United States v. Ronald Leland Kelley, United States of America v. Rodney Ray Jiruska

BEAM, Circuit Judge,

concurring in part and dissenting in part, joined by McMILLIAN, Circuit Judge, in that portion of the opinion that is a dissent.

The question I raise is whether the district court ever has the authority to depart sua sponte from a guideline-specified sentence in this type of case. In my view, the answer is yes. I agree with the majority that section 5K1.1 requires a motion from the prosecution for departure. I believe, however, that guideline section 5K2.0 provides alternative authority to depart under limited circumstances.1

*758Section 3553(b) of 18 United States Code and implementing guideline sections provide authority for the district court to depart from a guideline calculation.

The applicable statute, 18 U.S.C. § 3553(b), states:

The court shall impose a sentence of the kind, and within the range, referred to in subsection (a)(4) unless the court finds that there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence different from that described. In determining whether a circumstance was adequately taken into consideration, the court shall consider only the sentencing guidelines, policy statements, and official commentary of the Sentencing Commission.

18 U.S.C. § 3553(b) (1990) (emphasis added). Guideline section 5K2.0 “fleshes out” the statutory language and like section 5K1.1 is labeled a “Policy Statement.” Specific language in section 5K2.0 makes my point. It states, in part,

Under 18 U.S.C. § 3553(b) the sentencing court may impose a sentence outside the range established by the applicable guideline, if the court finds “that there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence different from that described.” Circumstances that may warrant departure from the guidelines pursuant to this provision cannot, by their very nature, be comprehensively listed and analyzed in advance. The controlling decision as to whether and to what extent departure is warranted can only be made by the courts.... Any case may involve factors in addition to those identified that have not been given adequate consideration by the Commission. Presence of any such factor may warrant departure from the guidelines, under some circumstances, in the discretion of the sentencing court. Similarly, the court may depart from the guidelines, even though the reason for departure is taken into consideration in the guidelines (e.g., as a specific offense characteristic or other adjustment), if the court determines that, in light of unusual circumstances, the guideline level attached to that factor is inadequate.
Where, for example, the applicable offense guideline and adjustments do take into consideration a factor listed in this subpart,[2] departure from the applicable guideline range is warranted only if the factor is present to a degree substantially in excess of that which ordinarily is involved in the offense.

U.S.S.G. § 5K2.0 (emphasis added).

Thus, the Sentencing Commission, in my view, has been required by Congress to *759deal with departures for “substantial assistance to authorities” both specifically, in section 5K1.1, and generally, in section 5K2.0. As indicated above, section 5K2.0 provides that even where a factor is specifically taken into consideration by the Commission, and certainly under the guidelines substantial assistance is a factor to be considered at sentencing, the sentencing judge is warranted in going outside the guideline-specified sentence under, at least, extraordinary circumstances — without a motion from the government.

The majority opinion seems to generally accept this premise when it concedes that our cases recognize an egregious case exception. See, e.g., United States v. Justice, 877 F.2d 664, 668-69 (8th Cir.), cert. denied, 493 U.S. 958, 110 S.Ct. 375, 107 L.Ed.2d 360 (1989). Otherwise, the majority analysis of the binding effect of section 5K1.1 provides no basis for any departure, whatever the circumstances, short of finding a constitutional violation. Surely guideline policy statements should not be construed with such rigidity.

While I agree that an egregious case provides the basis for departure without a motion by the government, I believe that a lesser situation can also trigger the authority to depart under section 5K2.0.

The majority states, supra at 755, that this circuit joins others in supporting the notion that in measuring assistance given, the prosecutor “is in the best position to evaluate [the] cooperation. E.g., Grant, 886 F.2d at 1514.” This is sometimes not the case. A district judge who has supervised several different cases involving the same drug conspiracy may have, for instance, information not readily available to the Assistant United States Attorney prosecuting a particular case. This information may have come through presiding over the presentation of evidence, the issuance of warrants, the authorization of pen registers and wiretaps or even through information derived from the in camera issuance of subpoenas in related cases. See, e.g., Fed.R.Crim.P. 17. In fact, the trial judge will frequently have a better view of the quality of assistance given by an individual who has testified in several cases than the prosecutor in a given case.

Finally, as briefly discussed in footnote 1, supra, “substantial assistance to authorities” may come in ways that do not even directly involve the office of the United States Attorney, the agency which the majority looks to for guidance. For instance, the probation officer may call upon a criminal defendant for information necessary to prepare a presentence report on a different defendant in another case. Sometimes this information flows through the probation office to different jurisdictions without any knowledge being imparted to the local United States Attorney and his staff. Since the policy statements encompass “investigation” of other persons, an activity that is contemplated in the presentence process, especially, for instance, in determining the total value of stolen property, the total weight of drugs or many other similar issues involved in the sentencing decision, the trial judge may sometimes be in the superior position with regard to information about “assistance to authorities.”

Given the myriad of situations in which “assistance” may be given, to allow the prosecutor to act as a “plug” in the process in every instance disserves the language of the statute and disregards the real world of sentencing. Thus, I would apply section 5K2.0 when appropriate.3

In sum, Kelley and Jiruska have not met the standard I would establish for cases such as this and I would affirm the sentence imposed by the district court. I do, however, dissent from the idea that a district court does not have the authority to depart from a guideline-specified sentence as a reward for substantial assistance with*760out a motion from the prosecutor in a proper case.

. Judge John R. Gibson is correct in stating in the majority opinion that the parties here have not raised the issue of departure under section 5K2.0. See footnote 5, majority opinion. Thus, in this case, the majority result is correct if section 5K1.1 binds and limits the actions of the *758sentencing judge. That, of course, is the essence of the dispute as stated in the majority opinion and the dissent authored by Judge Hea-ney.

Kelley and Jiruska agreed to (and allegedly did) assist the prosecutor in convicting their co-defendants. See majority opinion at 750-51. This activity fits within that described in application note 2 of the commentary to section 5K1.1 as assistance in the "investigation and prosecution of criminal activities.” Accordingly, if limited to such a factual predicate, I concede that the use of alternative authority under section 5K2.0 for departure as a result of such activity should be reserved for the unusual case.

Further, based upon my understanding of the majority’s footnote 5, there appears to be agreement that a strong argument can be made for less limited sua sponte departure under section 5K2.0, as a reward for assistance to "the court” or, perhaps, government officials other than investigators and prosecutors. At least, it seems clear that this decision does not deal with those issues.

. The original policy statement was entitled "GENERAL PROVISIONS” and used the word "part." It was amended on November 1, 1990, to make the title "OTHER GROUNDS FOR DEPARTURE” and to refer to "subpart” rather than "part” in paragraph two and to make other changes. The Commission, in Appendix C, calls these "editorial and clarifying changes.” If these changes were made to totally eliminate “substantial assistance to authorities" as a consideration under section 5K2.0, I submit that they violate the intent of 18 U.S.C. § 3553(b). In any event, I do not believe the changes eliminate, nor were they intended to eliminate, consideration of substantial assistance under section 5K2.0.

. It may be that some general guidance on departures for assistance will soon be provided by the Supreme Court. See United States v. Wade, 936 F.2d 169 (4th Cir.), cert. granted, -U.S. -, 112 S.Ct. 635, 116 L.Ed.2d 653 (1991) (issues addressed by the circuit court included whether the district court had authority, absent a motion filed by the government, to depart downward from a mandatory minimum sentence and whether the defendant is entitled to an explanation why the government refused to make a motion).