United States Court of Appeals,
Eleventh Circuit.
No. 97-8124
Non-Argument Calendar.
UNITED STATES of America, Plaintiff-Appellee,
v.
Dumanika Shamon SEARCY, Defendant-Appellant.
Jan. 14, 1998.
Appeal from the United States District Court for the Northern District of Georgia. (No. 1:96-CR-
285-1-GET), G. Ernest Tidwell, Judge.
Before EDMONDSON, BLACK and HULL, Circuit Judges.
PER CURIAM:
Dumanika Searcy appeals the district court's decision to deny his motion to depart
downward, under U.S.S.G. § 5K2.0, on the ground that he might have received a lower sentence in
state court for the same crime. Applying such a departure would undermine the nationwide
uniformity that Congress sought to ensure when it promulgated the sentencing guidelines; so, we
adopt the same standard as four other circuits deciding against this kind of departure. Because the
district court correctly refused to depart from Searcy's applicable guidelines range, we affirm.
After DeKalb County police arrested Searcy on outstanding warrants, and discovered 59.9
grams of crack cocaine on him, Searcy, in federal court, pled guilty to possession with intent to
distribute cocaine (Base). Before sentencing, Searcy submitted a motion for downward departure,
arguing that he "should not have been singled out from the great majority of cases for prosecution
and sentence under Federal Law." Therefore, Searcy argued that the district court should depart
downward to about the sentence he would have received under Georgia law.
On appeal, Searcy argues that there was no federal task force, no fellow defendants involved
in federal prosecution, and no federal money involved in this case and, therefore, that this case
should only have been prosecuted at the state level. Searcy contends that, because this situation was
not considered by the sentencing guidelines, there existed in his case a circumstance "not adequately
taken into consideration by ... the guidelines," U.S.S.G. § 5K2.0.
According to Searcy, the district court judge should have considered a downward departure.
In so doing, the district judge should have considered that this case fell under the exception that,
when a case is different, to an unusual degree, from the "heartland" of cases covered by the
guidelines, the sentencing court should depart from the guidelines. Searcy argues that the court
abused its discretion in finding that it was precluded as a matter of law from considering a
downward departure on the grounds argued by Searcy. For background, see Koon v. United States,
518 U.S. 81, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996).
The district court decided that it did not possess the legal authority to depart downward in
this case. Under United States v. Williams, 948 F.2d 706, 708 (11th Cir.1991), we review the district
court's conclusion of law.
In Koon, the Supreme Court set out questions to consider when deciding whether to depart
from the guidelines established by the Sentencing Commission. These questions are the ones
mentioned: (1) what features of the case make it outside the guidelines' "heartland" and make it
special or unusual? (2) did the Commission forbid departure based on those features? (3) if not, did
the Commission encourage departure based on those features? and (4) if not, did the Commission
discourage departure based on those features? 518 U.S. at ----, 116 S.Ct. at 2045.
Because the guidelines give no specific comments on federal and state sentencing
differences, we must decide, under Koon 's first factor, whether this case falls outside the guidelines'
"heartland." While this issue is one of first impression for us, other circuits already have ruled that
a prosecutor's choice of federal rather than state jurisdiction is not a permissible circumstance to
consider for departing downward. See United States v. Haynes, 985 F.2d 65, 69 (2d Cir.1993);
United States v. Deitz, 991 F.2d 443, 447 (8th Cir.1993) (theoretical sentence defendant might have
received in state court no basis for departure); United States v. Sitton, 968 F.2d 947, 962 (9th
Cir.1992) (no departure available because of disparities between state and federal sentencing
regimes); United States v. Dockery, 965 F.2d 1112, 1118 (D.C.Cir.1992) (allowing departures for
other forum's "transferred" defendants would defeat the standardizing purpose of the sentencing
guidelines).
The Commission did consider that the "charge offense" system gave the prosecutor influence
on sentencing but decided that the prosecutor's ability to increase a sentence would be limited by
the defendant's actual conduct. See U.S.S.G. Ch.1, Pt.A, 4(a). Searcy could not have been charged
if there was not a prima facie case allowing the prosecutor to file in federal court.
We follow the other circuits. Allowing departure because the defendant could have been
subjected to lower state penalties would undermine the goal of uniformity which Congress sought
to ensure: federal sentences would be dependent on the practice of the state within which the federal
court sits. Because the district court correctly refused to depart from Searcy's applicable guidelines
range on the basis of the punishment that would be imposed in state court, we affirm.
AFFIRMED.