UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 97-20273
UNITED STATES OF AMERICA,
Plaintiff - Appellant,
-
VERSUS
RUMALDO SOLIS,
Defendant - Appellee.
Appeal from the United States District Court
for the Southern District of Texas
March 8, 1999
Before SMITH, DUHÉ, and WIENER, Circuit Judges.
DUHÉ, Circuit Judge:
The United States asks us to reconsider and vacate our opinion
in United States v. Solis, 161 F.3d 281 (5th Cir. 1998). Upon
reconsideration, we vacate our prior opinion and substitute the
following.1
BACKGROUND
The United States (“Government”) appeals the district court’s
decision to depart downward five levels based on Rumaldo Solis’s
1
In our prior opinion, we relied on and adopted the D.C.
Circuit’s opinion in In re Sealed Case, 149 F.3d 1198 (D.C. Cir.
1998), vacated in part by 159 F.3d 1362 (D.C. Cir. 1998). The D.C.
Circuit vacated the relevant part of its opinion and reheard the
case en banc but has not yet released its en banc opinion.
(“Solis”) assistance to the prosecution and to sentence him at
offense level 32. The Government contends that Solis should have
been sentenced at offense level 35.
Solis is a former Immigration and Naturalization Inspector who
was involved in a major drug conspiracy through which cocaine and
marijuana were imported into the United States. Solis provided
drug traffickers with information on law enforcement activities and
also served as a narcotics broker. He pled guilty pursuant to a
plea agreement which provided that the Government would move for a
downward departure under U.S.S.G. § 5K1.1 if it determined that he
provided substantial assistance.
Prior to sentencing, the Government indicated that it would
not move for a downward departure. Solis moved for a safety valve
adjustment under U.S.S.G. § 5C1.2. Despite the Government’s
refusal to make a § 5K1.1 motion, the district court granted Solis
a five-level downward departure. In granting the adjustment, the
court stated that although it did not know what questions were
asked or what information was sought from Solis, it appeared from
the affidavit submitted in support of his motion that discussions
occurred in many areas relevant to the investigation, sufficient to
establish substantial assistance.
The Government unsuccessfully objected to the court’s
application of § 5C1.2, arguing that it did not allow the court to
depart from the Sentencing Guidelines (“Guidelines”). Contending
that the district court should have granted only a two-level
2
reduction under U.S.S.G. § 2D1.1(b)(6), the Government appeals.
DISCUSSION
We review a district court’s findings of fact for clear error
and its application of the Sentencing Guidelines de novo. United
States v. Stevenson, 126 F.3d 662, 664 (5th Cir. 1997). Downward
departures under U.S.S.G. § 5K2.0 are reviewed for abuse of
discretion. See United States v. Lugman, 130 F.3d 113, 115 (5th
Cir. 1997), cert. denied, 118 S.Ct. 1855 (1998)(citing Koon v.
United States, 116 S.Ct. 2035, 2047 (1996)). Section 5K2.0 allows
courts to depart from the applicable Guideline range under certain
circumstances. A sentence will be upheld on review unless it was
“imposed in violation of law; imposed as a result of incorrect
application of the sentencing guidelines; or outside the range of
the applicable sentencing guideline and is unreasonable.” United
States v. Garcia, 962 F.2d 479, 480-81 (5th Cir. 1992).
The district court granted Solis a five-level downward
departure pursuant to § 5C1.2. “[Section] 5C1.2 is a ‘safety
valve’ provision which allows qualified defendants to escape the
applicable statutory minimum sentence.” U.S. v. Edwards, 65 F.3d
430, 433 (5th Cir. 1995). In this case, however, the Guideline
range is higher than the statutory minimum and, thus, § 5C1.2 does
not apply.2 Therefore, it was error for the district to depart
2
It is undisputed that Solis was entitled to a two-level
reduction under U.S.S.G. § 2D1.1(b)(6) because he met the criteria
set forth in § 5C1.2.
3
from the Guidelines pursuant to § 5C1.2. See U.S. v. Flanagan, 80
F.3d 143, 147 n.4 (5th Cir. 1996).
Because the district court misapplied § 5C1.2, a “remand is
appropriate unless [we] conclude[], on the record as a whole, that
the error was harmless, i.e., that the error did not affect the
district court’s selection of the sentence imposed.” Williams v.
U.S., 112 S.Ct. 1112, 1120-21 (1992). For the following reasons,
we conclude that the district court’s error affected the sentence
imposed and, therefore, vacate and remand.
The sentencing transcript shows that the downward departure
was largely based on Solis’s assistance to the Government. The
court noted that, according to the Defendant’s affidavit, Solis was
debriefed on four occasions on a substantial number of topics.
Concluding that these debriefings covered topics that were relevant
to the investigation, the court granted the defense motion for a
five-level downward departure.
“Absent a motion for downward departure made by the
Government, a sentencing court is without authority to grant a
downward departure on the basis of substantial assistance under §
5K1.1.” United States v. Price, 95 F.3d 364, 367 (5th Cir. 1996);
see also Wade v. United States, 112 S.Ct. 1840, 1843 (1992)
(stating that “upon motion of the [G]overnment” is a condition
limiting the court’s authority to depart under § 5K1.1).
Similarly, in Melendez v. United States, 116 S.Ct. 2057, 2063
4
(1996), the Supreme Court read § 5K1.1 as “permitting the district
court to depart below the Guidelines range when the Government
states that the defendant has provided substantial assistance and
requests or authorizes the district court to depart below the
Guidelines range.”
“[Section] 5K1.1 does not require the [G]overnment to move for
a downward departure if the defendant provides substantial
assistance, but rather grants the [G]overnment discretionary power
to make such a motion.” United States v. Garcia-Bonilla, 11 F.3d
45, 46 (5th Cir. 1993). There are two limitations on the
Government’s discretion. First, a district court may review the
Government’s refusal to move for a downward departure if the
refusal is based on an unconstitutional motive. See Price, 95 F.3d
at 368. Second, “the [G]overnment may bargain away its discretion
under the terms of a plea agreement, and thereby obligate itself to
move for a downward departure in exchange for the defendant’s
substantial assistance.” Id. Neither of these exceptions is
applicable to the case at bar. The Government retained sole
discretion over its decision whether or not to make a § 5K1.1
motion, and Solis has not alleged that the Government’s refusal to
do so was for unconstitutional reasons.
Solis argues that the district court had the authority to
depart from the Guidelines under § 5K2.0 even though the Government
refused to make a § 5K1.1 motion. Under § 5K2.0, a sentencing
court:
5
[M]ay impose a sentence outside the range established by
the applicable guideline, 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.”
U.S.S.G. § 5K2.0 (quoting 18 U.S.C. § 3553(b)). We conclude that
a district court has no more authority to depart for substantial
assistance under § 5K2.0 that it has under § 5K1.1.
In United States v. Abhouran, 161 F.3d 206, 213 (3rd Cir.
1998), the Third Circuit considered whether § 5K2.0, as interpreted
by Koon, gives a district court any additional authority to
consider a downward departure for substantial assistance in cases
where the Government refuses to file a § 5K1.1 motion. The court
noted that “[a] district court cannot consider a factor already
taken into account in the Guidelines unless ‘the factor is present
to an exceptional degree or in some other way makes the case
different from the ordinary case where the factor is present.’” Id.
at 213-14 (quoting Koon v. United States, 116 S.Ct. 2035, 2045
(1996)). Reasoning that substantial assistance is taken into
account by the Guidelines in § 5K1.1, the court concluded that a
district court may depart on the basis of substantial assistance
under § 5K2.0 only in cases where a departure without a Government
motion is permitted under § 5K1.1. See id. The court stated:
The heartland of § 5K1.1 is where the defendant
substantially assists the [G]overnment. We think that
the only cases falling outside this heartland are those
cases in which the [G]overnment improperly--either
because it has an unconstitutional motive or because it
6
has acted in bad faith with regard to a plea agreement--
refuses to offer a motion, and possibly those in which
the assistance is not of the sort covered by § 5K1.1.
Id. at 214.
We are persuaded by the Third Circuit’s reasoning in Abhouran
and, therefore, hold that § 5K2.0 does not afford district courts
any additional authority to consider substantial assistance
departures without a Government motion.3 Because the Government
did not bargain away its discretion to refuse to offer a § 5K1.1
motion and Solis has not alleged that the Government refused to
offer the motion for unconstitutional reasons, the district court
erred by granting a five-level downward departure.
CONCLUSION
We vacate Appellee’s sentence and remand for re-sentencing.
VACATED and REMANDED.
3
In Abhouran, the court noted that, even when the Government
retains “sole discretion” over whether or not to offer a § 5K1.1
motion, district courts may depart in cases where the Government
refuses to offer the motion in bad faith. Abhouran, 161 F.3d at
212. We disagree with this portion of the court’s opinion. In
cases “where the plea agreement expressly states that the
government retains ‘sole discretion’ over the decision as to
whether or not to submit a motion, we have held that a refusal to
do so is reviewable only for unconstitutional motive.” Price, 95
F.3d at 368.
7