United States v. Maldonado-Acosta

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
APR 25 2000
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,
v.
No. 99-2136
GUILLERMO VALENTIN
MALDONADO-ACOSTA,

Defendant - Appellant.

Appeal from the United States District Court
for the District of New Mexico
(D.C. No. CR-98-429-MV)

SUBMITTED ON THE BRIEFS:

F. Mario Ortiz, Las Cruces, New Mexico, for the appellant.

John J. Kelly, US Attorney, and Fred J. Federici, Assistant US Attorney,
Albuquerque, NM, for the appellee.

Before BRISCOE, ANDERSON and LUCERO, Circuit Judges.

LUCERO, Circuit Judge.

United States Sentencing Guideline (“U.S.S.G.”) § 5K1.1 specifically states

that a downward sentencing departure for substantial assistance to the government
may be granted “upon motion by the government.” We have held that the

government’s motion for a departure for substantial assistance “is an unequivocal

condition precedent; the [sentencing] court may not act sua sponte in such

matters.” United States v. Vargas, 925 F.2d 1260, 1267 (10th Cir. 1991). This

Circuit has not yet decided, however, in the wake of Koon v. United States, 518

U.S. 81 (1996), which interpreted the general “other grounds for departure”

provision of the Guidelines, U.S.S.G. § 5K2.0, whether a sentencing court has the

authority to grant a defendant a downward departure for substantial assistance to

the government without the required motion from the government pursuant to

§ 5K1.1. Joining the other circuits that have considered this issue, we conclude

that § 5K1.1’s specific consideration of substantial assistance precludes its

consideration under § 5K2.0. We exercise jurisdiction pursuant to 28 U.S.C.

§ 1291 and affirm.

After pleading guilty to conspiracy with intent to distribute cocaine and

possession with intent to distribute cocaine, defendant-appellant Guillermo

Valentin Maldonado-Acosta was sentenced to 135 months imprisonment. He had

assisted agents with a controlled delivery and entered into a plea agreement under

which the government in its discretion could move the district court for a § 5K1.1

reduction. At sentencing, the government did not move for this reduction because

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Maldonado-Acosta “failed to fulfill his obligation [under the plea agreement] by

failing to disclose and identify the source for the cocaine.” (I. R. Doc. 56 at 3.)

Maldonado-Acosta filed a motion to compel performance of the plea

bargain, requesting that the district court grant him a downward departure for

substantial assistance even without a motion from the government under § 5K1.1.

The district court denied the motion and this appeal followed.

We review for clear error the district court’s factual findings regarding

sentencing and review de novo its legal interpretation of the Guidelines. See

United States v. Henry, 164 F.3d 1304, 1310 (10th Cir.), cert. denied, 119 S. Ct.

2381 (1999). Section 5K1.1 of the Guidelines states:

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.

As Maldonado-Acosta acknowledges, sentencing courts generally have no

authority to compel the government to file a downward departure motion under

§ 5K1.1 or to grant a downward departure under that section without a

government motion. See United States v. Perez, 955 F.2d 34, 35 (10th Cir. 1992).

The government’s motion “is an unequivocal condition precedent [and] the court

may not act sua sponte” to determine that a defendant provided substantial

assistance to the government. Vargas, 925 F.2d at 1267. This condition

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precedent limits the district court’s authority and “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 (1992).

There are exceptions to the general rule that a district court cannot grant a

sentencing reduction for substantial assistance without a motion from the

government. A district court can review the government’s discretionary refusal to

file a substantial assistance motion: “(1) if the refusal violates an agreement with

the government; (2) if the refusal was based on an unconstitutional motive such as

the defendant’s race or religion; or (3) in an egregious case where the prosecution

stubbornly refuses to file a motion despite overwhelming evidence that the

accused’s assistance has been so substantial as to cry out for meaningful relief.”

United States v. Cerrato-Reyes, 176 F.3d 1253, 1264 (10th Cir. 1999) (internal

quotations and citations omitted). On appeal, however, Maldonado-Acosta does

not seek review of the government’s discretionary decision under these

exceptions.

Rather, Maldonado-Acosta argues that, under the rationale of Koon v.

United States, 518 U.S. at 81, a sentencing court may grant a substantial

assistance departure without a motion from the government pursuant to U.S.S.G.

§ 5K2.0. He reasons that rendering substantial assistance, but not receiving a

reduction pursuant to § 5K1.1, can be a factor that takes his case outside the

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“heartland” because otherwise his sentence would conform to sentences of other

defendants convicted of the same offense who have not rendered substantial

assistance.

As interpreted by Koon, § 5K2.0 permits the sentencing court to depart

from the sentence imposed by the Guidelines if “certain aspects of the case [are]

unusual enough for it to fall outside the heartland of cases in the Guideline.” Id.

at 98; see also U.S.S.G. § 5K2.0 (permitting the sentencing court to “impose a

sentence outside the range established by the applicable guidelines, 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’”) (quoting 18 U.S.C. § 3553(b)). Even after Koon, however, a

departure for substantial assistance pursuant to § 5K2.0 is not permissible because

departures for substantial assistance are already “adequately taken into

consideration by the Sentencing Commission in formulating the guidelines,”

U.S.S.G. § 5K2.0—specifically, in § 5K1.1. There is, therefore, no warrant under

Koon for treating substantial assistance as a factor appropriate for consideration

under § 5K2.0. This result is in accord with the numerous other circuits that have

likewise held in the wake of Koon that § 5K2.0 does not authorize a sentencing

court to grant a departure for substantial assistance without a motion from the

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government requesting the departure pursuant to § 5K1.1. See United States v.

Cruz-Guerrero, 194 F.3d 1029, 1032 (9th Cir. 1999); United States v. Algeria,

192 F.3d 179, 189 (1st Cir. 1999); In re Sealed Case, 181 F.3d 128, 142 (D.C.

Cir.), cert. denied, 120 S. Ct. 453 (1999); United States v. Solis, 169 F.3d 224,

227 (5th Cir.), cert. denied, 120 S. Ct. 112 (1999); United States v. Abuhouran,

161 F.3d 206, 214 (3d Cir. 1998), cert. denied, 119 S. Ct. 1479 (1999).

The judgement of the district court is AFFIRMED.

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