United States v. Desselle

United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT May 22, 2006

_______________________ Charles R. Fulbruge III
Clerk
No. 05-30401
_______________________

UNITED STATES OF AMERICA,

Plaintiff-Appellant,

versus

ROBERT GUS “BOBBY” DESSELLE,
also known as Uncle,
also known as Tio, also known as Pops

Defendant-Appellee.
_________________________________________________________________

Appeal from the United States District Court
for the Middle District of Louisiana
________________________________________________________________

Before JONES, Chief Judge, and BARKSDALE and BENAVIDES, Circuit
Judges.

EDITH H. JONES, Chief Judge:

The United States appeals from the extent of the district

court’s departure for Desselle’s assistance to law enforcement

under U.S.S.G. § 5K1.1 and 18 U.S.C. § 3553(e). Because the

district court reversibly erred in allowing improper factors to

govern its decision, we VACATE and REMAND for resentencing.

BACKGROUND

Bobby Desselle worked as a funeral director at his

family’s funeral home in Baton Rouge. On the side, he sold large

quantities of cocaine and marijuana, earning a substantial profit

which he laundered through extravagant purchases and business
ventures. In 2004, Bobby Desselle pleaded guilty to money

laundering and conspiracy to distribute more than five kilos of

cocaine. As part of the plea agreement, Desselle cooperated with

officials, and the United States made a motion to reduce Desselle’s

sentence for his substantial assistance under both U.S.S.G. § 5K1.1

and 18 U.S.C. § 3553(e). Based on Desselle’s “minimal” substantial

assistance, however, the United States recommended only a two-level

reduction in his base offense level, which would have resulted in

a guideline range of 210-262 months. The district court calculated

Desselle’s total offense level at 39 (which had a guideline range

of 262-327 months), granted a ten-level reduction for Desselle’s

substantial assistance, and sentenced him to eighty-seven months,

the minimum within the guideline range after the ten-level

reduction was made. The departure reduced Desselle’s sentence by

sixty-seven percent from the minimum sentence for his calculated

offense level and nearly twenty-eight percent from the statutory

minimum of ten years.

In so departing and sentencing Desselle, the district

court explained that it considered the Guidelines, documents

presented to it, and “the medical status of the defendant”:

And I do not at all take what you did, Mr. Desselle,
lightly in any factor. You were a major drug dealer here
in this area. You, you know, got a lot of folks, you
know, wrapped up in a lot of things and – you know, and
all of you are now having to serve prison sentences.
You certainly, I think, were in it to make money,
and you made a lot of money. And your money has been
forfeited and your assets have been forfeited. And I
considered that aspect as well. You have lost, in that

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 sense, a lot of money, you know, by the forfeiture of all
of the property and assets that you have — or most of
your assets.
You, on the other hand, have serious medical
problems. You are now 57 years old. You know, 87 months
from now, I do not think you are going to be wanting to
go into the drug business. I think by that time you will
be of sufficient age to just, you know, live out your
life in a manner that does not involve dealing with drugs
and breaking the law.
I think that the sentence that I have imposed, based
on the circumstances of the offense, the history and the
characteristics of the defendant, meet the needs of
society; and it does reflect the seriousness of the
offense; and it will show people that you are eventually
going to get caught; and that you are eventually going to
go, you know, to prison; and that this is a just
punishment, along with the forfeitures that you have made
and the fine that will be paid, for the offense.
And I think that the sentence that I render will
also afford adequate deterrence to further criminal
conduct as much as those things have a tendency to do.
I do not think that any further or longer sentence would
protect the public from any crimes that you may commit in
the future. If that does not get the message to you,
then I do not think a longer sentence would. And it will
also, hopefully, provide you with needed medical care and
help you with the drug problem that you have.
Now, as I have said, this is within the range that
is applicable under the finding by the court. It is not
the lowest sentence that you could get; it is not the
highest sentence you would get, but I think it is
adequate for the needs here. I, you know, cannot
overlook the things that you have done, you know, on the
good side as well. But you are now going to have to pay
for what you have done.

This statement was made in open court. In a sealed proceeding, the

Government objected to the § 5K1.1 departure, but the district

court did not make any comments about why the extent of the

departure was reasonable or discuss the § 5K1.1 factors.

DISCUSSION

In sentencing defendants after Booker, district courts

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must first calculate the guideline range, a calculation which is

reviewed de novo. United States v. Smith, 440 F.3d 704, 706 (5th

Cir. 2006). If a sentencing court imposes a sentence that includes

an upward or downward departure as allowed by the Guidelines, this

court reviews both the decision to depart and the extent of that

departure for abuse of discretion. Id. at 707; see also United

States v. Simkanin, 420 F.3d 397, 415-16 (5th Cir. 2005) (using

that standard in reviewing an upward departure). “In assessing the

extent of a departure, we continue to look to our pre-Booker case

law for guidance.” Smith, 440 F.3d at 707. “A district court

abuses its discretion if it departs on the basis of legally

unacceptable reasons or if the degree of the departure is

unreasonable.” United States v. Harris, 293 F.3d 863, 871 (5th

Cir. 2002) (cited favorably in Simkanin, 420 F.3d at 416 & n.21).

Appellate courts must ultimately “determine whether the sentence

‘is unreasonable’ with regard to” the factors outlined in 18 U.S.C.

§ 3553(a). United States v. Booker, 543 U.S. 220, 261, 125 S. Ct.

738, 765 (2005).

Although judges have latitude under § 5K1.1, they must

“conduct[] a judicial inquiry into each individual case before

independently determining the propriety and extent of any departure

in the imposition of sentence.” United States v. Johnson, 33 F.3d

8, 9 (5th Cir. 1994). Section 5K1.1 requires the court to state

its reasons for imposing the departure, reasons “that may include,

but are not limited to, consideration of the following:”

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 (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.

Although the enumerated reasons are not the only factors

a court may consider in determining the extent of the § 5K1.1

departure, a court must begin to assess a § 5K1.1 departure using

the criteria listed by the Guidelines. Further, the additional

factors a court may consider must be related to determining the

“nature, extent, and significance of assistance.” See U.S.S.G.

§ 5K1.1 Application Note Background. We thus join the majority of

circuits in holding that the extent of a § 5K1.1 or § 3553(e)

departure must be based solely on assistance-related concerns.1

1
See, e.g., United States v. Pepper, 412 F.3d 995, 998 (8th Cir. 2005)
(even though § 5K1.1 provides a non-exhaustive list of factors to consider, the
maxim that words are known by their companions requires that any additional
factors a district court uses must be related to the defendant’s assistance);
United States v. Davis, 407 F.3d 1269, 1271 (11th Cir. 2005) (“While the
sentencing court had discretion under § 5K1.1 in deciding whether to depart from
the guidelines and the extent of that departure, it did not have the discretion
to consider factors unrelated to the nature and type of [the defendant’s]
assistance.”); United States v. Bullard, 390 F.3d 413, 416 (6th Cir. 2004) (so
holding); United States v. Auld, 321 F.3d 861, 867 (9th Cir. 2003) (same);
United States v. Pearce, 191 F.3d 488, 492 (4th Cir. 1999) (same); United States
v. Thomas, 11 F.3d 732, 737 (7th Cir. 1994) (“[A] downward departure from the
statutory minimum sentence for any purpose other than that provided in U.S.S.G.
§ 5K1.1 would conflict with and therefore violate the statute [§ 3553(e)].”);
United States v. Campbell, 995 F.2d 173, 175 (10th Cir. 1993) (so holding);
United States v. Mariano, 983 F.2d 1150, 1156 (1st Cir. 1993) (“While the
Commission’s list is representative rather than exclusive, the five enumerated
factors should be considered the mother lode of substantial assistance inquiries.

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 The district court here abused its discretion by

considering non-assistance-related factors in determining the

extent of the § 5K1.1 departure. See Harris, 293 F.3d at 871

(abuse of discretion if district court departs for an impermissible

reason); see also United States v. McVay, No. 04-13455, slip. op.

at 16 (11th Cir. May 5, 2006) (consideration of improper factors in

the context of a § 5K1.1 departure “was error as a matter of law

and must be reversed”). Although the district court had discretion

to decide “(1) whether to depart from the guidelines based on

substantial assistance, and (2) if so, the reasonable extent of

that departure, plainly it did not have discretion to consider

factors altogether unrelated to the nature and extent of [the

defendant’s] assistance.” Id. at 17.

Moreover, on the record, the extraordinary departure is

not supported by the nature of Desselle’s assistance. “An

extraordinary reduction must be supported by extraordinary

circumstances.” United States v. Dalton, 404 F.3d 1029, 1033 (8th

Cir. 2005). Without such a rule, there would be “little room for

greater departures for defendants who actually participate in

controlled buys, wear wires, give grand jury and trial testimony,

or are subjected to significant risk of injury or death to

. . . As a basis for departing, a court may consider mitigating factors only to
the extent that they can fairly be said to touch upon the degree, efficacy,
timeliness, and circumstances of a defendant’s cooperation.”). But see United
States v. Carey, 382 F.3d 387, 391 (3d Cir. 2004) (“On occasion, and despite the
terms of a government recommendation, factors other than those listed in 5K1.1
have been considered in deciding the extent of a departure.”).

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themselves or their family.” United States v. Haack, 403 F.3d 997,

1005-06 (8th Cir. 2005). Desselle did not follow instructions from

the FBI agents with whom he dealt and provided little helpful

information. These are clearly not the “extraordinary

circumstances” required to support a departure of sixty-seven

percent.

CONCLUSION

We VACATE and REMAND Desselle’s sentence for resentencing

in a manner consistent with § 5K1.1, this opinion, and the Supreme

Court’s decision in Booker.

VACATED AND REMANDED.

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