explained that it had no authority to depart in the absence of a government motion.

White contends that the government violated his right to due process by arbitrarily refusing to file a section 5K1.1 motion to reward his substantial, albeit incomplete, assistance. The thrust of White's claim is that the government must at the time of sentencing make a good faith determination whether a defendant has provided substantial assistance and cannot be influenced by the availability of a rule 35(b) motion once the defendant completes his post-sentencing assistance. He seeks a remand to give the district court the opportunity to depart, if it chooses, under section 5K1.1. He has preserved the issue for appeal by protesting below that the government arbitrarily and in bad faith refused to file a section 5K1.1 at sentencing based on his assistance at that time. Cf. Wade v. United States, 504 U.S. 181, 186, 112 S.Ct. 1840, 1844, 118 L.Ed.2d 524 (1992) (discussed below).

B.

Our analysis of White's claim centers on the Supreme Court's opinion in Wade v. United States, supra. Defendant Wade pled guilty without the benefit of a plea agreement. He cooperated with the authorities after his arrest but the government made no promise regarding a substantial assistance motion. At sentencing the prosecutor, without explanation, refused to move for a downward departure pursuant to either section 5K1.1 or 18 U.S.C. Sec. 3553(e). ³ The district court did not let Wade question the prosecutor as to why he refused to make a motion. On appeal Wade argued that such an inquiry was necessary to determine whether the prosecutor had acted arbitrarily or in bad faith. United States v. Wade, 936 F.2d 169, 171 (4th Cir.1991). The Fourth Circuit affirmed and held that although there was "no disagreement" that Wade "provided valuable assistance to the government," neither a defendant nor a district court may "inquire into the government's reasons and motives if the government does not make the motion." Id. at 170, 172. The Supreme Court affirmed in a unanimous decision, although the Court distanced itself somewhat from the Fourth Circuit's broad holding that a prosecutor's refusal to file a substantial assistance motion can never be subject to judicial review.

The Court began by noting that in the absence of a motion by the government a district court has no authority to depart on the basis of a defendant's cooperation with the government. Wade, 504 U.S. at 185, 112 S.Ct. at 1843; see United States v. Doe, 934 F.2d 353 (D.C.Cir.) (upholding government motion requirement against due process challenge), cert. denied, 502 U.S. 896, 112 S.Ct. 268, 116 L.Ed.2d 221 (1991). The Court explained that "the Government has a power, not a duty, to file a motion when a defendant has substantially assisted." 504 U.S. at 185, 112 S.Ct. at 1843. That is, the mere fact that the defendant has rendered substantial assistance does not entitle the defendant to a government motion or, it follows, a reduction in his sentence.

As for the scope of judicial review, the Court concluded that the prosecutor's decision not to file a substantial assistance motion should be treated like other prosecutorial decisions that are "subject to constitutional limitations that district courts can enforce." Id. The Court held that "federal district courts have authority to review a prosecutor's refusal to file a substantial-assistance motion and to grant a remedy if they find that the refusal was based on an unconstitutional motive." Id. at 185-86, 112 S.Ct. at 1843-44 (citing Wayte v. United States, 470 U.S. 598, 608-09, 105 S.Ct. 1524, 1531-32, 84 L.Ed.2d 547 (1985) (selective prosecution case which held "the decision to prosecute may not be deliberately based upon an unjustifiable standard such as race, religion, or other arbitrary classification, including the exercise of protected statutory and constitutional rights") (internal quotation marks and citations omitted)). The Court explained that a defendant is not entitled to a remedy or even to discovery or an evidentiary hearing merely by alleging an unconstitutional motive. Rather, the defendant must make a substantial threshold showing of improper motive. Id. 504 U.S. at 186, 112 S.Ct. at 1844.

White does not contend the government failed to make a section 5K1.1 motion based on an unconstitutional motive. Instead he seizes on the portion of the Wade opinion in which the Court addressed Wade's request for a remand to develop a claim based on the prosecutor's alleged "arbitrary" or "bad faith" withholding of a substantial assistance motion. The Supreme Court said "Wade would be entitled to relief if the prosecutor's refusal to move was...