UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 91-3696
Summary Calendar
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LARRY URBANI,
Defendant-Appellant.
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Appeal from the United States District Court for the
Eastern District of Louisiana
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(July 13, 1992)
Before GARWOOD, HIGGINBOTHAM, and BARKSDALE, Circuit Judges.
GARWOOD, Circuit Judge:
Defendant-appellant Larry Urbani (Urbani) pleaded guilty to
conspiracy to commit fraud and was sentenced following that plea to
a term of imprisonment within the guidelines range. He brings this
appeal challenging the government's refusal to move for a downward
departure from the guidelines under U.S.S.G. § 5K1.1 and the
district court's refusal to hold an evidentiary hearing to examine
the extent of his assistance to the government. We affirm.
Facts and Proceedings Below
On October 18, 1990, Urbani and three others were named in a
forty-one-count indictment concerning a fraudulent scheme of
leasing vending and amusement machines, engaged in by several
related companies of which Urbani was an employee. Urbani was
named in twenty-seven counts, charging him with conspiring to
commit mail and wire fraud and with the substantive fraud offenses,
in violation of 18 U.S.C. §§ 371, 1341, and 1343. After the
indictment was handed down, he entered into a plea agreement with
the government. Under it, Urbani agreed to plead guilty to Count
One of the indictment, the conspiracy count, to submit to
debriefing whenever requested by law enforcement authorities, and
to testify fully and truthfully before a grand jury or at any
trial. In exchange, the government agreed not to pursue the
remaining counts of the indictment (or other offensesSQexcept
crimes of violence, if anySQrelated to the subject matter of the
investigation leading to the indictment), and to "bring to the
attention of the Court any cooperation rendered to law enforcement
authorities by the defendant."1 The plea agreement expressly and
unequivocally disclaimed, however, any obligation by the government
to file a motion authorizing the district court to depart downward
from the guidelines under U.S.S.G. § 5K1.1 for the defendant's
substantial assistance to the authorities.2 Urbani entered a
1
It was also agreed that any statements or testimony
furnished by Urbani (or anything derived therefrom) would not be
used against him.
2
The plea agreement, dated November 29, 1990, stated:
"However, defendant's cooperation does not
automatically require the Government to request a
departure from the sentencing guidelines for
substantial assistance to the Government. That
2
guilty plea pursuant to this agreement on April 11, 1991.
Between November 1990 and June 1991, Urbani attended seven
debriefing sessions with the government. Prior to his scheduled
sentencing on June 26, 1991, Urbani was informed by the Assistant
United States Attorney that a motion from the government for a
section 5K1.1 departure would not be forthcoming. Sentencing was
continued at Urbani's request to permit him to try to resolve this
disagreement with the government.
The presentence report (PSR) calculated a guidelines
imprisonment range of twenty-four to thirty months and noted that
"[n]o information has been developed which would indicate an upward
or downward departure from the guidelines." Urbani did not
challenge the calculation of the guideline range, but did object to
the PSR on the ground that he was entitled to a section 5K1.1
departure. As described in the probation officer's addendum to the
PSR, Urbani's objection was that "failure to grant a Section 5K1.1
in this circumstance is arbitrary on the part of the Government and
violative of his due process rights."
The prosecutor did not change his mind about the 5K1.1 motion
during the four-week continuance. However, on July 23 he did send
decision will be made by the Government after it
evaluates the cooperation. If the Government decides
to file a motion that the Court may depart pursuant to
Section 5K.1 [sic] of the sentencing guidelines, the
Government will file a motion at a time determined by
the Government, and only after the Government evaluates
the entire cooperation of defendant. . . . The
defendant further understands that the Government is
under no obligation whatsoever to file a motion with
the Court at any time for the departure from the
Sentencing Guidelines."
3
a letter to the district court describing Urbani's cooperation.
The letter noted that since the plea bargain Urbani had attended
seven meetings with the investigating agents, and in the opinion of
those agents had been truthful in responding to questions.
However, the letter also stated that the information provided by
Urbani had largely been known to the government already through
Urbani's co-defendants and through various potential defendants,
who had cooperated in the case before Urbani offered to assist the
government, and through the investigative efforts of the Federal
Bureau of Investigation (FBI), Internal Revenue Service (IRS), and
Federal Trade Commission. The letter noted that although Urbani's
cooperation further verified certain facts that the government was
relying on in its prosecutions, it came only after he had initially
turned down an offer to cooperate in the early stages of the
investigation and the government had already sufficiently prepared
its case to return an indictment. For those reasons, the letter
indicated, the government would not move for a departure under
section 5K1.1, but would also not object to the court's imposing a
sentence at the lower end of the guideline range.
At the sentencing hearing on July 24, 1991, Urbani, through
counsel, reiterated his contention that he was entitled to a
downward departure. Counsel stated that
"while we agree at this point with the guidelines as
suggested in the pre-sentence report, we thank the
Government for the letter indicating that they recommend
a lower end of the guidelines in this case, we believe,
Your Honor, that there is evidence to present to the
Court that indicates that our client is entitled to a
downward departure under the 5K1.1. . . . The United
States Government and defense disagree from a factual
standpoint whether our client is entitled to that."
4
He requested an evidentiary hearing on this matter and permission
to subpoena the FBI and IRS agents to whom he had provided
information. The district court accepted Urbani's contention that
it had authority, even in the absence of a 5K1.1 motion from the
government, to examine whether he was entitled to such a departure,
but noted that whether or not to hold a hearing remained a
discretionary matter for the district court. The court declined to
follow the course suggested by Urbani, choosing instead to rely on
the PSR, on the government's letter of July 23, and on any
information Urbani wished to provide orally at the sentencing
hearing. Through his counsel Urbani informed the court that he had
attended meetings totaling twenty to thirty hours, and that the
information he had provided had enabled the government to recover
valuable assets and had aided its ongoing investigations into other
crimes. The government simply replied that its position was
adequately outlined in the July 23 letter. The district court
imposed a sentence of twenty-five months' imprisonment.
In a motion for reconsideration dated August 2, 1991, Urbani
again asked the district court to exercise its discretion to hold
a hearing on his entitlement to a section 5K1.1 reduction, or
"[a]lternatively" to conduct such a hearing "to determine whether
the government has not acted in an arbitrary and capricious
manner."3 This motion was denied as moot.
3
In a brief filed below in support of this motion, the
passing and wholly unelaborated-on comment is made that the
government "dishonored the plea agreement." That contention was
not previously raised, and has not been raised on appeal. It is
therefore abandoned. Moreover, the record contains absolutely no
evidence, nor any factual allegations or elaborations, tending to
support that contention.
5
Urbani brings this appeal challenging the government's refusal
to move for a departure under section 5K1.1 and the district
court's denial of an evidentiary hearing.
Discussion
U.S.S.G. § 5K1.1 (policy statement) provides that "[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." In considering the constraints, if any, on
the government's decision whether or not to file a motion under
this section, we must begin with the Supreme Court's recent
decision in Wade v. United States, 60 U.S.L.W. 4389 (1992). In
Wade, the Supreme Court considered district courts' authority to
review a prosecutor's refusal to file a motion under 18 U.S.C. §
3553(e), which authorizes a district court, upon motion of the
government, to impose a sentence less than a statutory minimum in
recognition of the defendant's substantial assistance to the
government. Although the present case does not involve a statutory
minimum sentence and thus implicates only section 5K1.1 and not
section 3553(e),4 the Supreme Court in Wade indicated that the
principles it announced were applicable to both sections.5
4
18 U.S.C. § 371, to which Urbani pleaded guilty, limits
sentences to no more than five years, but does not impose a
minimum limit.
5
The guideline range for Wade's drug offenses was 97 to 121
months' imprisonment, but the pertinent statute required a ten-
year minimum sentence. Apparently because the guidelines do not
authorize a sentence below any statutorily mandated minimum, see
U.S.S.G. § 5G1.1(c)(2), the Supreme Court observed that Wade's
claim of entitlement to a motion allowing the court to depart
6
Like Urbani, Wade argued based solely on the extent of his
assistance to the government that the government's refusal to move
for a downward departure was arbitrary and hence violative of his
constitutional rights. The Court first observed that the guideline
provision and the statute condition a court's authority to depart
on a motion from the government, but that this arrangement itself
does not limit the government's discretion to decide whether to
make such a motion in a particular case. See Wade, 60 U.S.L.W. at
4390 ("[I]n both § 3553(e) and § 5K1.1 the condition limiting the
court's authority gives the Government a power, not a duty, to file
a motion when a defendant has substantially assisted."). Rather,
the Court noted, this decision by the government is reviewable only
on the same basis as other discretionary decisions by a prosecutor:
district courts may grant relief "if they find that the refusal was
based on an unconstitutional motive" such as the defendant's race
or religion. Id. The Court made plain, though, that absent a
substantial threshold showing of such a constitutionally improper
motive, district courts lack authority to scrutinize the level of
the defendant's cooperation and interpose their own assessment of
its value. Moreover, this limited scope of review forecloses even
the need for an evidentiary hearing solely to document the
defendant's assistance: "It follows that a claim that a defendant
merely provided substantial assistance will not entitle a defendant
below 120 months on these charges "implicates both 18 U.S.C. §
3553(e) and USSG § 5K1.1." Wade, 60 U.S.L.W. at 4390. The Court
further noted that the parties had argued the case on the premise
that in such a situation "the two provisions pose identical and
equally burdensome obstacles." Id.
7
to a remedy or even to discovery or an evidentiary hearing." Id.6
Urbani's contentions cannot survive the framework established
by the Supreme Court in Wade. He has not at any point alleged an
illicit motivation underlying the government's refusal to request
a 5K1.1 departure. The entirety of his argument, both to this
Court and to the district court, has been that given his level of
cooperation with the government, withholding a 5K1.1 motion was
arbitrary and without justification. Thus, it is exactly the type
of claimSQi.e., "a claim that a defendant merely provided
substantial assistance"SQthat Wade indicates is unavailing and does
not warrant an evidentiary hearing.
The standard applicable to other discretionary prosecutorial
decisions, with which the Wade Court equated the decision to file
a 5K1.1 motion, see supra, confirms this view. Decisions regarding
whom to prosecute are committed to the government's discretion
unless "'deliberately based upon an unjustifiable standard such as
race, religion, or other arbitrary classification,' including the
exercise of protected statutory and constitutional rights." Wayte
v. United States, 105 S.Ct. 1524, 1531 (1985) (citations omitted)
(quoting Bordenkircher v. Hayes, 98 C.Ct. 663, 668 (1978)) (cited
6
This holding by the Court clarifies an issue to which we
referred in a 1989 opinion sustaining section 5K1.1 against a
challenge that, by requiring a motion by the government, it
failed to implement the statutory directive to reflect the
appropriateness of taking into account a defendant's assistance
to the government. In that case we stated that section 5K1.1
"obviously does not preclude a district court from entertaining a
defendant's showing that the government is refusing to recognize
such substantial assistance." United States v. White, 869 F.2d
822, 829 (5th Cir.) (per curiam), cert. denied, 109 S.Ct. 3172
(1989). See also United States v. Paden, 908 F.2d 1229, 1234
(5th Cir. 1990), cert. denied, 111 S.Ct. 710 (1991).
8
at Wade, 60 U.S.L.W. at 4390). Likewise, the prosecutor's
discretion in selecting the criminal statute under which to
prosecute is subject only to the limitation that the decision not
involve deliberate discrimination against a class of defendants.
United States v. Batchelder, 99 S.Ct. 2198, 2204 (1979);
Bordenkircher v. Hayes, 98 S.Ct. 663, 668-69 (1978).
Under the principle expressed in these cases, although a
defendant might conceivably state grounds for relief by alleging
that refusal to move for a departure under section 5K1.1 was
"arbitrary" because it was based on his membership in an identified
group, or on some specified characteristic, that the government has
no possibly legitimate grounds for treating in a discriminatory
manner, Urbani's unadorned allegation of general arbitrariness must
fail. It contains no suggestion that the government's decision was
based on such a constitutionally suspect reason. Absent any such
suggestion, it is difficult to see how his claim indicates anything
more than his disagreement with the government's decision and an
invitation to the district court to similarly disagree, which is
exactly the type of judicial oversight that Wade, through its
adoption of the Wayte standard, forbids as overly intrusive on the
prosecution's broad discretion.
We understand the Supreme Court to have been reiterating this
basic distinction in stating that "Wade would be entitled to relief
if the prosecutor's refusal to move was not rationally related to
any legitimate Government end." Wade, 60 U.S.L.W. at 4391 (citing
Chapman v. United States, 111 S.Ct. 1919 (1991)). Any inclination
to give this statement broader meaning, so as to encompass Urbani's
9
claim, is foreclosed not only by the preceding discussion in the
Supreme Court's opinion but by the facts of the Wade case. In
response to Wade's argument, which was evidently identical in
substance to Urbani's, the district court ruled that it had no
power to impose a sentence below the statutory minimum without a
motion from the government and no authority to inquire into the
government's motives for not filing a motion. Despite qualifying
that approach somewhat by clarifying that district courts are
authorized to inquire into the government's motives to the limited
extent of ensuring that the decision was not driven by a
constitutionally forbidden purpose, the Supreme Court found no
obstacle to affirming Wade's sentence, because on its face Wade's
claim did not raise such an issue. The Court thus by necessary
implication held that Wade's contentions were sufficiently removed
from ones that could state a claim to render harmless a denial of
a hearing, even though the denial was possibly based on the
district court's overly restrictive understanding of its own
authority.
In the present case, by contrast, the district court assumed
that it did have authority to consider the evidence of Urbani's
cooperation in deciding whether to depart, yet chose to rely on the
government's letter and on the statements made at the sentencing
hearing. The district court's view of its authority was, if
anything, too broad according to the subsequent pronouncements in
Wade. Therefore, its refusal to conduct an evidentiary hearing was
not based on an incorrect view of the law, but was essentially a
10
decision based on the allegations before it.7 Even more than in
Wade, therefore, the district court's decision cannot have
constituted an abuse of discretion.
Conclusion
Because under the Supreme Court's Wade decision prosecutorial
decisions to grant or withhold a motion under section 5K1.1 are
insulated from challenge on the grounds raised by Urbani, he is
entitled to no relief from the government's refusal to make such a
motion, and the district court did not err in declining to hold an
evidentiary hearing to examine the extent of Urbani's assistance.
The district court's sentence is therefore
AFFIRMED.
7
We also observe that there was apparently little, if any,
specific factual dispute about Urbani's cooperation; the
government did not contest Urbani's counsel's statements at the
sentencing hearing, and Urbani has not expressly challenged any
factual particulars of the account given in the government's July
23 letter, either to the district court or to this Court.
11