United States v. Tate

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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued December 7, 2010 Decided January 14, 2011

No. 09-3052

UNITED STATES OF AMERICA,
APPELLEE

v.

RASHAAD G. TATE, ALSO KNOWN AS RAH,
APPELLANT

Consolidated with No. 09-3055

Appeals from the United States District Court
for the District of Columbia
(No. 1:08-cr-00312)

Sandra G. Roland, Assistant Federal Public Defender,
argued the cause for appellant Rashaad G. Tate. With her on the
briefs was A. J. Kramer, Federal Public Defender. Neil H.
Jaffee, Assistant Federal Public Defender, entered an
appearance.
 2

Kavita Kumar Puri argued the cause for appellant Richard
E. Young. With her on the brief were Justin S. Antonipillai,
appointed by the court, and Wells C. Bennett.

Benjamin L. Eisman, Assistant U.S. Attorney, argued the
cause for appellee. With him on the brief were Ronald C.
Machen Jr., U.S. Attorney, and Elizabeth Trosman, Chrisellen
R. Kolb, and Gregory G. Marshall, Assistant U.S. Attorneys.
Roy W. McLeese III, Assistant U.S. Attorney, entered an
appearance.

Before: ROGERS, TATEL and KAVANAUGH, Circuit Judges.

Opinion for the Court by Circuit Judge ROGERS.

ROGERS, Circuit Judge: Appellants Rashaad G. Tate and
Richard E. Young challenge their sentences and seek remands
for resentencing. Upon reviewing the requirements of Rule 51
of the Federal Rules of Criminal Procedure for preserving error
and 18 U.S.C. § 3553(a) for sentencing defendants, and of 18
U.S.C. § 3553(f)(5) for eligibility for safety-valve sentencing,
we affirm.

I.

Tate and Young were indicted on a single count of unlawful
distribution of five grams or more of cocaine base on May 6,
2008, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B)(iii),
and 18 U.S.C. § 2. Tate was also indicted for the same offense
committed on May 14, 2008.

The government’s evidentiary proffers stated that on May
6, 2008, a confidential informant had called Tate about
purchasing 62 grams of crack cocaine. Tate said he would
contact Young, and later told the informant where and when to
 3

meet Young. When the meeting occurred Young told the
confidential informant that he did not have 62 grams at that time
and sold 34.3 grams to the informant for $1,200. On May 14,
2008, Tate sold the confidential informant an additional 29.1
grams of cocaine base for $1,000. The proffer regarding Tate
also referred to the May 14, 2008 sale and to 178 cell-phone
conversations between Tate and Young between April 25, and
May 7, 2008. Each proffer stated that it was “not intended to
constitute a complete statement of all facts known by [each]
defendant or the Government, but is a minimum statement of
facts intended to provide the necessary factual predicate for the
guilty plea[s].”

Tate pleaded guilty to a single count and was sentenced to
100 months’ imprisonment and 48 months’ supervised release,
and was ordered to pay a $100 special assessment. Young also
pleaded guilty and was sentenced to the mandatory minimum of
60 months’ imprisonment and 60 months’ supervised release,
and was ordered to pay a $100 special assessment.

II.

Tate contends that he is entitled to a remand for
resentencing on three grounds of procedural error, because the
district court: (1) mistakenly believed that the 2007 amendment
to the crack guideline in the United States Sentencing
Guidelines (“U.S.S.G.”) had reduced the crack-to-powder
disparity from 100 to 1 to a disparity “in the neighborhood” of
20 to 1 when the amendment brought the disparity to 70 to 1 as
applied to Tate’s offense level1; (2) believed it lacked discretion

1
The 2007 amendment to the crack cocaine guideline maintained a
disparity ranging from 25 to 1 to 80 to 1 depending on the offense
level. U.S. SENT’G GUIDELINES MANUAL § 1B1.1 app. C, amdts. 706,
711 (2007); see Kimbrough v. United States, 552 U.S. 85, 106 (2007).
 4

to impose a non-guideline sentence based solely on its policy
disagreement with the crack-to-powder disparity; and (3)
imposed a greater sentence than was necessary on the
assumption that the crack guideline would change in the future
and that the court would have the opportunity to “redo” the
sentence. Tate does not contend his sentence was substantively
unreasonable, and he acknowledges that his third claim is raised
for the first time on appeal and reviewable only for plain error.
The government maintains that all of Tate’s challenges are
advanced “for the first time on appeal,” Appellee’s Br. 24, and
therefore subject to plain error review, see FED. R. CRIM. P.
52(b); United States v. Coles, 403 F.3d 764, 767 (D.C. Cir.
2005), which he fails to show.

Rule 51 of the Federal Rules of Criminal Procedure
provides, in relevant part, that exceptions to the district court’s
rulings or orders are unnecessary, and that claims of error are
preserved when a party informs the district court of the
requested action, or of the objection and the grounds therefor.2
United States v. Wilson, 605 F.3d 985, 1022 (D.C. Cir. 2010).
The point of requiring objections to be made at the time of
sentencing is to afford the district court the opportunity to
consider them, not to clutter the proceedings with needless

2
Rule 51 provides, in relevant part:
(a) Exceptions Unnecessary. Exceptions to rulings or orders
of the court are unnecessary.
(b) Preserving a Claim of Error. A party may preserve a
claim of error by informing the court – when the court ruling
or order is made or sought – of the action the party wishes the
court to take, or the party’s objection to the court’s action and
the grounds for that objection. * * * *

FED. R. CRIM. P. 51.
 5

objections after the district court has ruled. In re Sealed Case,
349 F.3d 685, 690 n.2 (D.C. Cir. 2003). Indeed, Rule 51(b) was
adopted in part to eliminate the necessity of redundant
exceptions to rulings. 3B CHARLES A. WRIGHT ET AL., FEDERAL
PRACTICE & PROCEDURE § 841 (3d ed. 2004). Thus, in United
States v. Rashad, 396 F.3d 398, 401 (D.C. Cir. 2005), the court
stated that “[a]ll a defendant need do to preserve a claim of error
. . . is inform the [district] court and opposing counsel of the
ruling he wants the court to make and the ground for so doing.”
Other circuits have adopted similar approaches to this long-
standing rule. In United States v. Ortiz, 431 F.3d 1035, 1039
(7th Cir. 2005), the court stated that “when a defendant
consistently disputes an issue, and the district court does not
specifically elicit objections to the adequacy of the findings, the
defendant is not required to interpose a further objection to the
adequacy of the district court’s findings after the district court
has ruled.” So too in United States v. Castillo, 430 F.3d 230,
243 (5th Cir. 2005), the court held that where the prosecutor had
repeatedly made his position known but never objected to the
sentence imposed and the district court had made clear its
disagreement with the prosecutor’s position, “requiring a formal
objection by the prosecutor . . . would have been futile, would
not have served the purposes behind requiring contemporaneous
objections, and would have clearly ‘exalt[ed] form over
substance.’”

Tate’s counsel informed the district court that he believed
the crack-to-powder cocaine disparity was between 60 and 80 to
1, not 20 to 1, and counsel requested imposition of a sentence
for Tate no higher than the mandatory minimum pursuant to the
district court’s discretion to vary from the Guidelines, citing
Spears v. United States, 129 S. Ct. 840 (2009). Having stated
the facts and the law regarding the disparity and having
requested that the district court exercise its discretion to
sentence Tate based on a different crack-to-powder ratio,
 6

counsel preserved Tate’s first two claims of error and counsel
was not obligated to object when the district court rejected his
request for a sentence at the mandatory minimum. Our review
of these claims, therefore, is for abuse of discretion. See Gall v.
United States, 552 U.S. 38, 46 (2007). Our review of purely
legal questions is de novo, see United States v. Bridges, 175
F.3d 1062, 1065 (D.C. Cir. 1999), for “[a] district court by
definition abuses its discretion when it makes an error of law,”
Koon v. United States, 518 U.S. 81, 100 (1996). We review the
district court’s findings of fact for clear error and accord “due
deference” to the district court’s application of the Guidelines to
found facts. See United States v. Erazo, No. 10-3012, slip op. at
5 (D.C. Cir. circulated to the full court December 22, 2010)
(internal citations and quotation marks omitted).

Although Tate’s first two challenges were properly
preserved, he fails to show legal error by the district court on
either.

First, prior to accepting his guilty plea, the district court
advised Tate that the Guidelines were “just recommendations,”
and that it would first look to the Guidelines and then proceed
to analyze the factors in 18 U.S.C. § 3553(a) to impose a
sentence “sufficient but not greater than necessary” to
accomplish the goals of sentencing. Tr. 5 (Feb. 27, 2009).
When Tate’s counsel argued at the sentencing hearing for
imposition of the mandatory minimum sentence, the district
court challenged counsel’s assumption that the disparity
between crack and powder cocaine was 100 to 1, noting the
Sentencing Commission’s amendment to the Guidelines in 2007
and inquiring whether, in view of the two-level reduction in the
offense level, the disparity was 20 to 1. Tate’s counsel informed
the district court that the recalibration had not brought the
disparity down to 20 to 1 but “more like between 60 to 80 to 1.”
Tr. 10 (May 7, 2009). The district court responded, “it’s not
 7

exactly 20 to 1 as you point out. But it is in that neighborhood.”
Id.

On the latter sentence, and specifically on the last word,
hangs Tate’s first claim of error. He contends this statement
indicates that the district court misunderstood the applicable law
and such a procedural error requires resentencing because at 20
to 1, the applicable guideline range would have been 70 to 87
months’ imprisonment, not 100 to 125 months’. Because a 20
to 1 disparity (70–87 months) cannot reasonably be said to be
“in the neighborhood of” either 60 or 80 to 1, Tate maintains
that the district court erred as a matter of law, and that his
sentence is procedurally unreasonable, in violation of due
process and the requirement of section 3553(a) that a sentence
be no greater than necessary.

The ensuing sentencing proceedings, however, show that
unlike in King v. Hoke, 825 F.2d 720 (2d Cir. 1987), on which
Tate relies, where there was clear evidence that the district
court’s sentence was motivated by an error of law, id. at 722, the
district court’s motivation for imposing a within-Guidelines
sentence of 100 months was based on Tate’s escalating criminal
conduct within a brief period of time. Considering Tate’s
counsel’s argument for imposition of the mandatory minimum
sentence of 60 months’ imprisonment, the district court stated:

the problem I have with your argument is that . . . Mr.
Tate was on probation from D.C. when he committed
the crime in Maryland. He was on release pending
appeal from that crime when he committed these
crimes in the District of Columbia. That is so much
recidivism in such a short period of time. Talk about
somebody who has not quite gotten there yet to have
respect for law, and it’s that record even more than the
quantities [of cocaine] here. The quantities here are
 8

significant as well, but it’s the speed of that record that
is to me quite alarming and makes it difficult to
sentence him to just a mandatory minimum.

Tr. 13–14 (May 7, 2009).3 The district court noted that Tate had
demonstrated “progress” in the seriousness of his crimes. Tr.
22 (May 7, 2009).

The prosecutor agreed that Tate’s criminal conduct, as
revealed in his record, constituted a “case specific aggravating
factor which justifies opposition to variance,” and did not
warrant the requested “substantial variance . . . from the
[G]uidelines,” Tr. 16 (May 7, 2009), notwithstanding statements
by Executive Branch officials to Congress that the sentencing
disparity should be eliminated. The district court confirmed
with the prosecutor that the Commission’s 2007 amendment had
reduced the guideline range from 121–151 months to 100–125

3
According to the government’s sentencing memorandum, Tate was
convicted in Maryland in 2003 for recklessly driving a vehicle while
under influence of alcohol, in the course of which Tate’s vehicle
struck a police car and led police on a chase at speeds reaching 140
miles per hour. In 2005 he was arrested in the District of Columbia
and pleaded guilty to three misdemeanor offenses based on his
possession of a semiautomatic weapon with an obliterated serial
number, loaded with hollow-point ammunition. Ten months later,
while on probation in the District of Columbia, he was arrested in
Maryland for possession of another loaded semiautomatic weapon
with an obliterated serial number and 63 grams of cocaine packaged
in 36 bags; he pleaded guilty in September 2007 to two felony charges
of possession with the intent to distribute cocaine and possession of a
firearm with a nexus to drug trafficking and was sentenced to
concurrent five year terms of imprisonment. Within eight months,
while still on probation in the District of Columbia conviction and free
on an appeal bond in the Maryland conviction, Tate committed the
crimes in the instant case.
 9

months and sentenced Tate to 100 months’ imprisonment. Tate
thus fails to show a legal error by the district court. See United
States v. Pickett, 475 F.3d 1347, 1352 (D.C. Cir. 2007).

Second, Tate’s related claim that the district court erred by
failing to appreciate that it could impose a non-guideline
sentence based solely on its disagreement with the crack-to-
powder disparity also fails. Tate’s counsel cited Spears, 129 S.
Ct. 840, in urging the district court to exercise its discretion to
impose the mandatory minimum sentence. The district court, in
reviewing the section 3553(a) factors, expressed concern about
the disparity, but recognized that it had discretion to vary below
the Guidelines range. It did not vary below the Guidelines,
however, in view of Tate’s criminal history. That conclusion
was not an abuse of discretion as Tate’s criminal record supports
the district court’s finding that it “ha[d] no reasonable basis to
depart from the [G]uidelines.” Tr. 25 (May 7, 2009).

Finally, Tate fails to show that the district court plainly
erred, see Coles, 403 F.3d at 767, in stating that it was “acting
on the assumption,” Tr. 25 (May 7, 2009), that the Sentencing
Commission would implement a retroactive amendment to the
crack guideline and that it would not oppose resentencing Tate
in that event. He relies on cases arising under Federal Rule of
Criminal Procedure 35 where, for example in United States v.
Drown, 942 F.2d 55, 59 (1st Cir. 1991), the proceedings
indicated that the prosecutor’s strategy to postpone its evaluation
of a defendant’s assistance until his services were completed in
another proceeding “improperly merge[d] the temporal
boundaries” of U.S.S.G. § 5K1.1’s reward for presentencing
assistance and Rule 35’s reward of subsequent assistance. In
contrast, the record shows that the district court’s reason for not
imposing the mandatory minimum sentence on Tate was not
premised on its future reduction pursuant to Rule 35, as in
United States v. Recla, 560 F.3d 539, 546 (6th Cir. 2009),
 10

United States v. Barnette, 427 F.3d 259, 262 (4th Cir. 2005), and
United States v. Bureau, 52 F.3d 584, 595 (6th Cir. 1995), but
on Tate’s “alarming” criminal background. Tr. 14 (May 7,
2009).

III.

Young, also seeking resentencing, contends that the district
court erred in ruling that he was required to debrief the
government in order to qualify for safety-valve treatment. Our
review of this legal question is de novo. See Erazo, No. 10-
3012, slip op. at 5.

Section 3553(f) of Title 18 provides for a limitation on the
applicability of a mandatory minimum sentence where the
district court finds that a defendant meets five conditions. At
issue here is the fifth condition which provides:

Not later than the time of the sentencing hearing, the
defendant has truthfully provided to the Government
all information and evidence the defendant has
concerning the offense or offenses that were part of the
same course of conduct or of a common scheme or
plan, but the fact that the defendant has no relevant or
useful other information to provide or that the
Government is already aware of the information shall
not preclude a determination by the court that the
defendant has complied with this requirement.

18 U.S.C. § 3553(f)(5).

The plain text of the statute does not require a debriefing,
i.e., a face-to-face interrogation with government prosecutors.
Id.; see U.S.S.G. § 5C1.2(5). As several circuit courts of appeal
have observed, the statute does not specify the form, place, or
 11

manner of disclosure, and a defendant may comply without
submitting to a debriefing. United States v. Altamirano-
Quintero, 511 F.3d 1087, 1092 n.7 (10th Cir. 2007); United
States v. Schreiber, 191 F.3d 103, 108 (2d Cir. 1999); United
States v. Montanez, 82 F.3d 520, 522 (1st Cir. 1996). Nor
apparently does the legislative history specify a form or place.
United States v. Ramirez, 94 F.3d 1095, 1100 (7th Cir. 1996);
Montanez, 82 F.3d at 522. That a proffer of information is
written rather than oral is of no consequence because the safety-
valve provision focuses on the completeness and truthfulness of
the information provided by a defendant. United States v.
Mejia-Pimental, 477 F.3d 1100, 1107 n.12 (9th Cir. 2007);
United States v. Tournier, 171 F.3d 645, 647 (8th Cir. 1999).
One circuit has suggested that “[a]s a practical matter, a
defendant who declines to offer himself for a debriefing takes a
very dangerous course” because, for instance, reliance on “a
letter runs an obvious and profound risk: The government is
perfectly free to point out the suspicious omissions at
sentencing, and the district court is entitled to make a common
sense judgment.” Montanez, 82 F.3d at 523. Although
“[d]ebriefing by the Government plays an important role in
permitting a defendant to comply with the disclosure
requirement,” it is not a prerequisite to safety-valve
consideration. United States v. Beltran-Ortiz, 91 F.3d 665, 669
& n.4 (4th Cir. 1996).

The government properly acknowledges on appeal that a
debriefing is not required to fulfill the disclosure requirements
under section 3553(f)(5). See Appellee’s Br. 36. Before the
district court, however, the government argued that a debriefing
was required to qualify for safety-valve sentencing. The district
court ruled by order of May 12, 2009 that because “a defendant
seeking the benefit of the [s]afety [v]alve must go through the
process of talking with he the Government,” and Young had not
done so, he was not entitled to a sentence below the mandatory
 12

minimum. At the subsequent and final hearing, the district court
stated:

I think that a full debriefing . . . in the normal sense of
the word would not be necessarily required, but an
affirmative sharing of information [is], what the
defendant knows about the crime with which he’s been
charged and to which he’s entered a plea, what he
knows about the drugs and sources and things like that
must be provided to the government before a defendant
is entitled to the safety valve.

Tr. 3–4 (June 2, 2009). Before imposing sentence, the district
court inquired whether Young wanted time to think about what
he wanted to do. Young’s counsel, after conferring with his
client, advised the district court that “Mr. Young is ready to go
forward with sentencing.” Id. at 5.

On appeal Young nonetheless contends that the district
court imposed an in-person debriefing requirement to qualify for
safety-valve sentencing. He points not only to the district
court’s statement at the initial sentencing hearing but to the
district court’s statement to Young shortly after the above-
quoted statement, in the final minutes of his sentencing hearing,
that “you either have to talk to the government, and tell them
everything you know, or I will sentence you to the mandatory
minimum of 60 months.” Id. at 4. Young overreads the district
court’s last statement about his choice. Where the district court
had moments before disavowed a debriefing requirement, the
words “talk” and “tell,” which have less specific definitions than
the word “debriefing,”4 and imply a more informal exchange of

4
According to MERRIAM WEBSTER’S COLLEGIATE DICTIONARY (10th
ed. 1993), the word “debrief” means “to interrogate (as a pilot) upon
return (as from a mission) in order to obtain useful information.” Id.
 13

information, could not convey imposition of a formal debriefing
requirement. Although the district court might again have made
this explicit, the record demonstrates an understanding of usage
that is consistent with the district court’s disavowal of a
debriefing requirement. In Young’s presence his counsel had
offered at the initial sentencing hearing to “tell the Court” and
the prosecutor about Young’s other drug sales, Tr. 4 (May 8,
2009), contemplating disclosure in a form other than through a
debriefing, a disclosure during a (presumably sealed) hearing
before the district court.

Young also contends that but for the asserted debriefing
requirement error he would have received safety-valve treatment
because his agreement to the government’s factual proffer upon
entering his guilty plea was all that was required. He
acknowledges, however, that he had the burden to establish by
a preponderance of evidence that he was entitled to safety-valve
relief. See United States v. Gales, 603 F.3d 49, 52–53 (D.C. Cir.
2010) (quoting United States v. Mathis, 216 F.3d 18, 29 (D.C.
Cir. 2000)). Given that he does not dispute that he declined to
provide any information to the government, whether by
debriefing or otherwise, the district court’s conclusion that his
stipulation to the government’s factual allegations in the plea
proffer was neither candid nor complete is not clearly erroneous
and its denial of safety-valve sentencing is properly accorded
deference.

Generally, a defendant’s agreement with the factual
allegations in a government plea proffer is considered
insufficient to fulfill the requirements of section 3553(f)(5) to
the extent it is limited to a recitation of the defendant’s own
actions in the crime charged, United States v. Gutierrez-

at 297. The relevant meaning of “talk” is simply “to convey
information or communicate in any way.” Id. at 1202.
 14

Maldonado, 328 F.3d 1018, 1019 (8th Cir. 2003), and fails to
disclose information about co-conspirators, United States v.
O’Dell, 247 F.3d 655, 675–76 (6th Cir. 2001); United States v.
Wrenn, 66 F.3d 1, 2–3 (1st Cir. 1995), much less about the
defendant’s chain of distribution, United States v. Arrington, 73
F.3d 144, 148 (7th Cir. 1996). In Gales, this court took a similar
approach, stating that “the district court . . . was entitled to
consider the government’s point” that during a debriefing the
defendant’s inability to identify more concretely his supplier
was simply not credible “and make reasonable inferences from
the evidence.” 603 F.3d at 54 (citing Montanez, 82 F.3d 520,
where the defendant unsuccessfully relied on a letter to the
government about the drug sales while omitting who supplied
him with the drugs). In United States v. Evans, 216 F.3d 80, 91
(D.C. Cir. 2000), this court affirmed the denial of safety-valve
treatment in view of sufficient record evidence that the
defendant knew, but had not fully disclosed, inter alia, the
nature and source of his drug supply. Accord United States v.
Rodriguez, 69 F.3d 136, 143 (7th Cir. 1995) (same).

Young responds that the district court erred in foreclosing
safety-valve sentencing without first finding that the proffer was
incomplete, that there was information beyond the proffer in his
possession, or that his account was less than credible. Section
3553(f)(5) requires the district court to determine if the
defendant has truthfully provided all information. As the First
Circuit explained in United States v. Miranda-Santiago, 96 F.3d
517 (1st Cir. 1996), where a defendant had offered “a facially
plausible tale of limited involvement”:

The government cannot assure success simply by
saying, “We don’t believe the defendant,” and doing
nothing more. If it could, it would effectively
eliminate the self-conscious difference between the
safety valve provision, U.S.S.G. § 5C1.2, which
 15

obligates the district court to determine if the defendant
has truthfully provided all information, and the
substantial assistance provision, U.S.S.G. § 5K1.1,
which permits, upon the government’s motion and at
the court’s discretion, a downward adjustment for
certain defendants who[m] [the government has
determined] have provided substantial assistance to the
government.”

Id. at 529 (internal citation omitted); accord Gales, 603 F.3d at
52. Further, the court explained, section 3553(f)(5) “does not
invite . . . speculation” because “[i]f mere conjecture based on
personal relationships could bar application of section
3553(f)(5), [then] in all cases where minor participants knew
others more involved, the safety valve provision would be
beyond their grasp.” Miranda-Santiago, 96 F.3d at 529. As this
“was not intended by Congress,” the court concluded, the
district court’s “bare conclusion that [the defendant] did not
‘cooperate fully,’ absent either specific factual findings or easily
recognizable support in the record, cannot be enough to thwart
[the defendant’s] effort to avoid imposition of a mandatory
minimum sentence.” Id. at 529–30.

There is “easily recognizable support in the record,” id. at
529, for the district court to have been unpersuaded that Young
had made a full disclosure in the absence of some form of
communication to the government. Although Young’s
memorandum in aid of sentencing stated that “[t]he government
was already aware of the codefendant’s drug practices, and
therefore, there was nothing new for Mr. Young to report,” and
that he had “told everything that he knew about the May 6, 2008
sale,” Mem. in Aid of Sentencing at 4, drug paraphernalia –
Pyrex glasses and a scale coated with white residue – was found
during a search of Young’s residence. Tr. 11 (Feb. 9, 2009). At
the initial sentencing hearing Young’s counsel offered to
 16

provide, in exchange for safety-valve sentencing, additional
information regarding “the extent of [Young’s] drug selling in
the District of Columbia.” Tr. 4 (May 8, 2009). Indeed,
counsel’s statement was equivocal in arguing not that Young did
not possess information regarding his supplier but that he was
not required to provide such information to the government
under section 3553(f)(5). Id. Additionally, the proffer itself
made Young’s claim implausible. According to the proffer,
Young was able to provide and sell 34.3 grams of crack cocaine
within a matter of hours of receiving Tate’s call. Young either
had information about the source of the drugs he sold to the
confidential informant or, alternatively, was in a position to say
why he had no such information.

Accordingly, we affirm the judgments of conviction.