United States Court of Appeals,
Eleventh Circuit.
No. 95-3269.
UNITED STATES of America, Plaintiff-Appellee,
v.
Israel ALVAREZ, Sr., Defendant-Appellant.
June 20, 1997.
Appeal from the United States District Court for the Northern District of Florida. (No. GCR-93-
1009), Maurice M. Paul, Judge.
Before TJOFLAT, DUBINA and CARNES, Circuit Judges.
DUBINA, Circuit Judge:
The defendant, Israel Alvarez, Sr., ("Alvarez") appeals his sentence for conspiracy to
distribute and possession with intent to distribute crack cocaine. This appeal presents questions
regarding the interaction of U.S.S.G. § 5K1.1 and Fed.R.Crim.P. 35(b), on which the circuits are
divided.
BACKGROUND FACTS
Alvarez's plea agreement gave him the opportunity to provide assistance to the Government
in the prosecution of others in exchange for a motion for downward departure from the Government.
Alvarez began assisting the Government before the district court sentenced him. However, his
assistance was incomplete at sentencing because not all the targets of the prosecution had gone to
trial. The Government therefore expected Alvarez's continued cooperation following sentencing.
At the sentencing hearing, the Government gave Alvarez a choice. The Government offered
to file a U.S.S.G. § 5K1.1 motion advising the district court of the substantial assistance provided
by Alvarez thus far and his expected future assistance. Alternatively, the Government offered to file
a Fed.R.Crim.P. 35(b) motion after the sentencing advising the district court of Alvarez's substantial
assistance with the additional prosecutions once they were concluded. The Government insisted that
it would file either the § 5K1.1 motion or the Rule 35(b) motion, but not both. Faced with this
choice, Alvarez chose the Rule 35(b) motion. He made this choice after the Government assured
him that the Rule 35(b) motion would reflect the totality of his assistance, both before and after
sentencing.1
The district court, without a § 5K1.1 motion before it, sentenced Alvarez to 324 months
imprisonment, a $1,500,000 fine2, and a five year term of supervised release with deportation as a
condition of the supervised release.3 Alvarez perfected this appeal claiming that the Government
violated his due process rights by forcing him to choose between a § 5K1.1 motion and a Rule 35(b)
motion.
DISCUSSION
Alvarez argues that the choice put to him at sentencing between these two motions was
based on the Government's incorrect interpretation of the law and thus violated his due process
rights. In our view, the Government could not have violated Alvarez's due process rights because
the decision to file a § 5K1.1 motion for downward departure from the Sentencing Guidelines or a
Rule 35(b) motion for resentencing lies within the sound discretion of the Government. See United
1
It appears from the record that the Government's action in requiring Alvarez to elect between
the two motions was based upon the Government's misunderstanding of the limits of each
motion and their relationship together.
2
Alvarez failed to object to the fine at his sentencing hearing. In light of the concerns
expressed in United States v. Jones, 899 F.2d 1097 (11th Cir.), cert. denied, 498 U.S. 906, 111
S.Ct. 275, 112 L.Ed.2d 230 (1990), overruled on other grounds, United States v. Morrill, 984
F.2d 1136 (11th Cir.1993) (en banc), we conclude that Alvarez has waived his right to appeal
this issue. Where "a party is silent or fails to state the grounds for an objection, objections to the
sentence will be waived for purposes of appeal, and this court will not entertain an appeal based
upon such objections unless refusal to do so would result in manifest injustice." Jones, 899 F.2d
at 1102-03.
3
In United States v. Chukwura, 5 F.3d 1420 (11th Cir.1993), cert. denied, 513 U.S. 830, 115
S.Ct. 102, 130 L.Ed.2d 51 (1994), we held that district courts have power under § 3583(d) to
order deportation as a condition of supervised release. Alvarez claims our ruling in Chukwura
was incorrect. We recognize that our interpretation of § 3583(d) has created a split of authority
within the circuits. See United States v. Phommachanh, 91 F.3d 1383 (10th Cir.1996) (holding
that district courts may not order deportation under § 3583(d)); United States v. Xiang, 77 F.3d
771 (4th Cir.1996) (same); United States v. Quaye, 57 F.3d 447 (5th Cir.1995) (same); United
States v. Kassar, 47 F.3d 562 (2d Cir.1995) (same); United States v. Sanchez, 923 F.2d 236 (1st
Cir.1991) (per curiam) (same). Nevertheless, we recently reaffirmed our position that district
judges may order deportation as a condition of supervised release under § 3583(d). United
States v. Oboh, 92 F.3d 1082 (11th Cir.1996) (en banc), cert. denied, --- U.S. ----, 117 S.Ct.
1257, 1258, 137 L.Ed.2d 337 (1996). Oboh forecloses Alvarez's argument on this issue. Even if
it did not, this issue is moot because there has been a final administrative order of deportation
against Alvarez.
States v. Howard, 902 F.2d 894, 895 n. 2 (11th Cir.1990). In fact, the Supreme Court has made clear
that "§ 5K1.1 ... gives the Government a power, not a duty, to file a motion when a defendant has
substantially assisted." Wade v. United States, 504 U.S. 181, 185, 112 S.Ct. 1840, 1843, 118
L.Ed.2d 524 (1992) ("We see no reason why courts should treat a prosecutor's refusal to file a
substantial-assistance motion differently from a prosecutor's other decisions."). Because motions
for downward departure are within the Government's discretion, Alvarez has no protected right
which gives rise to a due process claim. See United States v. White, 71 F.3d 920, 925-26
(D.C.Cir.1995) (holding that postponing evaluation of a defendant's substantial assistance does not
violate due process). Although Alvarez does not state a due process claim, it appears that the
Government did misinterpret federal law in this case, as Alvarez suggests.
Section 5K1.1 provides: "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. § 5K1.1. Rule 35(b)
provides: "The court, on motion of the Government made within one year after the imposition of
the sentence, may reduce a sentence to reflect a defendant's subsequent, substantial assistance in the
investigation or prosecution of another person who has committed an offense...." Fed.R.Crim.P.
35(b) (emphasis added). We explained the interaction of § 5K1.1 and Rule 35(b) in United States
v. Howard, 902 F.2d 894 (11th Cir.1990).
In Howard, the Government filed a § 5K1.1 motion but the district court deferred ruling on
the motion because Howard had not yet cooperated. Id. at 895. This court vacated Howard's
sentence and found that postponing the § 5K1.1 ruling conflicted with the temporal framework
established by § 5K1.1 and Rule 35(b). Id. at 896. Howard made clear that Section 5K1.1 is used
at sentencing to reflect substantial assistance rendered up until that moment. Id. at 896. Rule 35(b)
is used after sentencing to reflect substantial assistance rendered after sentencing. Id. Thus, Rule
35(b) cannot be used to reflect substantial assistance rendered prior to sentencing as the Government
suggested to Alvarez in this case. United States v. Speed, 53 F.3d 643, 645 n. 3 (4th Cir.1995); but
see United States v. Drown, 942 F.2d 55, 59 n. 7 (1st Cir.1991).
There is support for our interpretation of § 5K1.1 and Rule 35(b) in other circuits. The
Fourth Circuit relied on our reasoning in Howard in a case similar to the one presented here. See
United States v. Martin, 25 F.3d 211, 214 (4th Cir.1994). In Martin, the court stated:
[I]f, at the time of sentencing, the government deems the defendant's assistance substantial,
the government cannot defer its decision to make a U.S.S.G. § 5K1.1 motion on the ground
that it will make a Fed.R.Crim.P. 35(b) motion after sentencing. Instead, the government
at that time must determine—yes or no—whether it will make a U.S.S.G. § 5K1.1 motion.
Id. at 216. The First Circuit also has rejected the Government's attempt to defer a § 5K1.1 motion
in anticipation of filing a Rule 35(b) motion. See Drown, 942 F.2d at 60. "[T]his strategy, insofar
as it assumes that the government, at sentencing, may postpone its evaluation of a defendant's
assistance until [his] services are completed, improperly merges the temporal boundaries established
in [§ 5K1.1] and [Rule 35(b) ], respectively." Id.
U.S.S.G. § 5K1.1 and Rule 35(b) work in tandem to give the Government two opportunities
to reward a defendant's substantial assistance in the investigation or prosecution of others. Section
5K1.1 addresses cooperation before sentencing while Rule 35(b) addresses cooperation after
sentencing. The Government is not forced to choose between the two, nor are defendants. When
a defendant's cooperation begins before sentencing and continues after sentencing, as occurred in
this case, the Government should determine whether to make a § 5K1.1 motion at the sentencing
hearing based on the defendant's cooperation up to that point. If a defendant continues to cooperate
after sentencing the Government may elect to file a Rule 35(b) motion for reduction of the
defendant's sentence. However, this motion may only reflect assistance rendered after imposition
of the sentence. In so holding, we break rank with our sister circuits which have concluded that a
Rule 35(b) motion may encompass the totality of a defendant's cooperation. See White, 71 F.3d at
925-26; Drown, 942 F.2d at 59, n. 7.4 In our view, the plain language of Rule 35(b) forecloses such
4
In Drown, the First Circuit held that Rule 35(b) "speaks expressly to "subsequent' assistance,
a reference which, in context, can only mean assistance rendered after the defendant has been
sentenced." Drown, 942 F.2d at 59. The court then qualified its holding: "This is not to say
that, on a Rule 35(b) motion for sentence reduction, the court may not assay the totality of a
defendant's cooperation." Id. at 59 n. 7. Thus, Drown is not a model of clarity on this point. In
our view, the Drown court's qualification seems inconsistent with its holding that the government
"improperly merge[d] the temporal boundaries established in section 5K1.1 and Fed.R.Crim.P.
35(b)" by postponing its evaluation of defendant's assistance until the defendant's services are
an interpretation.
CONCLUSION
The Government induced Alvarez to choose between the Government filing a § 5K1.1
motion or a Rule 35(b) motion. This, of course, would have been permissible if the Government had
properly understood the law and explained it to Alvarez. The problem in this case is that Alvarez
chose the Rule 35(b) motion based on the Government's erroneous assumption and representation
to him that a Rule 35(b) motion could reflect his pre-sentence cooperation. It cannot. Therefore,
we vacate Alvarez's sentence and remand to the district court for resentencing.5
Although we have not reviewed the fine imposed by the district court or questioned the
district court's authority to order deportation as a condition of supervised release, the district court
is not bound by its previous judgment on these issues. Because we vacate Alvarez's sentence, the
district court is free on remand to reconsider Alvarez's sentence in its entirety.
VACATED and REMANDED.
completed. Id. at 59.
5
We vacate Alvarez's sentence and remand the case to the district court so the Government,
now that we have explained the law to it, can decide whether to file a § 5K1.1 motion at
resentencing, a Rule 35(b) motion later, or both.