In re: Sealed Case

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 8, 2005 Decided May 23, 2006

No. 04-3015

IN RE: SEALED CASE

Appeal from the United States District Court
for the District of Columbia
(No. 00cr00252-01)

Mary E. Davis, appointed by the court, argued the cause for
appellant. With her on the brief was Christopher M. Davis.

Patricia A. Heffernan, Assistant U.S. Attorney, argued the
cause for appellee. With her on the brief were Kenneth L.
Wainstein, U.S. Attorney, John R. Fisher, Assistant U.S.
Attorney at the time the brief was filed, Elizabeth Trosman, and
Martin D. Carpenter, Assistant U.S. Attorneys.

Before: HENDERSON and GRIFFITH, Circuit Judges, and
WILLIAMS, Senior Circuit Judge.

GRIFFITH, Circuit Judge: Appellant pled guilty to leading
a criminal enterprise that distributed significant quantities of
heroin. In return, the Government promised that in exchange for
Appellant’s help, it would file a motion recommending that he
be sentenced to a term below the life sentence called for by 21
U.S.C. § 848(b) and Section 5G1.1(b) of the United States
Sentencing Guidelines. Appellant rendered the promised help
 2

and the Government filed the promised motion, but Appellant,
dissatisfied with the Government’s recommended sentence,
which the District Court accepted, challenges his conviction and
sentence on appeal. We affirm his conviction because the
Government met its obligations under the plea agreement. We
also affirm the District Court’s sentence because it was not
“imposed in violation of law.”

I.

Appellant directed a massive heroin distribution ring in the
Washington, D.C. metropolitan area from 1996 to 2000. By the
time the Government arrested Appellant, his criminal enterprise
had distributed 222 kilograms—almost 500 pounds—of heroin.
In August 2000, a federal grand jury sitting in Washington, D.C.
returned a three-count indictment charging him with: (1)
engaging in a continuing criminal enterprise, which carried a
mandatory sentence of life imprisonment, 21 U.S.C. § 848(b);
(2) conspiracy to distribute heroin, which carried a minimum
sentence of ten years, 21 U.S.C. §§ 846, 841(a)(1); and (3)
money laundering, which carried no minimum sentence but
allowed a maximum sentence of twenty years, 18 U.S.C.
§ 1956(a)(1). Faced with a possible life sentence if his case
went to trial, Appellant entered into a plea agreement in which
he promised to plead guilty to all three counts and to “cooperate
truthfully, completely and forthrightly with . . . law enforcement
authorities . . . in any matter as to which the Government deems
the cooperation relevant.” The Government agreed to file a
substantial assistance motion, which would give the District
Court authority to impose a sentence less than life.

Appellant fully complied with his part of the agreement. He
pled guilty to all three counts, testified against four co-
defendants, advised others to cooperate with the Government,
and helped conduct sting operations in New York City and the
 3

District of Columbia that led to the arrests and convictions of
twelve other heroin distributors. Based on this substantial
assistance, the Government filed a downward departure motion
pursuant to 18 U.S.C. § 3553(e) and Section 5K1.1 of the
Sentencing Guidelines that recommended that Appellant be
sentenced to 360 months imprisonment. The District Court
agreed and sentenced Appellant to 360 months for engaging in
a continuing criminal enterprise, 360 months for conspiring to
distribute heroin, and 240 months for money laundering, the
three sentences to run concurrently. Although this fell below
the life sentence that would have been required had the
Government not made its substantial assistance motion, a 360-
month sentence was more severe than Appellant hoped. If he
serves the full thirty-year term, he will be in prison until he is
about eighty years old. Seeking to avoid his conviction
altogether or at least reduce the length of his sentence, Appellant
appeals both. In a brief submitted by court-appointed counsel,
he challenges his sentence. In a supplemental pro se brief, he
challenges his conviction and brings additional challenges to the
sentence.

II.

As a threshold matter, we must determine whether we have
jurisdiction to hear this appeal. Steel Co. v. Citizens for a Better
Env’t, 523 U.S. 83, 94 (1998) (“‘[T]he first and fundamental
question is that of jurisdiction . . . . This question the court is
bound to ask and answer for itself, even when not otherwise
suggested, and without respect to the relation of the parties to
it.’”) (quoting Great S. Fire Proof Hotel Co. v. Jones, 177 U.S.
449, 453 (1900)). Appellant’s jurisdictional argument relies
solely and entirely upon 28 U.S.C. § 1291, which provides that
“[t]he courts of appeals . . . shall have jurisdiction of appeals
from all final decisions of the district courts of the United
States.” Although we agree that § 1291 provides jurisdiction for
 4

us to hear Appellant’s challenge to his conviction, United States
v. Kelley, 36 F.3d 1118, 1120 (D.C. Cir. 1994), and we consider
that challenge in Section IV, § 1291 is not a sufficient basis to
allow us to consider challenges to a sentence. For that, we look
to 18 U.S.C. § 3742, which we have held is “the statute
conferring jurisdiction on the appellate courts to review
sentences.” United States v. Sammoury, 74 F.3d 1341, 1343
(D.C. Cir. 1996); see also United States v. Doe, 934 F.2d 353,
356 (D.C. Cir. 1991) (“We have jurisdiction to hear this appeal
under 18 U.S.C. § 3742(b).”); United States v. Hazel, 928 F.2d
420, 426 (D.C. Cir. 1991) (“This court’s power to review
sentencing decisions is spelled out in 18 U.S.C. § 3742.”)
(Mikva, J., concurring). Appellant’s briefs are of no help on this
point; they do not address whether we have jurisdiction under
§ 3742. This failure, while bothersome to a court, is not
necessarily fatal to Appellant’s appeal of his sentence. In
United States v. American Telephone & Telegraph Co., 551 F.2d
384, 389 n.7 (D.C. Cir. 1976) (“AT&T”), we held that we may
exercise jurisdiction over a case even where the basis invoked
by a party proves incorrect provided the defendant’s “factual
allegations fairly support an alternative basis [for jurisdiction]
in a more proper or simple manner.” Id. If they do, jurisdiction
exists even though a party may have failed to point us to its
source. Id.

Section 3742(a) states:

A defendant may file a notice of appeal in the
district court for review of an otherwise final
sentence if the sentence –

(1) was imposed in violation of law;

(2) was imposed as a result of an incorrect
application of the sentencing guidelines; or
 5

(3) is greater than the sentence specified in the
applicable guideline range . . . ; or

(4) was imposed for an offense for which there
is no sentencing guideline and is plainly
unreasonable.

18 U.S.C. § 3742(a).

We can quickly dispose of subsections (2), (3), and (4) as
possible bases for jurisdiction. Subsection (1), which we find
does provide jurisdiction, requires a more extended discussion,
and we will turn to it shortly. Subsection (2) does not allow
jurisdiction here because Appellant’s sentence was not the
“result of an incorrect application of the sentencing guidelines.”
Rather, his sentence was the result of the District Court’s
decision to grant a departure from the Sentencing Guidelines,
something the Court may do only when the Government files a
substantial assistance motion that recommends such a departure.
The Guidelines provide, “[u]pon 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. § 5K1.1 (emphasis added). The District
Court’s decision to accept the Government’s recommended
downward departure of the sentence did not involve an
application of the Guidelines. It involved a decision not to apply
the Guidelines at all. In Hazel, we explained that a challenge to
a district court’s discretion to sentence outside the Guidelines is
not reviewable under subsection (2).1 928 F.2d at 423.

1
Having explained why this case is not an instance of an
“incorrect application of the sentencing guidelines,” it may be
helpful to note what, by contrast, is. Our cases demonstrate that
subsection (2) creates jurisdiction only where the district court
 6

Neither subsection (3) nor (4) provide jurisdiction either.
Subsection (3) allows us to hear challenges to sentences that are
“greater than the sentence specified in the applicable guideline
range.” Appellant’s sentence, 360 months, is less than, not
greater than, the life sentence “specified in the applicable
guideline range.” Subsection (4) applies only if a sentence “was
imposed for an offense for which there is no sentencing
guideline and is plainly unreasonable.” There are Sentencing
Guidelines for each of Appellant’s offenses. See U.S.S.G.
§§ 2D1.1; 2D1.5; 2S1.1.

That leaves subsection (1), which allows us to consider
appeals of sentences “imposed in violation of law.” We find
jurisdiction here. A sentence is “imposed in violation of law”
when it contravenes a statutory or constitutional provision or is
in some other way unlawful. For example, we have noted that
we would have jurisdiction where an appellant alleges that his
sentence was “based on some illegal reason, such as the
defendant’s race or religion,” Sammoury, 74 F.3d at 1343, or

mistakenly applies or mistakenly fails to apply a provision of the
Sentencing Guidelines. For example, in United States v.
Thomas, 361 F.3d 653, 656 (D.C. Cir. 2004), we suggested that
if a district court enhances a defendant’s sentence because it
mistakenly concludes that a crime for which the defendant had
been previously convicted was a “crime of violence” under the
Guidelines, then there is jurisdiction under subsection (2)
because the sentence has been imposed as a result of an
incorrect application of the Guidelines. Similarly, in Sammoury,
74 F.3d at 1344, we noted that if a district judge refuses to
depart from the Guidelines “because he mistakenly believes he
lacks authority [under the Guidelines] to do otherwise, his
sentencing decision is reviewable on appeal” under subsection
(2).
 7

where he alleges that his sentence violates the Double Jeopardy
Clause of the Constitution, United States v. Townsend, 178 F.3d
558, 566 (D.C. Cir. 1999). See also id. (noting that a sentence
that was “plainly unlawful” or “influenced by unlawful
considerations” would be “imposed in violation of law.”).

As have other appellate courts, this Court has looked to the
allegations and not the merits to determine whether there is
jurisdiction under § 3742(a)(1). In Townsend, we held that we
can exercise appellate jurisdiction under § 3742(a)(1) over a
case in which a defendant “claims that his sentence ‘was
imposed in violation of law,’” even if the defendant loses on the
merits. 178 F.3d at 566 (emphasis added); see also United
States v. Graham, 72 F.3d 352, 358 n.8 (3d Cir. 1995) (“[W]e
believe our jurisdiction to review [defendant’s] sentence lies
pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a)(1)
because [defendant] has alleged that his sentence was imposed
in violation of law . . . .”); United States v. Pridgen, 64 F.3d 147,
150 (4th Cir. 1995) (“We conclude this claim is one that alleges
that the sentence was imposed in violation of law, and
accordingly may be reviewed by this court pursuant to
§ 3742(a)(1).”).

Appellan t here never argues expressly that his sentence was
imposed in violation of law under § 3742(a)(1). He does argue,
however, that his sentence runs afoul of 18 U.S.C. § 3553(e), the
Supreme Court’s decision in United States v. Booker, 543 U.S.
220 (2005), and his due process rights. Because these
allegations “fairly support” § 3742(a)(1) as an “alternative
basis” for jurisdiction, see AT&T, 551 F.2d at 389 n.7, they
support our finding of jurisdiction.

That would be the end of our jurisdictional analysis were it
not for language in the Supreme Court’s decision in United
States v. Ruiz, 536 U.S. 622, 628 (2002), which suggests that
 8

appellate courts lack jurisdiction under 18 U.S.C. § 3742(a)(1)
unless the appellant can prove, on the merits, that his sentence
“was imposed in violation of law.” In Ruiz, the appellant sought
appellate jurisdiction in the Ninth Circuit based on allegations
that the sentencing judge mistakenly believed he lacked
authority to grant a departure from the sentence called for by the
Sentencing Guidelines and that the Government had infringed
upon her right to a fair trial by failing to provide her with
exculpatory evidence. Id. at 627-28. Based on these allegations
alone, the Ninth Circuit found appellate jurisdiction, as would
we, and ruled in the appellant’s favor. The Supreme Court,
however, used language that seemed to suggest that the Ninth
Circuit had no jurisdiction under § 3742(a)(1) unless the
defendant could show that she would prevail on the merits. The
Court stated that “it was necessary for the Ninth Circuit to
address the merits” in order to “determine its own jurisdiction.”
Id. at 628. If that were the holding of Ruiz, we would need to
look to the merits of Appellant’s case to determine whether we
have jurisdiction to hear his appeal. That reading of Ruiz seems
wrong, and it is. The Ruiz language is dicta that the Court did
not follow in its disposition of the case. Instead of vacating the
Ninth Circuit’s decision, as one would have expected the Court
to do if it believed that the Ninth Circuit did not have appellate
jurisdiction, the Court reached the merits of the appeal to reverse
the Ninth Circuit. Id. at 633.

Finally, it is significant to us that Booker, decided after
Ruiz, made no reference to this language in Ruiz, and appears to
assume there is jurisdiction to hear an appeal to consider the
reasonableness of a sentence without regard to the merits of the
claim. 543 U.S. at 267 (“if the sentence comes before the Court
of Appeals for review, the Court of Appeals should apply the
review standards set forth in this opinion”—that is, review for
reasonableness).
 9

Because we construe Appellant’s arguments as asserting
that his sentence “was imposed in violation of law,” we are
satisfied of our jurisdiction and turn now to the merits.

III.

Appellant first argues that the prosecutor violated 18
U.S.C. § 3553(e) during the sentencing hearing by stating that
Appellant is dangerous and might continue to engage in criminal
conduct after leaving prison. Appellant advances the curious
view, not found in any authority of which we are aware, that
once the prosecutor has filed a substantial assistance motion, he
cannot address, nor can the district court consider, any topic
other than the defendant’s substantial assistance to the
Government. That argument has no support in the language of
the statute, which contains no suggestion that the filing of a
substantial assistance motion in any way restricts the
Government from giving the district court the full benefit of its
knowledge about factors relevant to the court’s sentencing
decision.2 Appellant presses his point in asserted reliance upon

2
Section 3553(e) provides in its entirely (without any
suggestion of the restriction urged by Appellant): “Upon motion
of the Government, the court shall have the authority to impose
a sentence below a level established by statute as a minimum
sentence so as to reflect a defendant’s substantial assistance in
the investigation or prosecution of another person who has
committed an offense. Such sentence shall be imposed in
accordance with the guidelines and policy statements issued by
the Sentencing Commission pursuant to section 994 of title 28,
United States Code.”

We note that the United States Attorney’s Manual
recognizes no such restriction either, and, in fact, encourages the
prosecutor to do just the opposite. United States Department of
 10

two cases, neither of them from this Circuit, United States v.
Stockdall, 45 F.3d 1257 (8th Cir. 1995), and United States v.
Thomas, 930 F.2d 526 (7th Cir. 1991), neither of which say
anything about arguments a prosecutor may or may not make at
sentencing.

In Stockdall, the defendants pled guilty to “multiple drug,
firearm, and money laundering offenses.” 45 F.3d at 1258. The
Government filed substantial assistance motions for some of the
counts, but not others. The defendants argued that this selective
filing breached their plea agreements because it would prevent
the court from granting a downward departure on the counts for
which no motions had been filed. At an evidentiary hearing on
the defendants’ motion for performance of their plea
agreements, the court asked the Government whether its
decision to file motions for some but not all of the counts was “a
method or manner by which [the U.S. Attorney’s Office]
attempts to retain control over the sentences imposed or degree
of reduction that will be imposed?” Id. at 1261. The
Government acknowledged that it was. Id. The Eighth Circuit
held that to be an impermissible use of substantial assistance
motions. “The prosecutor’s role in this aspect of sentencing is
limited to determining whether the defendant has provided
substantial assistance with respect to ‘a sentence,’ advising the
sentencing court as to the extent of that assistance, and
recommending a substantial assistance departure. The desire to
dictate the length of a defendant’s sentence for reasons other
than his or her substantial assistance is not a permissible basis
for exercising the government’s power under § 3553(e).” Id.

Justice, U.S. ATTORNEY’S MANUAL § 9-27.710(A)(1) (August
2002) (“[d]uring the sentencing phase of a Federal criminal case,
the attorney for the government should assist the sentencing
court by . . . [a]ttempting to ensure that the relevant facts are
brought to the court’s attention fully and accurately.”).
 11

(internal citation omitted) (emphasis added).

Appellant seizes upon this last quoted sentence to argue that
Stockdall supports his broader point that “[t]he government’s
desire to dictate the length of the sentence for reasons not
relevant to the assistance rendered violated § 3553(e).” Context
matters, and Appellant wants this language in Stockdall to
govern all aspects of sentencing, including what a prosecutor
may properly say at a sentencing hearing. The Eighth Circuit
was clear, however, that it was only considering “this aspect of
sentencing”—the factors that may properly influence a
prosecutor’s decision whether to file a substantial assistance
motion for a particular count. That issue is not before us
because the prosecutor here filed a substantial assistance motion
for each of the counts with which Appellant was charged. The
only issue Appellant has placed before us is whether a
prosecutor’s arguments and comments at a sentencing hearing
are limited to the quality of the assistance the defendant has
rendered. Stockdall provides no support for Appellant’s
argument that they are.

Appellant misreads Thomas, too. There, the defendant was
convicted of heroin possession, entered into a plea agreement,
provided help to the Government, and the prosecutor filed a
substantial assistance motion. To calculate the amount of the
departure from the mandatory minimum sentence, the District
Court took into account not only the nature of the defendant’s
substantial assistance, but also her “extremely burdensome
family responsibilities.” 930 F.2d at 529. The Government
appealed and the Seventh Circuit remanded for resentencing,
holding that the District Court should not have considered the
defendant’s family responsibilities because “only factors
relating to a defendant’s cooperation should influence the extent
of a departure for providing substantial assistance under
§ 3553(e).” Id. Appellant latches onto this statement to argue
 12

that the District Court erred by considering his criminal history
and the nature of his offense when it sentenced him. In
Appellant’s view, because these factors were unrelated to his
substantial assistance, they should not have influenced the extent
of the departure. The Sentencing Reform Act, however, requires
sentencing courts to consider “the nature and circumstances of
the offense and the history and characteristics of the defendant,”
the very factors Appellant wants barred from the District Court’s
consideration. 18 U.S.C. § 3553(a)(1); see also Booker, 543
U.S. at 261 (“Section 3553(a) remains in effect, and sets forth
numerous factors that guide sentencing.”). Thomas does not
suggest otherwise. It only prevents courts from looking to
factors unrelated to the defendant’s cooperation when deciding
to increase the amount of a substantial assistance departure. It
makes no sense to read Thomas to prevent courts from
considering other factors when deciding to limit the amount of
a departure. Such a rule would convert a substantial assistance
motion into a one-way ratchet, requiring courts to depart to the
minimum possible sentence any time the defendant provided the
maximum possible assistance, no matter how heinous the
defendant’s crime.

Although it may be understandable why an appellant
challenging his sentence would invoke Booker in hopes that its
significant impact might reach his case, we can find nothing in
Booker that helps this Appellant under § 3742(a)(1). Appellant
argues that the District Court failed to comply with Booker
because it did not consider the five factors listed in Section
5K1.1 of the Sentencing Guidelines when it imposed his
sentence. But Booker says nothing to suggest that the
sentencing court must consider each of the Section 5K1.1 factors
whenever the Government files a substantial assistance motion.
That is not surprising given the plain language of Section 5K1.1,
which creates the opposite rule:
 13

[t]he appropriate reduction shall be determined
by the court for reasons stated that may include,
but are not limited to, consideration of the
following:

(1) the court’s evaluation of the
significance and usefulness of the
defendant’s assistance, taking into
consideration the government’s
evaluation of the assistance rendered;

(2) the truthfulness, completeness, and
reliability of any information or
testimony provided by the defendant;

(3) the nature and extent of the defendant’s
assistance;

(4) any injury suffered, or any danger or
risk of injury to the defendant or his
family resulting from his assistance;

(5) the timeliness of the defendant’s
assistance.

U.S.S.G. § 5K1.1 (emphasis added). The sentencing court
“may” consider the listed factors, as well as others, when
determining an appropriate reduction, but it is not required to do
so. Appellant’s argument ignores this obvious point. We also
note that Appellant’s assertion that “the court failed to consider
a single one of these factors” is belied by a review of the record,
which reveals statements by the District Court indicating that it,
in fact, considered the Section 5K1.1 factors in determining “the
appropriate reduction.” See, e.g., App. at 51-52 (“I recognize
what the Government is saying in [the substantial assistance]
 14

memorandum specifically with respect to the conduct which the
Government feels the court should consider with regard to
departure”); App. at 81 (stating that the judge had considered
“the factual elements of what [Appellant had] been able to do to
provide substantial assistance”); App. at 83-84 (“you were able
to provide the information that has now been credited to you as
substantial assistance”).

Finally, Appellant argues that the Government violated his
due process rights when the prosecutor suggested, during the
sentencing hearing, that Appellant had not been completely
forthcoming, but had lied to the Government about the amount
of money he had obtained through the conspiracy. This
argument is unavailing. We find nothing in the record that
suggests that the prosecutor’s statements were false or that
suggests that the sentence was influenced in any way by these
statements.

Appellant has failed to show that his sentence violated 18
U.S.C. § 3553(e), Booker, or his due process rights. We find,
therefore, that Appellant’s sentence was not imposed in
violation of law. From this discussion, it is apparent that we
reject the Government’s argument that we are without
jurisdiction to review any downward departure from a minimum
sentence under § 3742(a)(1), even one imposed in violation of
law. That is how the Government reads our decision in Hazel,
928 F.2d 420. But in Townsend, we rejected that same
argument, holding “[t]he fact that the specific illegality []
claimed involves the amount of a downward departure [] does
not render § 3742(a)(1) inapplicable.” 178 F.3d at 566. We
noted that although Hazel precludes review of “the district
court’s judgment regarding the amount of downward departure
which is warranted,” it does not preclude review when the
sentence “was imposed in violation of law.” Id. at 565-66.
 15

IV.

We turn to Appellant’s challenge to his conviction.
Appellant argues that the plea agreement was “meaningless,”
“fraudulent,” and “illusory,” because it did not, by its terms,
require that the Government file a § 3553(e) substantial
assistance motion.3 The plea agreement obligated the
Government to file a Section 5K1.1 motion with the District
Court if the Appellant provided substantial assistance to its
ongoing investigations and prosecutions. But the Government
did not make any promises to file a § 3553(e) motion, and a
Section 5K1.1 motion alone gives the District Court authority to
grant a substantial assistance departure only from the Sentencing
Guidelines and not from the statutory minimum sentence. The
plea agreement expressly provided: “Your client understands
and acknowledges . . . that even if your client provides
substantial assistance in the investigation or prosecution of
another person for purposes of Section 5K1.1 of the Sentencing
Guidelines, this Office [the Office of the United States Attorney
for the District of Columbia] reserves its right to decline to file
a departure motion pursuant to 18 U.S.C. § 3553(e).” In

3
When the Government files a § 3553(e) motion, the
district court has “authority to impose a sentence below a level
established by statute as a minium sentence so as to reflect a
defendant’s substantial assistance in the investigation or
prosecution of another person who has committed an offense.”
18 U.S.C. § 3553(e). In the absence of such a motion, the
district court cannot impose a sentence below the statutory
minimum. See Melendez v. United States, 518 U.S. 120, 126
(1996) (“[n]othing in § 3553(e) suggests that a district court has
power to impose a sentence below the statutory minimum to
reflect a defendant’s cooperation when the Government has not
authorized such a sentence, but has instead moved for a
departure only from the applicable Guidelines range.”).
 16

Appellant’s view, the Government’s failure to promise to file
this § 3553(e) motion made the plea agreement “illusory”
because it left him exposed to the possibility of the statutory
minimum sentence he was seeking to avoid. He argues that he
received no benefit from his promise.

Because Appellant failed to raise this argument below, we
review for plain error, In re Sealed Case, 349 F.3d 685, 690
(D.C. Cir. 2003), and find none. Appellant’s argument
overlooks that the substantial assistance motion that the
Government filed in this case was filed pursuant to both Section
5K1.1 and § 3553(e). The motion states, “[Appellant] has
provided substantial assistance to the Government in the
investigation and prosecution of others involved in his criminal
conduct. Therefore, he is entitled to a downward sentencing
departure from his sentencing guidelines and his statutory
mandatory minimum sentences. 18 U.S.C. § 3553(e) and
Section 5K1.1 of the U.S.S.G. Manual.” App. at 42 (emphasis
added). Even if the promise to file such a motion had been
illusory when made—a determination we need not and do not
make—any possible deficiency was cured by the Government’s
performance. See 1-1 Corbin on Contracts, § 1-17 (2005)
(illusory contracts can be “cured by performance”).

V.

Appellant’s conviction and his sentence are therefore
Affirmed.