June 2, 2013
UNITED STATES OF AMERICA
DEBORAH K. CHASANOW, United States District Judge
Defendant pleaded guilty, pursuant to a written plea agreement, to the charge of conspiracy to distribute and possess with intent to distribute at least 28 grams of cocaine base, which carries a mandatory minimum sentence of five years imprisonment. In exchange for Defendant’s agreement to cooperate in the investigation or prosecution of others, the Government agreed to make a motion pursuant to U.S.S.G. § 5K1.1 and 18 U.S.C. § 3553(e), requesting a departure of up to two levels. Defendant is free to seek a greater departure.
The defense filed sentencing memoranda in which it appeared to seek a sentence below the mandatory minimum based on factors articulated in 18 U.S.C. § 3553(a), i.e., those unrelated to Defendant’s cooperation. In response, the court invited counsel to distinguish United States v. Martin, 496 Fed.Appx. 336, 337 (4th Cir. 2012), a recent unpublished opinion in which the Fourth Circuit reiterated that:
“in determining the extent of a departure below a statutory minimum a district court should look [solely] to the substantial assistance factors listed in [U.S.S.G.] § 5K1.1(a) . . . and other factors related to that assistance.” United States v. Hood, 556 F.3d 226, 234 n. 2 (4th Cir. 2009) (internal citation omitted); see also United States v. A.B., 529 F.3d 1275, 1285 (10th Cir. 2008) (holding that district court did not have authority to depart any further below statutory minimum after granting § 3553(e) motion and could not consider § 3553(a) factors); United States v. Williams, 474 F.3d 1130, 1130–31 (8th Cir. 2007) (holding that district court may look only to § 3553(e) in going below statutory minimum and not to factors listed in § 3553(a)).
Defendant then filed an additional memorandum arguing that all of the § 3553(a) factors may be considered in sentencing under these circumstances, relying primarily upon United States v. Davis, 679 F.3d 190 (4th Cir. 2012).
Defendant’s position reflects a misunderstanding of the state of the law and the import of the Davis opinion, and suggests the need to clarify the procedures applicable to substantial assistance departures under § 3553(e). That statute provides:
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 a 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.
18 U.S.C. § 3553(e). Notably, this language differs from that set forth in Fed.R.Crim.P. 35(b) – which provides, in (b)(4), that “[w]hen acting under Rule 35(b), the court may reduce the sentence to a level below the minimum sentence established by statute” – and 18 U.S.C. § 3553(f) – the safety valve provision, which states, in pertinent part, that the court shall impose sentence “without regard to any statutory minimum sentence.”
In United States v. Pillow, 191 F.3d 403, 407 (4th Cir. 1999), the Fourth Circuit explained:
As the plain language of the statute makes clear, § 3553(e) allows for a departure from, not the removal of, a statutorily required minimum sentence. See Melendez v. United States, 518 U.S. 120, 128, 116 S.Ct. 2057, 135 L.Ed.2d 427 (1996) (describing § 3553(e) motion as a departure). That the resulting “sentence” must be imposed in accordance with the Sentencing Guidelines and policy statements does not mean, as Pillow contends, that the resulting sentence becomes the guideline sentence and, therefore, the starting point for the § 5K1.1 departure. Rather, the phrase simply means that the district court’s discretion in choosing a sentence after the Government moves to depart below the statutorily required minimum sentence is constrained by the Sentencing Guidelines and policy statements. Specifically, the district court should use the factors listed in § 5K1.1(a)(1)-(5) as its guide when it selects a sentence below the statutorily required minimum sentence. See Melendez, 518 U.S. at 129 & n. 10, 116 S.Ct. 2057 (noting that the Application Notes to the Sentencing Guidelines suggest that a district court should consider the § 5K1.1(a) factors in determining the extent of a departure below the statutorily required minimum sentence).
The court later reiterated that finding, and drew support from decisions in other circuits, in United States v. Hood, 556 F.3d 226, 234 n. 2 (4th Cir. 2009):
We have previously held, however, that in determining the extent of a departure below a statutory minimum a district court should look to the substantial assistance factors listed in U.S.S.G. § 5K1.1(a) United States v. Pillow, 191 F.3d 403, 407 (4th Cir. 1999). Moreover, the weight of authority in other circuits undercuts Hood’s contention; in short, the extent of a § 3553(e) departure is based solely on the defendant’s substantial assistance and other factors related to that assistance. See United States v. Richardson, 521 F.3d 149, 159 (2d Cir. 2008) (“When . . . the Guidelines sentence ends up as the statutory minimum, both the decision to depart and the maximum permissible extent of this departure below the statutory minimum may be based only on substantial assistance to the government and on no other mitigating considerations”); United States v. Williams, 474 F.3d 1130, 1130-31 (8th Cir. 2007) (“Where a court has authority to sentence below a statutory minimum only by virtue of a government motion under § 3553(e), the reduction below the statutory minimum must be based exclusively on assistance-related considerations”); United States v. Desselle, 450 F.3d 179, 182 (5th Cir. 2006) (“We thus join the majority of circuits in holding that the extent of a . . . § 3553(e) departure must be based solely on assistance-related concerns”); United States v. Auld, 321 F.3d 861, 867 (9th Cir. 2003) (“[I]n fixing a substantial assistance departure . . . [t]he district court may not . . . consider factors unrelated to the defendant’s assistance”).
The uniformity of the circuit courts in this regard has continued unabated:
We note that every circuit court of appeals to address the issue we face today has held that a court may not use factors unrelated to a defendant’s assistance to the government in reducing the defendant’s sentence below the statutory minimum. See [United States v.] Johnson, 580 F.3d [666, ] 673 [(7th Cir. 2009)]; United States v. Jackson, 577 F.3d 1032, 1036 (9th Cir. 2009); United States v. Burns, 577 F.3d 887, 894 (8th Cir. 2009) (en banc); United States v. Hood, 556 F.3d 226, 234 n. 2 (4th Cir. 2009); A.B., 529 F.3d at 1280–83; United States v. Richardson, 521 F.3d 149, 159 (2d Cir. 2008); United States v. Mangaroo, 504 F.3d 1350, 1355–56 (11th Cir. 2007); Williams, 474 F.3d at 1132; United States v. Desselle, 450 F.3d 179, 182 (5th Cir. 2006); United States v. Bullard, 390 F.3d 413, 416 (6th Cir. 2004); [United States v.] Ahlers, 305 F.3d [54, ] 56-62 [(8th Cir. 2007)]. Today, we join our sister circuit courts of appeals in so holding.
United States v. Winebarger, 664 F.3d 388, 396 (3d Cir. 2011).
There are cases under Rule 35(b) holding that a court may look to § 3553(a) factors in determining the extent of a sentence reduction, but those cases uphold decisions to grant a smaller reduction than requested by the parties. In Davis, 679 F.3d at 196-97, a case which did not involve a mandatory minimum sentence, the district court granted a motion for a Rule 35(b) reduction, considering factors such as the nature of the offense, criminal history, and the fact of a prior § 5K1.1 departure in deciding how much of a reduction to grant and, ultimately, in limiting the amount of the reduction. Somewhat ironically, Davis argued on appeal that the trial court erred in considering factors other than his substantial assistance.
The Davis court first distinguished between the district court’s decision of whether to grant a Rule 35(b) motion and its determination of the extent of any reduction. As to the decision whether to grant, the court explained that it held in United States v. Clawson, 650 F.3d 530, 537 (4th Cir. 2011), that “when deciding whether to grant a Rule 35(b) motion, a district court may not consider any factor other than the defendant’s substantial assistance to the government.” Davis, 679 F.3d at 195 (emphasis in original). The court found that Clawson was not controlling “because the issue Davis raises is precisely that which Clawson expressly does not consider: whether the district court erred in considering other sentencing factors contained in 18 U.S.C. § 3553(a) in determining the extent of a sentence reduction.” Id. (emphasis in original). That question, it noted, was “an issue of first impression in the Fourth Circuit.” Id.
The court continued its analysis by looking to the plain language of Rule 35(b)(1), which provides that “[u]pon the government’s motion made within one year of sentencing, the court may reduce a sentence if the defendant, after sentencing, provided substantial assistance in investigating or prosecuting another person.” It found that “[n]othing in the plain language of Rule 35(b) restricts the district court from considering other factors when determining the extent of the sentence reduction.” Id. at 196. The court further explained:
[A]llowing the district court to consider all relevant sentencing factors is consistent with the broad discretion afforded to the district court during sentencing. See Cunningham v. California, 549 U.S. 270, 285, 127 S.Ct. 856, 166 L.Ed.2d 856 (2007) (quoting United States v. Booker, 543 U.S. 220, 233, 125 S.Ct. 738, 160 L.Ed.2d 621) (“We have never doubted the authority of a judge to exercise broad discretion in imposing a sentence within the statutory range.”). Additionally, 18 U.S.C. § 3553(a) states that the sentencing court “shall consider” the litany of sentencing factors listed by the statute, including “the nature and circumstances of the offense and the history and characteristics of the defendant.” 18 U.S.C. § 3553(a)(1).
Were we to agree with Davis’ position – that the district court can only consider the extent of his cooperation when deciding how much to reduce his sentence – we would void the court’s ability to use its discretion in balancing the sentencing factors to determine an appropriate sentence. For example, the sentencing judge could be presented with a Rule 35(b) motion based on the significant cooperation of a mass murderer or, like Davis, a repeat offender with a violent history. Should we hold that the court is prohibited from considering factors other than substantial assistance in determining the extent by which to reduce the defendant’s sentence, it would not be permitted to select a sentence based on the continuing danger the defendant poses to society, the heinous nature of his crimes, or other factors relevant to determine an appropriate sentence for the offense committed. Nothing in Rule 35 or its authorizing statute, 18 U.S.C. § 3553(e), requires that the district court adjudicate in such an abstract vacuum.
The court concluded that district courts can consider § 3553(a) factors “when deciding the extent of [a] sentence reduction after granting [a] Rule 35(b) motion.” Id. at 197. It observed, moreover, that this conclusion was consistent with those reached by other circuit courts addressing the same issue:
The Seventh, Eighth, Ninth, Tenth, and Eleventh Circuits have all explicitly held that the district court had full authority under Rule 35(b) and correctly considered factors other than the substantial assistance when deciding the extent of the sentencing reduction. See United States v. Rublee, 655 F.3d 835, 839 (8th Cir. 2011) (“[A court’s] decision to limit the § 3553(e) reduction, as opposed to extending it further downward, need not be based only on factors related to the assistance provided.”); [United States v.] Chapman, 532 F.3d [625, ] 629 [(7th Cir. 2008)] (“[W]e conclude that the district court did not act in violation of the law when it considered the defendants’ prior criminal histories and the seriousness of their offenses in determining the extent of the reductions granted under Rule 35(b).”); [United States v.] Doe, 351 F.3d [929, ] 933 [(9th Cir. 2003)] (“[A] district court’s consideration of relevant factors other than a defendant’s substantial assistance to the government is a proper exercise of its discretion.”); United States v. Neary, 183 F.3d 1196, 1197– 98 (10th Cir. 1999) (finding that consideration of other factors when determining the extent of the Rule 35(b) reduction is not facially illegal); United States v. Manella, 86 F.3d 201, 205 (11thCir. 1996) (“Rule 35(b) does not prohibit the consideration of [the § 3553(a)] factors in deciding to what extent a defendant’s sentence should be reduced for substantial assistance.”).
Davis, 679 F.3d at 196-97 (footnote omitted).
Davis, therefore, stands for the proposition that, in limiting the amount of a sentence reduction under Rule 35(b), a trial court may properly look to factors other than a defendant’s cooperation with the government. As explained by the Eighth Circuit, this differs significantly from the district court’s discretion under § 3553(e):
As Rublee notes, “a reduction in sentence based on § 3553(e) may be based only on assistance-related considerations.” United States v. Williams, 474 F.3d 1130, 1131 (8th Cir. 2007); accord [United States v.] Burns, 577 F.3d [887, ] 894 [(8th Cir. 2009)]; [United States v.] Jensen, 586 F.3d [620, ] 623 n. 2 [(8th Cir. 2009)]. Likewise, the Government, in deciding whether to bring a Rule 35(b) motion, must consider reasons related only to the defendant’s substantial assistance. United States v. Anzalone, 148 F.3d 940, 941 (8th Cir. 1998). However, as in this case, the Government may make a Rule 35(b) motion based on the defendant’s substantial assistance and then “advise the sentencing court if there are unrelated factors . . . that in the government’s view should preclude or severely restrict any downward departure relief, ” in which case the district court “may of course weigh such alleged conduct in exercising its downward departure discretion.” Anzalone, 148 F.3d at 942. If the court decides to grant the Rule 35(b) motion, its decision to limit the § 3553(e) reduction, as opposed to extending it further downward, need not be based only on factors related to the assistance provided.
Rublee, 655 F.3d at 839.
The instant defendant is, of course, before the court for initial sentencing, and the issue, assuming the Government makes a motion under § 3553(e), will be whether and how much of a departure to grant. Under these circumstances, the court is limited to considering the factors under § 5K1.1 in determining the extent of any departure under the mandatory minimum.
As other courts have done, I will apply the following procedure. First, I will determine the appropriate guideline range, including all appropriate guideline issues except substantial assistance. If that range is above the mandatory minimum, I will decide whether to vary based on application of the § 3553(a) factors. Any downward variance will be limited by the mandatory minimum. Then I will consider any motion under § 5K1.1 and § 3553(e) to determine whether to depart below the mandatory minimum and, if so, by how much. See, e.g., United States v. Newhouse, --- F.Supp.2d ---, 2013 WL 346432, at *4 (N.D.Iowa Jan. 30, 2013).