F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
APR 25 2000
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
No. 99-2136
GUILLERMO VALENTIN
MALDONADO-ACOSTA,
Defendant - Appellant.
Appeal from the United States District Court
for the District of New Mexico
(D.C. No. CR-98-429-MV)
SUBMITTED ON THE BRIEFS:
F. Mario Ortiz, Las Cruces, New Mexico, for the appellant.
John J. Kelly, US Attorney, and Fred J. Federici, Assistant US Attorney,
Albuquerque, NM, for the appellee.
Before BRISCOE, ANDERSON and LUCERO, Circuit Judges.
LUCERO, Circuit Judge.
United States Sentencing Guideline (“U.S.S.G.”) § 5K1.1 specifically states
that a downward sentencing departure for substantial assistance to the government
may be granted “upon motion by the government.” We have held that the
government’s motion for a departure for substantial assistance “is an unequivocal
condition precedent; the [sentencing] court may not act sua sponte in such
matters.” United States v. Vargas, 925 F.2d 1260, 1267 (10th Cir. 1991). This
Circuit has not yet decided, however, in the wake of Koon v. United States, 518
U.S. 81 (1996), which interpreted the general “other grounds for departure”
provision of the Guidelines, U.S.S.G. § 5K2.0, whether a sentencing court has the
authority to grant a defendant a downward departure for substantial assistance to
the government without the required motion from the government pursuant to
§ 5K1.1. Joining the other circuits that have considered this issue, we conclude
that § 5K1.1’s specific consideration of substantial assistance precludes its
consideration under § 5K2.0. We exercise jurisdiction pursuant to 28 U.S.C.
§ 1291 and affirm.
I
After pleading guilty to conspiracy with intent to distribute cocaine and
possession with intent to distribute cocaine, defendant-appellant Guillermo
Valentin Maldonado-Acosta was sentenced to 135 months imprisonment. He had
assisted agents with a controlled delivery and entered into a plea agreement under
which the government in its discretion could move the district court for a § 5K1.1
reduction. At sentencing, the government did not move for this reduction because
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Maldonado-Acosta “failed to fulfill his obligation [under the plea agreement] by
failing to disclose and identify the source for the cocaine.” (I. R. Doc. 56 at 3.)
Maldonado-Acosta filed a motion to compel performance of the plea
bargain, requesting that the district court grant him a downward departure for
substantial assistance even without a motion from the government under § 5K1.1.
The district court denied the motion and this appeal followed.
II
We review for clear error the district court’s factual findings regarding
sentencing and review de novo its legal interpretation of the Guidelines. See
United States v. Henry, 164 F.3d 1304, 1310 (10th Cir.), cert. denied, 119 S. Ct.
2381 (1999). Section 5K1.1 of the Guidelines states:
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.
As Maldonado-Acosta acknowledges, sentencing courts generally have no
authority to compel the government to file a downward departure motion under
§ 5K1.1 or to grant a downward departure under that section without a
government motion. See United States v. Perez, 955 F.2d 34, 35 (10th Cir. 1992).
The government’s motion “is an unequivocal condition precedent [and] the court
may not act sua sponte” to determine that a defendant provided substantial
assistance to the government. Vargas, 925 F.2d at 1267. This condition
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precedent limits the district court’s authority and “gives the Government a power,
not a duty, to file a motion when a defendant has substantially assisted.” Wade v.
United States, 504 U.S. 181, 185 (1992).
There are exceptions to the general rule that a district court cannot grant a
sentencing reduction for substantial assistance without a motion from the
government. A district court can review the government’s discretionary refusal to
file a substantial assistance motion: “(1) if the refusal violates an agreement with
the government; (2) if the refusal was based on an unconstitutional motive such as
the defendant’s race or religion; or (3) in an egregious case where the prosecution
stubbornly refuses to file a motion despite overwhelming evidence that the
accused’s assistance has been so substantial as to cry out for meaningful relief.”
United States v. Cerrato-Reyes, 176 F.3d 1253, 1264 (10th Cir. 1999) (internal
quotations and citations omitted). On appeal, however, Maldonado-Acosta does
not seek review of the government’s discretionary decision under these
exceptions.
Rather, Maldonado-Acosta argues that, under the rationale of Koon v.
United States, 518 U.S. at 81, a sentencing court may grant a substantial
assistance departure without a motion from the government pursuant to U.S.S.G.
§ 5K2.0. He reasons that rendering substantial assistance, but not receiving a
reduction pursuant to § 5K1.1, can be a factor that takes his case outside the
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“heartland” because otherwise his sentence would conform to sentences of other
defendants convicted of the same offense who have not rendered substantial
assistance.
As interpreted by Koon, § 5K2.0 permits the sentencing court to depart
from the sentence imposed by the Guidelines if “certain aspects of the case [are]
unusual enough for it to fall outside the heartland of cases in the Guideline.” Id.
at 98; see also U.S.S.G. § 5K2.0 (permitting the sentencing court to “impose a
sentence outside the range established by the applicable guidelines, if the court
finds ‘that there exists an aggravating or mitigating circumstance of a kind, or to
a degree, not adequately taken into consideration by the Sentencing Commission
in formulating the guidelines that should result in a sentence different from that
described’”) (quoting 18 U.S.C. § 3553(b)). Even after Koon, however, a
departure for substantial assistance pursuant to § 5K2.0 is not permissible because
departures for substantial assistance are already “adequately taken into
consideration by the Sentencing Commission in formulating the guidelines,”
U.S.S.G. § 5K2.0—specifically, in § 5K1.1. There is, therefore, no warrant under
Koon for treating substantial assistance as a factor appropriate for consideration
under § 5K2.0. This result is in accord with the numerous other circuits that have
likewise held in the wake of Koon that § 5K2.0 does not authorize a sentencing
court to grant a departure for substantial assistance without a motion from the
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government requesting the departure pursuant to § 5K1.1. See United States v.
Cruz-Guerrero, 194 F.3d 1029, 1032 (9th Cir. 1999); United States v. Algeria,
192 F.3d 179, 189 (1st Cir. 1999); In re Sealed Case, 181 F.3d 128, 142 (D.C.
Cir.), cert. denied, 120 S. Ct. 453 (1999); United States v. Solis, 169 F.3d 224,
227 (5th Cir.), cert. denied, 120 S. Ct. 112 (1999); United States v. Abuhouran,
161 F.3d 206, 214 (3d Cir. 1998), cert. denied, 119 S. Ct. 1479 (1999).
The judgement of the district court is AFFIRMED.
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