United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
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Argued January 27, 2000 Decided March 14, 2000
No. 97-3104
In re: Sealed Case
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Appeal from the United States District Court
for the District of Columbia
(No. 96cr00095-01)
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Evelina J. Norwinski, Assistant Federal Public Defender,
argued the cause for appellant. A.J. Kramer, Federal Public
Defender, Carmen D. Hernandez and Reita Pendry, Assis-
tant Federal Public Defenders were on the briefs.
Elizabeth H. Danello, Assistant U.S. Attorney, argued the
cause for appellee. With her on the brief were Wilma A.
Lewis, U.S. Attorney, John R. Fisher and Patricia Stewart,
Assistant U.S. Attorneys.
Before: Edwards, Chief Judge, Ginsburg and Rogers,
Circuit Judges.
Opinion for the Court filed by Circuit Judge Rogers.
Rogers, Circuit Judge: In In re Sealed Case No. 97-3112
(Sentencing Guidelines' "Substantial Assistance"), 181 F.3d
128 (D.C. Cir. 1999) (in banc), the court held that a district
court may not invoke s 5K1.1 of the U.S. Sentencing Guide-
lines ("U.S.S.G." or "the Guidelines") to sentence a criminal
defendant below the guideline range for the prescribed of-
fense except upon motion by the government " 'stating that
the defendant has provided substantial assistance in the
investigation or prosecution of another person who has com-
mitted an offense.' " Id. at 130 (quoting U.S.S.G. s 5K1.1,
p.s. (1997)). Appellant contends that there is an exception to
the motion requirement where the assistance relates to a
District of Columbia offense, and hence the district court
erred in denying his departure request. Specifically, he
contends that the term "offense" in s 5K1.1 refers solely to
federal offenses, and that he thus may receive a departure
below the level prescribed by the Guidelines on the basis of
his assistance to law enforcement officers with regard to a
homicide prosecution under the District of Columbia Code,
even though the government never filed a motion in support
of such departure. Because appellant never presented this
argument to the district court, our review is for plain error
and we find none.
I.
"[A] request for an adjustment under the Guidelines is
[forfeited] if the argument is not made at sentencing," and
this court "will review sentencing issues raised for the first
time on appeal [only] for 'plain error.' " United States v.
Foster, 988 F.2d 206, 209 (D.C. Cir. 1993); see United States
v. Klat, 156 F.3d 1258, 1267 (D.C. Cir. 1998) (plain error
review applied to departures as well as adjustments not
requested in the district court); United States v. Ortez, 902
F.2d 61, 64 (D.C. Cir. 1990); see also United States v. Olano,
507 U.S. 725, 731 (1993). While our plain error review in the
sentencing context requires a "slightly less exacting" showing
of prejudice than for trial errors, see United States v. Saro,
24 F.3d 283, 287 (D.C. Cir. 1994), an appellant must still show
that "from the perspective of the trial court[,] the error [was]
'so "plain" [that] the trial judge and prosecutor were derelict
in countenancing it, even absent the defendant's timely assis-
tance in detecting it.' " Id. at 286 (quoting United States v.
Frady, 456 U.S. 152, 163 (1982)).
0
Appellant pleaded guilty to one count of a ten count
indictment, and was sentenced to 57 months' imprisonment
after receiving a downward departure under United States v.
Smith, 27 F.3d 649 (D.C. Cir. 1994). In appealing his sen-
tence, he concedes that in seeking a downward departure for
cooperation that he had provided to the government in con-
nection with a homicide prosecution in the Superior Court of
the District of Columbia, he did not specifically argue in the
district court that s 5K1.1 was inapplicable because his coop-
eration related to a non-federal offense. The closest he came
to raising the issue was when he stated in his first memoran-
dum in aid of sentencing that "under U.S.S.G. s 5K2.0 ...
[his] assistance augurs in favor of a downward departure."1
Appellant made no mention of s 5K1.1 as a separate ground
and did not explain why s 5K2.0 authorized departure in his
case. In his second memorandum in aid of sentencing he
argued that s 5K1.1 was invalid because Congress had man-
dated that departures based upon cooperation with the gov-
ernment be addressed through sentencing guidelines while
s 5K1.1 is a policy statement,2 and that the district court
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1 Section 5K2.0 identifies "some of the factors that the [U.S.
Sentencing] Commission has not been able to take into account fully
in formulating the [G]uidelines", in order to provide guidance to
courts in applying 18 U.S.C. s 3553(b)(1997). Thus the Guideline,
in discussing s 3553(b), states that a court:
may 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 Sen-
tencing Commission in formulating the guidelines that should
result in a sentence different from that described.'
U.S.S.G. s 5K2.0, p.s. (1997) (quoting 18 U.S.C. s 3553(b)).
2 This argument has since been rejected by In re Sealed Case No.
97-3112, 149 F.3d 1198, 1200-01 (D.C. Cir. 1998), vacated in part on
other grounds, 159 F.3d 1362 (D.C. Cir. 1998). See also In re
Sealed Case No. 97-3112, 181 F.3d at 131 n.3. Furthermore, the
argument is unpersuasive on its face, inasmuch as Congress ex-
pressly authorized the Sentencing Commission to issue general
policy statements regarding application of the Guidelines. See 28
U.S.C. s 994(a)(2)(1993). Indeed, the court's language in rejecting
this position was unequivocal: "we have no doubt that the Commis-
sion's decision to issue a policy statement rather than a guideline in
response to section 994(n) amounted to a permissible, if not the only
reasonable, construction of the statute." In re Sealed Case No.
97-3112, 149 F.3d at 1201.
thus retained general authority under 18 U.S.C. s 3553(b) to
depart on the basis of his cooperation, even absent a govern-
ment motion for departure. At a subsequent hearing, the
district court rejected appellant's s 5K1.1 argument, ruling
that it lacked authority to depart on the basis of appellant's
cooperation "in the absence of a 5K1.1 letter" from the
government. Thus, appellant never argued to the district
court that s 5K1.1, or any other authority, authorized depar-
ture absent a government motion because of the non-federal
case on which appellant assisted the government.
On appeal appellant contends only that the district court
erred in failing to depart under s 5K2.0, given the non-
federal nature of the offense on which he assisted the govern-
ment. Yet contrary to appellant's apparent position, it is not
enough for purposes of preserving an argument for appeal for
the defendant to discuss the general circumstances of his case
without in some manner signaling to the district court how
those circumstances bear on the district court's authority to
grant a downward departure request in the absence of a
government motion. As the court has recently observed in
an analogous case:
To be sure, Vizcaino was not required to state the issue
as clearly as appellate counsel has, or, for that matter,
even to cite to section 5K2.0 in order to preserve the
issue for appeal. But absent any statement that the
district court could have reasonably interpreted as argu-
ing that crack so distorted the sentence as to take it out
of the Guidelines' heartland, we cannot conclude that
Vizcaino preserved the issue.
United States v. Vizcaino, No. 99-3033, 2000 WL 126769, at
*3 (D.C. Cir. Feb. 15, 2000) (and distinguishing United States
v. Beckham, 968 F.2d 47 (D.C. Cir. 1992)). So too here,
appellant never made the argument to the district court that
he raises on appeal, and to the extent that he referred to
s 5K2.0 and s 3553(b), he never suggested to the district
court why either would entitle him to a departure because of
his non-federal cooperation, while his reliance on the latter
was based upon an argument since rejected by this court.
See supra note 2. Therefore, because the issue of whether
the district court had authority to depart under s 5K2.0
based on appellant's assistance on a non-federal offense was
never presented in the district court, it was forfeited and our
review is for plain error. See Vizcaino, 2000 WL 126769, at
*3; Saro, 24 F.3d at 286.
The only question, therefore, is whether it was incumbent
on the district court sua sponte to consider whether s 5K1.1
was inapplicable to appellant's request for departure based
upon his cooperation in connection with a homicide prosecu-
tion under District of Columbia law because the issue was
"plain," that is, either because the language of s 5K1.1 distin-
guished between federal and local offenses, or there was
persuasive judicial authority for making that distinction, or
the legal norm at issue was absolutely clear. See United
States v. Merlos, 8 F.3d 48, 51 (D.C. Cir. 1993). Appellant
does not suggest that the latter consideration is relevant
here, and we agree. Thus, absent clear language in the
Guidelines, or precedent from the Supreme Court, this court,
or another circuit court of appeals at the time of appellant's
sentencing that s 5K1.1 applied only to cooperation in con-
nection with federal offenses, it would seem to follow that the
"failure to recognize authority to depart ... falls far short of
plain error." Vizcaino, 2000 WL 126769, at *3.
The language of s 5K1.1 makes no distinction between
local and federal offenses and merely uses the term "offense":
"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." U.S.S.G. s 5K1.1
(first paragraph). Essentially, appellant maintains that ac-
cording to the definition of "offense" in the Commentary to
s 1B1.1,3 the meaning of that term as used in s 5K1.1 must
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3 The commentary to s 1B1.1 provides in relevant part:
"Offense" means the offense of conviction and all relevant
conduct under s 1B1.3 (Relevant Conduct) unless a different
meaning is specified or is otherwise clear from the context.
The term "instant" is used in connection with "offense," "feder-
al offense," or "offense of conviction" as the case may be, to
be determined contextually; that is, in appellant's view, the
narrow definition of "offense" in s 1B1.1 "does not fit the
s 5K1.1 formulation" because it refers to the offense of
conviction rather than the offense to which assistance was
provided. Because, appellant maintains, the Guidelines al-
ways refer expressly to non-federal offenses when they are to
be included in the term "offense," the unadorned use of that
term in s 5K1.1 should be interpreted to refer only to federal
offenses. Appellant also relies on the fact that the Guidelines
have sometimes included a separate definition when offenses
under state, tribal, or military law are to be included. Yet for
plain error purposes it is not obvious that offenses under
District of Columbia law are excluded from s 5K1.1.
First, the second sentence in the definition commentary to
s 1B1.1 indicates that the term "offense" is broader than
federal offenses. That explicit statements exist in other
sections of the Guidelines describing the covered offenses to
include non-federal offenses is hardly dispositive on plain
error review. Compare s 5K2.9 p.s. and s 5G1.3(b) with
s 2K2.1, comment (nn.7 & 14); s 4A1.1, comment (backg'd).
Indeed, to the extent that appellant relies on "[t]he legislative
antecedents of s 5K1.1," he suggests that there is nothing
obvious in s 5K1.1 to show that it excludes District of Colum-
bia offenses.
Second, appellant's reliance on context is self-defeating.
Because of the unique prosecutorial arrangement in the Dis-
trict of Columbia, a sentencing judge in this district would be
particularly unlikely to see obvious error in applying s 5K1.1
to cooperation involving local prosecutions. Unlike other
districts in which the role of the United States Attorney does
not blur the distinction between federal and state prosecu-
tions, the United States Attorney for the District of Columbia
serves as both a federal and District of Columbia prosecutor
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distinguish the violation for which the defendant is being
sentenced from a prior or subsequent offense, or from an
offense before another court (e.g. an offense before a state
court involving the same underlying conduct).
U.S.S.G. s 1B1.1, comment (n.1(l )).
and even has authority to join local offenses to federal
charges. See D.C. Code ss 23-101(c),(d)(1981) (ann.).
Finally, appellant has not pointed to a single case decided
before his sentencing that supported his interpretation of
s 5K1.1. In fact, as of appellant's sentencing, the Second,
Third, and Ninth Circuits had all rejected his argument. See
United States v. Kaye, 65 F.3d 240, 242 (2d Cir. 1995),
vacated, 140 F.3d 86 (2d Cir. 1998); United States v. Emery,
34 F.3d 911, 913 (9th Cir. 1994); United States v. Love, 985
F.2d 732, 733 (3d Cir. 1993). Indeed, appellant's counsel
conceded during oral argument in this court that there was
no judicial authority whatsoever in his favor at the time of his
sentencing. Although the Second Circuit later reconsidered
its decision and adopted appellant's interpretation of s 5K1.1,
this decision upon reconsideration came after appellant was
sentenced and therefore does not influence our review for
plain error.
Because neither the language of s 5K1.1 nor judicial or
other authority in existence at the time of appellant's sentenc-
ing would have caused the district court on its own to have
considered that there might be such an issue in appellant's
favor, much less apposite authority even now to demonstrate
plain error, the district court did not plainly err in denying
appellant's request for a downward departure under s 5K2.0.
Accordingly, without reaching the merits of appellant's under-
lying legal argument, we affirm the judgment of conviction.