In Re: Sealed Case

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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 18, 2003 Decided November 25, 2003

No. 02-3065

IN RE: SEALED CASE

Appeal from the United States District
Court for the District of Columbia
(No. 00cr00425–21)

Stephen C. Leckar, appointed by the court, argued the
cause for the appellant.
Patricia A. Heffernan, Assistant United States Attorney,
argued the cause for the appellee. Roscoe C. Howard, Jr.,
United States Attorney, and John R. Fisher and Kenneth F.
Whitted, Assistant United States Attorneys, were on brief.
Before: SENTELLE, HENDERSON and TATEL, Circuit Judges.
Opinion for the court filed by Circuit Judge HENDERSON.
KAREN LECRAFT HENDERSON, Circuit Judge: Following an
undercover investigation into a cocaine distribution network
in the Washington Metropolitan area, the appellant was ar-

Bills of costs must be filed within 14 days after entry of judgment.
The court looks with disfavor upon motions to file bills of costs out
of time.
 2

rested in October 2000 on a parole violation and was charged
in December 2000 along with twenty-four other people in a
seventy-one count indictment. In July 2001, he pleaded
guilty to conspiring to possess and distribute between 50 and
150 grams of cocaine in violation of 21 U.S.C. §§ 841 & 846, a
crime that carries a mandatory minimum sentence of ten
years. 21 U.S.C. § 841(b)(1)(A). In June 2002, the district
court sentenced the appellant to a 65–month term of impris-
onment, after granting the government’s motion for a down-
ward departure pursuant to 18 U.S.C. § 3553(e) and section
5K1.1 of the United States Sentencing Guidelines (Guidelines
or U.S.S.G.). On appeal, the appellant claims that the sen-
tencing court erred by failing to make sufficient findings
regarding his requests for a downward adjustment to his base
offense level pursuant to U.S.S.G. § 3B1.2 and for a down-
ward departure from his criminal history category pursuant
to U.S.S.G. § 4A1.3. We reject both claims and affirm the
district court’s sentence.

I. BACKGROUND
In the December 2000 indictment, the appellant was
charged with four separate offenses: conspiring to distribute
cocaine base, cocaine and marijuana; unlawfully possessing
with intent to distribute 5 grams or more of cocaine base;
unlawful possession of ammunition by a fugitive; and unlaw-
ful possession of marijuana. In June 2001, he reached an
agreement with the government to plead guilty to conspiring
to distribute, and to possess with intent to distribute, between
50 and 150 grams of cocaine base, in violation of 21 U.S.C.
§ 846. As part of the plea agreement, the appellant agreed
to cooperate with the government and, depending on the
nature of that cooperation, the government agreed to move
for a downward departure pursuant to 18 U.S.C. § 3553(e)
and/or U.S.S.G. § 5K1.1. The appellant further agreed not to
seek any downward adjustment or departure from his appli-
cable sentencing range other than one based on his role in the
offense pursuant to section 3B1.2 and the government main-
tained the right to oppose such an adjustment at sentencing.
 3

On July 17, 2001, the appellant pleaded guilty to conspiring
to distribute, and to possess with intent to distribute, between
50 and 150 grams of cocaine base. The presentence report
calculated his base offense level at 32 and awarded him a 3–
point downward adjustment pursuant to U.S.S.G. § 3E1.1
based on his guilty plea. The report did not recommend any
role-in-the-offense adjustment to the appellant’s offense level.
Because his ‘‘involvement in the conspiracy was a pro-active
and profitable one’’ and he actively conspired to distribute
over 50 grams of cocaine base in the Washington Metropoli-
tan area, the probation officer did not find the appellant
qualified for a role-in-the-offense downward adjustment. Ap-
pellant’s App. (App.) 133. On the other hand, because he did
not ‘‘exercise[ ] any managerial or supervisory role within the
conspiracy,’’ the report concluded that his ‘‘level of partic-
ipation [in the conspiracy] d[id] not warrant an aggravating
TTT role [upward] adjustment’’ pursuant to section 3B1.1 App.
132.
In calculating the appellant’s criminal history category, the
report noted that he had two prior criminal convictions, one in
1994 for possession of cocaine and one in 1995 for carrying a
firearm without a license. The convictions gave the appellant
a criminal history score of four, which placed him in criminal
history category III. The report also noted numerous other
arrests from the time the appellant was 10 years old. Based
on an adjusted offense level of 29 and a criminal history
category of III, the appellant’s guideline range stood at 108 to
135 months’ imprisonment. Because the statutory mandatory
minimum sentence for the appellant’s base offense is 10
years, 21 U.S.C. §§ 841(b)(1)(A), however, his minimum
guideline range could not go below 120 months; thus his
applicable sentencing range was 120 to 135 months. U.S.S.G.
§ 5G1.1(c)(2).
In an undated letter to the probation officer, then-defense
counsel1 made several objections to the presentence report.
In addition to correcting various factual errors, she claimed
that the appellant deserved a four-level downward adjustment
1 The appellant is represented by a different lawyer on appeal.
 4

pursuant to section 3B1.2(a) because he sold drugs for the
conspiracy’s principal distributor ‘‘to pay off a drug debt and
later forwarded street buyers to [the distributor] and in
return received small quantities of crack cocaine for his
personal use.’’ App. 93. Because, she argued, ‘‘[r]ole in the
offense determinations are based on a comparison between a
defendant and the other persons in the instant offense[, a]s
compared to others in the charged conspiracy, [the appellant]
was at the very bottom.’’ App. 94. She concluded: ‘‘No way
[the appellant] could be seen as having anything but [a] minor
role in the instant offense.’’ Id.
In addition, defense counsel claimed the appellant’s ‘‘crimi-
nal history points significantly over-represent ‘the seriousness
of the defendant’s criminal history or the likelihood that the
defendant will commit further crimes’ ’’ and therefore pro-
posed a downward departure from criminal history category
III pursuant to U.S.S.G. § 4A1.3. App. 95. She also asked
the court to consider a downward departure based on his
difficult childhood (U.S.S.G. § 5K2.0) and on threats his drug
distributor allegedly made to him (U.S.S.G. § 5K2.12). All
told, defense counsel requested a ‘‘sentence of time served’’—
which at the time amounted to roughly 20 months—plus
probation. App. 96.
In an addendum to the presentence report dated June 13,
2002, the probation officer noted the appellant’s proposed
revisions regarding his role in the offense and criminal histo-
ry but maintained that none was appropriate. With regard to
the section 3B1.2 adjustment, the addendum stated that the
appellant ‘‘actively engaged in a conspiracy to distribute
cocaine base for over two years. Furthermore, the defendant
acknowledged during the presentence interview that he con-
tinued to sell drugs for [the conspiracy’s wholesale distribu-
tor], beyond just paying off a drug debt. The defendant
engaged in repeated, ongoing drug distribution activities for
one of the main players in this conspiracy.’’ App. 148. With
regard to the section 4A1.3 criminal history departure, the
officer concluded that the appellant’s ‘‘criminal history catego-
ry accurately reflects the seriousness of [his] criminal history,
 5

and most especially in this case, the likelihood that he will
commit further crimes.’’ App. 148.
Shortly after the presentence report was finalized, the
government filed a motion pursuant to 18 U.S.C. § 3553(e)
and U.S.S.G. § 5K1.1 for a downward departure based on the
appellant’s ‘‘substantial assistance’’ to the government. Ac-
cording to the government, the appellant had participated in
approximately three meetings with its investigators and ulti-
mately provided information regarding the identity of the
assailant in an unsolved, 1999 homicide. Based on the appel-
lant’s information, the motion stated, the Metropolitan Police
Department was subsequently able to confirm the assailant’s
identity and close that investigation.
Before sentencing and by undated letter to the court,
defense counsel requested that the court sentence the appel-
lant to time served plus five years of probation and repeated
her objections to the presentence report. The letter con-
ceded that the appellant’s ‘‘limited participation in the con-
spiracy limited his ‘usefulness’ to the government’’ but also
highlighted the fact that the appellant was ‘‘eventually TTT
able to provide the government information about an unrelat-
ed crime’’ and that the government had filed a motion for a
downward departure based on his assistance. App. 99. The
letter also repeated the appellant’s request for a downward
adjustment pursuant to § 3B1.2 as well as for the downward
departures originally sought. Relying on caselaw from other
federal circuits, defense counsel claimed that because the
appellant was ‘‘peripheral to the success of the [overarching]
conspiracy,’’ the ‘‘low man on the indictment,’’ and just ‘‘a
crack head,’’ a four-level downward adjustment pursuant to
U.S.S.G. § 3B1.2(a) was appropriate. App. 100–01 (emphasis
in original). Under a heading labeled ‘‘factors that may
warrant a departure,’’ defense counsel argued that the appel-
lant was entitled to a criminal history downward departure
pursuant to U.S.S.G. § 4A1.3(e)—because his criminal history
score of 4 was the result of two misdemeanor convictions—as
well as downward departures pursuant to §§ 5K2.0 and
5K2.12. App. 101–02. The government did not respond to
the letter.
 6

The appellant appeared for sentencing before the district
court on June 21, 2002. The court began by granting the
government’s substantial assistance motion. The ruling ap-
peared to take defense counsel by surprise for she addressed
the court as follows: ‘‘Your honor, as we stand here today,
the Court having granted the motion for departure, I guess
the only thing we’re really talking about is whether [the
court] would go as low as [the appellant] would like which
would be the time served or to some interim position.’’ App.
158. She appealed for leniency based on the appellant’s
difficult upbringing and the changes that he had made in his
life since being incarcerated. She concluded by stating that
he ‘‘was a minor player in this conspiracy and I know he does
have a number of arrests but all and all he is not the person I
normally see with criminal history of three. Thank you.’’
App. 163. During her extended argument, she never men-
tioned a section 3B1.2 adjustment, a section 4A1.3 criminal
history departure or downward departures pursuant to sec-
tions 5K2.0 and 5K2.12.
After defense counsel finished and before the government
took its turn, the court interjected that, while the government
could proceed as it intended, the court sought specific guid-
ance regarding where the appellant stood in relation to the
several other people involved in the overall conspiracy, includ-
ing one defendant who had gone to trial and one defendant
whom the court had already sentenced. The court stated
that it sought some ‘‘rationality’’ in sentencing so many
people and that it wanted to avoid ‘‘the possibility’’ that, in
applying the Guidelines, ‘‘a bigger fish could be sentenced to
less punishment than a smaller fish.’’ App. 164. The court
therefore directed the government ‘‘in this case as well as all
others’’ to ‘‘express based upon the evidence TTT [where] on
that continuum each defendant is.’’ Id.
The government responded that the appellant ‘‘was an
average player in this conspiracy. He was neither at the top
nor at the bottom.’’ Id. According to the government, the
evidence at trial would have shown that the appellant was
‘‘somewhere in the middle’’ of the broad conspiracy, which the
government then summarized: ‘‘There were several individu-
 7

als at the top who we would call suppliers of the organization
who didn’t actually stand on the street and distribute hand-to-
hand. Then there were some individuals involved who were
merely one or two time couriers who would probably fall at
the bottom of the conspiracy.’’ Id. The appellant ‘‘was
average in that he was a regular customer of [the wholesale
distributor] and that he distributed street level quantities of
crack cocaine but on a regular basis to make him the average
conspirator.’’ App. 164–65.
The government then proceeded as it had ‘‘intended,’’
which ‘‘was to address several of the issues that [defense
counsel had] raised in her sentencing memo[randum].’’ App.
165. It stated that to the extent the appellant sought a
section 3B1.2 adjustment, the government had already ad-
dressed that claim, adding that the appellant ‘‘was not a
minor or minimal player’’ ‘‘in the conspiracy’’ but instead ‘‘he
was average.’’ Id. It also noted that a comparison of the
appellant to the conspiracy’s wholesale distributor might
make the appellant appear to be a minor participant but that
under the Guidelines the distributor deserved an upward
role-in-the-offense adjustment pursuant to section 3B1.1
whereas an average player like the appellant qualified for
neither an upward nor downward adjustment. The govern-
ment also noted that the appellant’s plea agreement specifi-
cally precluded him from seeking any departures. It then
highlighted his criminal history and the fact that he had been
charged with other crimes in the indictment. The extent of
the court’s substantial assistance departure, the government
urged, should be based on the nature of the appellant’s
cooperation, which was limited to helping to close a homicide
case. It concluded by recommending a sentence range of 78
to 96 months.
In response, defense counsel minimized the appellant’s
criminal record, highlighted that he had cooperated as best he
could and repeated that the time that he had already spent in
prison had allowed him to turn around his life. There was,
she argued, no ‘‘reason to continue his incarceration.’’ App.
173. The court then heard from the appellant and his wife
who both described how incarceration had changed him.
 8

After a short recess, the court sentenced the appellant to a
65–month term of imprisonment followed by a five-year term
of supervised release. In determining the sentence, the court
noted several factors, including that it had taken ‘‘into consid-
eration where in this conspiracy [the appellant] stood’’ and
concluded that ‘‘the prosecutor is right, that is, that [the
appellant was] about the middle.’’ App. 181. The court
noted that it was not the first time the appellant had been in
criminal court and that, regardless of the impressive state-
ments from his wife or his difficult upbringing, he had
nonetheless committed criminal acts.
The court then inquired of all parties whether there was
anything else that needed to be addressed. Defense counsel
answered no. The government, however, noted that defense
counsel had requested a downward adjustment pursuant to
section 3B1.2 and that the government objected to it. The
government presciently stated that it ‘‘would hate for [the
section 3B1.2 adjustment issue] to come back if for some
reason it was raised on appeal.’’ App. 185. The court,
however, rejected the notion: ‘‘All I can say is that I can’t
imagine how it would matter on appeal. I really can’t. And,
frankly, I don’t look for workTTTT I hear what you’re saying.
But I’m not making any findings with respect to this [adjust-
ment]—as a matter of fact, I’m not saying anything more
about that.’’ Id. On the government’s request and with the
appellant’s agreement, the court sealed the record for two
years based on the circumstances of the appellant’s coopera-
tion.

II. DISCUSSION
The appellant claims that the district court erred by failing
to explain its reasoning for rejecting his requests for a four-
point, minimal-participant adjustment to his base offense level
pursuant to section 3B1.2(a) and for a downward departure in
his criminal history category pursuant to section 4A1.3. The
appellant also challenges the court’s denial of a two-point,
minor-participant adjustment to his base offense level pursu-
ant to section 3B1.2(b). We reject his challenges and affirm.
 9

We have previously held that plain error review is appro-
priate when the appellant fails to raise a claim at his sentenc-
ing hearing or when he fails to object to the district court’s
ruling. Fed. R. Crim. P. 52(b); United States v. Dozier, 162
F.3d 120, 125–26 (D.C. Cir. 1998) (‘‘plain error’’ review of
district court’s failure to explain denial of adjustment where
appellant did not object to district court’s ruling); United
States v. Dawson, 990 F.2d 1314, 1316 (D.C. Cir. 1993) (per
curiam) (‘‘We have consistently declared that if a defendant
fails to except to the district court’s ruling on a specific
ground, we will review the district court’s ruling only for plain
error.’’); see United States v. Draffin, 286 F.3d 606, 607–08
(D.C. Cir. 2002) (‘‘plain error’’ review for unrequested down-
ward departure). Here, not only did defense counsel fail to
raise the claims now on appeal at sentencing or object to the
district court’s rulings, she remained silent even after the
government brought up the section 3B1.2 issue at the close of
the hearing. United States v. Pinnick, 47 F.3d 434, 439 (D.C.
Cir. 1995) (‘‘[A]ppellant, not [the appellate court], has the
initial responsibility to ensure that the district court explains
its reasoning for the record, and appellant neglected that
responsibility when he failed to object to the district court’s
ruling.’’).2 Instead, once the court granted the government’s
2 Federal Rule of Criminal Procedure 51 requires a party to
‘‘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.’’ The rule enables ‘‘the trial judge [to]
make[ ] an informed decision, and allows the judge and opposing
counsel to take whatever corrective action is needed.’’ United
States v. Walker, 449 F.2d 1171, 1173 n.6 (D.C. Cir. 1971). In doing
so, it helps ‘‘to achieve efficiency and expedition’’ in the administra-
tion of justice. Jackson v. United States, 386 F.2d 641, 643 (D.C.
Cir. 1967) (per curiam); see also United States v. Yeh, 278 F.3d 9,
14 (D. C. Cir. 2002) (noting that ‘‘it would be both anomalous and
inefficient to place the appellant in a better position [on appeal] for
having neglected to raise a relevant sentencing argument in district
court’’) (internal quotations and alterations omitted). It also pre-
vents the district court from being caught off guard, as it apparent-
 10

substantial assistance motion, defense counsel focused her
argument exclusively on the extent of that departure. Her
reference to the appellant’s role in the conspiracy and to his
criminal record in the course of requesting a ‘‘time-served’’
sentence was wholly insufficient to invoke the specific Guide-
line provisions the appellant raises before us. United States
v. Foster, 988 F.2d 206, 209–10 (D.C. Cir. 1993) (defense
counsel’s general reference to other sentencing claims in
context of extent of court’s downward departure insufficient
to preserve claims); see United States v. Bolla, 346 F.3d
1148, 1152 (D.C. Cir. 2003), United States v. Soto, 132 F.3d
56, 58 (D.C. Cir. 1997). Accordingly, we review for plain
error.3
Under plain error review, ‘‘there must be (1) error, (2) that
is plain, and (3) that affects substantial rights. If all three
conditions are met, an appellate court may then exercise its
discretion to notice a forfeited error, but only if (4) the error
seriously affects the fairness, integrity, or public reputation
of judicial proceedings.’’ United States v. Cotton, 535 U.S.
625, 631 (2002) (internal quotation and citation omitted).
Leaving aside the issue of whether the district court’s failure
to specifically explain its rejection of the appellant’s claims
was, if error at all, ‘‘ ‘so ‘‘plain’’ the trial judge and prosecutor
ly was here when the government brought up the section 3B1.2
adjustment at the conclusion of the hearing.
3 The government does not contend that the appellant’s claims
are unreviewable based on waiver. Cf. Foster, 988 F.2d at 209–10
(concluding departure and adjustment claims not raised at sentenc-
ing ‘‘not reviewable’’ and ‘‘waived’’); see also In re Sealed Case, 108
F.3d 372, 374 (D.C. Cir. 1997) (suggesting strategic decision by
defense counsel at sentencing unreviewable). Relying on this
court’s decision in Pinnick, 47 F.3d at 439, it does assert that his
section 4A1.3 claim is unreviewable because we can presume that
the district court recognized its authority to depart and declined to
do so. See Appellee’s Br. at 42–43. As we recently explained in
Draffin, 286 F.3d at 609–10, however, we will review an unrequest-
ed departure claim for plain error even though, ‘‘as a practical
matter,’’ the result will be the same because it will be ‘‘almost
impossible’’ to show plain error ‘‘in the departure setting.’’
 11

were derelict in countenancing it, even absent the defendant’s
timely assistance in detecting it,’ ’’ United States v. Saro, 24
F.3d 283, 286 (D.C. Cir. 1994) (quoting United States v.
Frady, 456 U.S. 162, 163 (1982)), those claims cannot succeed
because he cannot ‘‘show a reasonable likelihood that the
sentencing court’s obvious errors affected his sentence.’’
Saro, 24 F.3d at 288; Bolla, 346 F.3d at 1153 (noting ‘‘some-
what relaxed standard for showing prejudice under third
prong of the plain error test’’). For starters, once the
sentencing court granted the government’s substantial assis-
tance motion, the appellant sought a ‘‘time-served’’ sen-
tence—roughly 22 months—one far below the applicable ad-
justed 120–135 month range irrespective of any role-in-the-
offense adjustment or criminal history departure. Moreover,
such an adjustment or criminal history departure would have
gained the appellant nothing because, with his criminal rec-
ord, he did not qualify for the ‘‘safety valve provision’’ in 18
U.S.C. § 3553(f) and U.S.S.G. § 5C1.2—which allows certain
first time offenders to avoid a statutory mandatory minimum
sentence. United States v. Robinson, 158 F.3d 1291, 1293–94
(D.C. Cir. 1998) (per curiam) (‘‘[A] court may not sentence a
defendant under the ‘safety valve’ provision when that defen-
dant has more than 1 criminal history point.’’). Thus, re-
gardless of any vertical base-offense level adjustment or hori-
zontal shift in the appellant’s criminal history category, he
nevertheless would have faced a statutory mandatory mini-
mum sentence of 120 months.4 See 21 U.S.C. § 841(b)(1)(A);
U.S.S.G. § 5C1.2(a)(1). The government’s substantial assis-
tance motion provided the only way for him to avoid a ten-
year sentence.5 18 U.S.C. § 3553(e); see United States v.
Melendez, 518 U.S. 120, 126–27 (1996); id. at 133–34 (Breyer,
J.) (concurring in part and dissenting in part).
4 Indeed, the court specifically informed the appellant at the plea

hearing that ‘‘in the absence of a [substantial assistance motion by
the government] the Court will be required to sentence you to at
least ten years in prison.’’ Appellee’s App. at Tab 3, 18–19.
5Although in his sentencing memorandum the appellant had also
sought downward departures pursuant to U.S.S.G. §§ 5K2.0 and
5K2.12, he has not pursued those claims on appeal.
 12

Furthermore, to the extent the district court may have
considered and rejected a role-in-the-offense adjustment in
deciding the extent of the substantial assistance departure,
any error it committed inured to the appellant’s benefit. We
have held that the correct measure of a section 3B1.2 down-
ward adjustment to a defendant’s base offense level is the
relevant conduct that establishes his base offense level.
United States v. Olibrices, 979 F.2d 1557, 1560 (D.C. Cir.
1992); see id. at 1561 (‘‘[A] defendant is not entitled to have
her sentence reduced for a minimal role in relevant conduct
that had no part in the calculation of the base level.’’); United
States v. Graham, 317 F.3d 262, 272 (D.C. Cir. 2003) (‘‘The
determination of whether a defendant is eligible for a down-
ward adjustment under Section 3B1.2 depends in large part
on a determination of the amount of relevant conduct for
which the defendant is being held responsible.’’). The appel-
lant’s relevant conduct is the conspiracy to which he pleaded
guilty—conspiring to distribute between 50 and 150 grams of
cocaine base—and not the conduct of all of the other partici-
pants in the broad conspiracy charged in the indictment.
That the district court concluded the appellant was in ‘‘the
middle’’ of the larger conspiracy could only mean that it
would have also concluded he was more than a minimal or
minor participant in the conspiracy for which he was being
held criminally responsible. App. 181. The larger conspiracy
involved the distribution of large quantities of illegal drugs,
multiple firearms, stolen goods and hundreds of thousands of
dollars of cash. If the appellant was an average player in
that conspiracy, he could hardly be a bit player in the smaller
conspiracy.

III. CONCLUSION
For the foregoing reasons, the judgment of the district
court is
Affirmed.