United States Court of Appeals
For the First Circuit
No. 01-2570
UNITED STATES OF AMERICA,
Appellee,
v.
JOHN ANDREW AHLERS,
Defendant, Appellant.
No. 01-2571
UNITED STATES OF AMERICA,
Appellee,
v.
PETER JORDAN AHLERS,
Defendant, Appellant.
_________________
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. D. Brock Hornby, U.S. District Judge]
Before
Selya, Circuit Judge,
Gibson* and Greenberg,** Senior Circuit Judges.
Gordon R. Blakeney, Jr. for appellant John Andrew Ahlers.
David Kreisler, with whom Daniel G. Lilley Law Offices, P.A.,
was on brief, for appellant Peter Jordan Ahlers.
Margaret D. McGaughey, Assistant United States Attorney
(Appellate Chief), with whom Paula D. Silsby, United States
Attorney, was on brief, for appellee.
September 30, 2002
___________
*Of the Eighth Circuit, sitting by designation.
**Of the Third Circuit, sitting by designation.
SELYA, Circuit Judge. After pleading guilty to crimes
that carry a statutorily imposed minimum sentence, John Andrew
Ahlers and Peter Jordan Ahlers asked the district court to consider
departing below that minimum based on grounds unrelated to their
substantial assistance to the authorities. The district court
ruled that it lacked the authority, under 18 U.S.C. § 3553(e), to
honor this request. Armed with nothing but the sharp point of
statutory language, the Ahlers brothers present us with the direct
question of whether a government motion for a downward departure to
reflect a defendant's substantial assistance removes the constraint
of a statutory minimum sentence and opens the door for
consideration of departure grounds unrelated to substantial
assistance. We hold that a substantial assistance motion does not
have so liberating an effect. Accordingly, we affirm the district
court's assessment of the limits that Congress placed upon its
sentencing authority under 18 U.S.C. § 3553(e).
I. BACKGROUND
During the 1990s, a drug kingpin, Robert Shimek, directed
a large-scale illicit enterprise reaching from Canada to New
Orleans. Typically, Shimek's henchmen would deposit illegal drugs
- marijuana, ecstacy, hashish, LSD, and the like - at remote
locations in Canada (usually near Vermont or Maine); runners would
smuggle the contraband in backpacks across the border and return
with the proceeds of previously consummated drug sales; their
accomplices in the United States would repackage the drugs for
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distribution; and other participants would market them at music
concerts and elsewhere.
For a period of roughly six months, the Ahlers brothers
worked the channels of this underground empire, driving Shimek to
various concerts, acting as couriers, and selling drugs. In
October of 1997, their swift chariot spun off the fast track: a
Florida state trooper apprehended them driving a vehicle that
contained two large nitrous oxide tanks, sheets of LSD, marijuana,
and sundry drug paraphernalia. They were found guilty of state
drug-trafficking charges and sentenced to serve 60 days in jail
(with additional time suspended). They maintain, with considerable
support in the record, that upon their release they ended their
intercourse with Shimek, kept to the straight and narrow, and
pursued exemplary lifestyles.
Notwithstanding this about-face, the past came back to
haunt them. On June 21, 2000, a federal grand jury handed up a
three-count indictment arising out of their participation in
Shimek's network. Count 1 alleged that the brothers conspired to
distribute, and to possess with intent to distribute, various
controlled substances. Count 2 alleged that they conspired to
import various controlled substances into the United States. Count
3 alleged that they possessed various controlled substances with
intent to distribute. See 21 U.S.C. §§ 841(a)-(b), 846, 952(a)-
(b), 960(a)-(b), 963. On February 7, 2001, both men pleaded guilty
to count 1 of the indictment.
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After tabulating all the drugs associated with the
offense of conviction and converting them to their marijuana
equivalent, see USSG §2D1.1, the probation department compiled a
presentence investigation report (PSI Report) that attributed a
total of 267 kilograms of marijuana equivalent to the defendants.
Crediting each of them with a three-level downward dip for
acceptance of responsibility, USSG §3E1.1, the PSI Report proposed
an adjusted offense level of 23. This produced a guideline
sentencing range (GSR) of 51-63 months for John Ahlers (who was
ranked in criminal history category II) and 57-71 months for Peter
Ahlers (who was ranked in criminal history category III). Finally,
the PSI Report noted that, by statute, the offense of conviction
called for a mandatory minimum sentence of 60 months. See 21
U.S.C. § 841(b)(1)(B).
At the disposition hearing, the government asked the
court to depart downward to reflect the Ahlers' substantial
assistance in the investigation of others. See 18 U.S.C. §
3553(e); USSG §5K1.1. At the same time, the Ahlers cross-moved for
additional departures based on extraordinary presentence
rehabilitation. See United States v. Craven, 239 F.3d 91, 99 (1st
Cir. 2001) (discussing such departures); United States v. Sklar,
920 F.2d 107, 115-17 (1st Cir. 1990) (similar); see generally USSG
§5K2.0. Pursuant to the plea agreement, the district court
dismissed counts 2 and 3 of the indictment. It then granted each
defendant a 21-month downward departure for substantial assistance,
but stopped there. The court took the position that it did not
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have any authority to further depreciate the statutory minimum
sentence based on a ground (like extraordinary presentence
rehabilitation) unrelated to the defendants' substantial
assistance.
Each defendant appeals from his 39-month incarcerative
sentence, challenging the "lack of authority" holding. We
consolidated the appeals for briefing and argument.
II. ANALYSIS
As said, the sole issue on appeal concerns the court's
power to depart below the statutory minimum sentence on a ground
unrelated to substantial assistance. Appellate jurisdiction from
a denial of a departure request attaches when the sentencing court
bases its action on a perception that it lacks the legal authority
to grant the request. See United States v. Pierro, 32 F.3d 611,
619 (1st Cir. 1994); United States v. Mariano, 983 F.2d 1150, 1153-
54 (1st Cir. 1993). Because the court below premised its refusal
to depart on such a perceived lack of authority, we have
jurisdiction to hear and determine these appeals. Moreover, the
appeals hinge on a quintessentially legal judgment, thus
engendering plenary review. Mariano, 983 F.2d at 1154.
Whether there is anything of substance to be decided is
another matter. Citing United States v. Chestna, 962 F.2d 103 (1st
Cir. 1992) (per curiam), the government hypothesizes that the issue
raised in these appeals is barred by the doctrine of stare decisis.
We start by testing that hypothesis.
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In Chestna, the government moved pursuant to 18 U.S.C. §
3553(e) and USSG §5K1.1 for a downward departure reflecting the
defendant's substantial assistance.1 962 F.2d at 104. The
defendant simultaneously moved for a downward departure based on
her unique family responsibilities. Id. at 104-05. She contended
that the government's motion for a substantial assistance departure
opened the door for consideration of other factors in determining
the degree of the departure. Id. at 105. We upheld the district
court's rejection of her claim. Id. at 106 (stating that any
additional factor not specifically listed in section 5K1.1
"necessarily would relate to the substance of the initiating
motion, i.e., a defendant's substantial assistance," in order to
affect the extent of the departure).
Contrary to the government's importunings, our decision
in Chestna does not conclusively refute the Ahlers' argument. In
that case, the defendant posited that a sentencing court could take
into account a factor unrelated to substantial assistance - family
circumstances - when determining the extent of such a departure.
The Ahlers, however, did not ask the lower court to consider an
extraneous factor (in their case, rehabilitation) as a basis for
enlarging a substantial assistance departure, but, rather,
proffered that factor as a separate and distinct ground for
1
In 18 U.S.C. § 3553(e), quoted infra, Congress ordained that
a substantial assistance departure could trump a statutorily
imposed mandatory minimum sentence. USSG §5K1.1 is the principal
guideline adopted by the Sentencing Commission to aid district
courts in fashioning substantial assistance departures.
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departure. This is an issue that we did not reach in Chestna. See
id. at 107. We reach it here.
As framed, the Ahlers' argument relies on their
interpretation of 18 U.S.C. § 3553(e). That statute reads:
Limited authority to impose a sentence below a
statutory minimum.-Upon motion from the
Government, the court shall have the authority
to impose a sentence below a level established
by statute as minimum sentence so as to
reflect a defendant's substantial assistance
in the investigation or prosecution of another
person who has committed an offense. Such
sentence shall be imposed in accordance with
the guidelines and policy statements issued by
the Sentencing Commission pursuant to section
994 of title 28, United States Code.
18 U.S.C. § 3553(e).
The Ahlers asseverate that when a sentencing court grants
a government motion for a substantial assistance departure, the
first textual sentence of this provision renders nugatory any
statutory minimum penal sentence, and that the second textual
sentence restores the court's full powers under the sentencing
guidelines to depart on other grounds (as if no mandatory minimum
existed). In the Ahlers' view, this means that the granting of a
government motion pursuant to section 3553(e) invariably authorizes
the sentencing court to impose a sentence below an otherwise
applicable statutory mandatory minimum based not merely on
substantial assistance but also on any other ground recognized
under the guidelines. Thus, their thesis runs, the sentencing
court should have entertained departure requests based on
extraordinary presentence rehabilitation.
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The force of this argument depends on the meaning of the
words that Congress wrote. To determine that meaning, we start
with the language of the statute. United States v. Charles George
Trucking Co., 823 F.2d 685, 688 (1st Cir. 1987). "In searching a
statute's text for a pellucid expression of congressional intent,
we . . . make a commonsense concession that meaning can only be
ascribed to statutory language if that language is taken in
context." Riva v. Commonwealth of Mass., 61 F.3d 1003, 1007 (1st
Cir. 1995). We presume that Congress intended all words and
provisions contained within a statute to have meaning and effect,
and we will not readily adopt any construction that renders any
such words or phrases meaningless, redundant, or superfluous.
Lopez-Soto v. Hawayek, 175 F.3d 170, 173 (1st Cir. 1999).
Based on the foregoing, it is apparent that our move from
the general to the specific necessitates establishing the context
from which the particular statute speaks. Riva, 61 F.3d at 1007.
Through the enactment of 18 U.S.C. § 3553, Congress directed the
federal courts as to how they should carry out their sentencing
responsibilities in criminal cases. Subsections (a) through (d)
establish the criteria and procedures to which a court must look in
imposing sentence. Subsections (e) and (f) deal with a court's
power to afford relief from statutorily imposed minimum sentences.
Comparing the form and function of these latter two subsections
should provide a panoramic view of the exceptions that Congress
wished to create to the otherwise mandatory imposition of statutory
minimum sentences.
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This approach requires that we compare the language of
section 3553(e) (the provision at issue in this case) with the
language of section 3553(f) (the only other proviso in section 3553
dealing with mandatory minimum sentences). Doing so, the
conclusion is inescapable that the language Congress used in these
two sections differs radically - and that difference hardly can be
dismissed as a mere fortuity.
18 U.S.C. § 3553(f) - the so-called "safety valve"
provision - reads as follows:
Limitation on applicability of statutory
minimums in certain cases.-Notwithstanding any
other provision of law, in the case of an
offense under [specified sections of the
criminal code not relevant here], the court
shall impose a sentence pursuant to guidelines
promulgated by the United States Sentencing
Commission under Section 994 of title 28
without regard to any statutory minimum
sentence, if the court finds at sentencing,
after the Government has been afforded the
opportunity to make a recommendation, that -
(1) the defendant does not have more than 1
criminal history point, as determined under
the sentencing guidelines;
(2) the defendant did not use violence or
credible threats of violence or possess a
firearm or other dangerous weapon (or induce
another participant to do so) in connection
with the offense;
(3) the offense did not result in death or
serious bodily injury to any person;
(4) the defendant was not an organizer,
leader, manager, or supervisor of others in
the offense, as determined under the
sentencing guidelines and was not engaged in a
continuing criminal enterprise, as defined in
section 408 of the Controlled Substances Act;
and
(5) not later than the time of the sentencing
hearing, the defendant has truthfully provided
to the Government all information and evidence
the defendant has concerning the offense or
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offenses that were part of the same course of
conduct or of a common scheme or plan, but the
fact that the defendant has no relevant or
useful other information to provide or that
the Government is already aware of the
information shall not preclude a determination
by the court that the defendant has complied
with this requirement.
18 U.S.C. § 3553(f).2 In United States v. Ortiz-Santiago, 211 F.3d
146 (1st Cir. 2000), we elaborated on the form and function of this
provision. We recognized that Congress enacted the safety valve to
mitigate the harsh effects of mandatory minimum sentences on
certain first-time offenders who played relatively minor roles in
drug-trafficking schemes. Id. at 150.
The clear and precise language that Congress used to
achieve this objective is striking. Congress unequivocally stated
that as long as a certain set of conditions were met, courts should
"[dis]regard . . . any statutory minimum sentence" and sentence in
accordance with the sentencing guidelines, "[n]otwithstanding any
other provision of law . . . ." 18 U.S.C. § 3553(f). Thus,
section 3553(f) demonstrates Congress's ability to deploy
unambiguous statutory language when it intends to authorize
sentencing judges to ignore the limitations imposed by statutory
minimum sentences and treat a "mandatory minimum" case like any
other.
Section 3553(e) speaks in much more circumspect terms.
The first textual sentence presumes the applicability of a
2
It is undisputed that neither of the defendants in this case
qualifies for the safety valve.
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statutorily established minimum penal sentence, ascribes the force
of law to that sentence, and grants a sentencing court
discretionary authority to impose a lesser sentence - but
conditions that authority upon the filing of a government motion.
Significantly, that textual sentence limits the authority to depart
to the extent necessary "so as to reflect a defendant's substantial
assistance . . . ." 18 U.S.C. § 3553(e). The second textual
sentence of section 3553(e) - the sentence upon which the Ahlers
chiefly rely - modifies its subject ("sentence") with the adjective
"such," thus referring back to the penal sentence contemplated in
the first textual sentence. Unlike section 3553(f) - under which
the mandatory minimum is to be disregarded once certain conditions
are met - section 3553(e) retains the mandatory minimum as a
reference point for a specific, carefully circumscribed type of
departure.3 See United States v. Aponte, 36 F.3d 1050, 1051 (11th
Cir. 1994). The sharp divergence between these regimes leads
inexorably to the conclusion that Congress had different plans in
mind for the operation and effect of the two provisions.
3
In this sense, section 3553(e) provides the only authority
for a court to sentence below a statutory minimum. After all,
there is no statutory minimum applicable to a defendant who reaches
the safe harbor of the safety valve provision. See Ortiz-Santiago,
211 F.3d at 150. This demonstrates a fundamental difference
between subsections (e) and (f): 18 U.S.C. § 3553(e) recognizes
and respects the sentence "established by statute as [a] minimum
sentence" and does not explicitly confer upon sentencing courts a
power to disregard it (instead granting limited authority to
sentence below it). In marked contrast, 18 U.S.C. § 3553(f)
directs courts to sentence "without regard to any statutory minimum
sentence," thus completely removing the erstwhile mandatory minimum
from the sentencing calculus.
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The Ahlers ignore this difference, modeling their
rendition of section 3553(e) after the actual operation of section
3553(f). But they offer no explanation as to why two provisions
with such different architecture and such different goals should be
deemed to march in lockstep. It is accepted lore that when
Congress uses certain words in one part of a statute, but omits
them in another, an inquiring court should presume that this
differential draftsmanship was deliberate. Lopez-Soto, 175 F.3d at
173. So it is here.
We think that the unique language in which Congress
couched section 3553(e) manifests an obvious purpose: once the
government moves for a sentence below the statutory minimum
pursuant to section 3553(e), the court has discretion to sentence
below that minimum in a manner that reflects the nature and extent
of the substantial assistance provided by the defendant - no more,
no less. This construction is supported most clearly in the text
by the placement of the limiting phrase "so as to reflect a
defendant's substantial assistance," which is attached to the main
clause that grants the court its authority to impose a sentence
below the statutory minimum. From this placement, the only logical
conclusion is that the authority granted is limited thereby.4
4
The Ahlers' reading of this sentence - that it completely
frees a court from the restraints of a statutory minimum penal
sentence once the court grants a government motion for a
substantial assistance departure - treats relief from a statutory
minimum as a quid pro quo when the government is satisfied with the
assistance. The Ahlers would have us interpret the sentence as if
it read: "Upon motion of the government reflecting a defendant's
substantial assistance . . . , the court shall have the authority
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Thus, the statute opens the door for a departure below the
otherwise applicable mandatory minimum - but only those reasons
related to the nature and extent of the defendant's substantial
assistance can figure into the ensuing sentencing calculus.
The case law, for the most part, is fully in accord with
this construction. See, e.g., United States v. Rabins, 63 F.3d
721, 727 (8th Cir. 1995); United States v. Thomas, 11 F.3d 732,
736-37 (7th Cir. 1993); United States v. Campbell, 995 F.2d 173,
175 (10th Cir. 1993); United States v. Valente, 961 F.2d 133, 134-
35 (9th Cir. 1992); United States v. Snelling, 961 F.2d 93, 97 (6th
Cir. 1991). The Ahlers dismiss these decisions out of hand, noting
that most of the courts in question have not been confronted with
the precise statutory construction argument that is proffered here.
We are convinced, however, that those courts have reached the
correct conclusion and that the Ahlers' argument, though ingenious,
does not call that conclusion into serious question.
The Ahlers counter-attack on four fronts. First, citing
United States v. Calle, 796 F. Supp. 853, 860-61 (D. Md. 1992),
they insist that our reading of section 3553(e) drains the
statute's second textual sentence of all meaning. To avoid that
result, they read that sentence to restore what they call the
district court's "full guideline powers" and to authorize
to impose a sentence below a level established by statute." This
reading contradicts Congress's placement of the limiting phrase
just discussed.
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departures based on any and all of the sentencing guidelines and
policy statements.
This construct overlooks the obvious: all federal courts
are full guidelines courts by virtue of section 3553(b), and the
sentencing guidelines fully incorporate statutorily imposed
mandatory minimum sentences through the mechanism of USSG §5G1.1.5
Thus, the determination of a guideline sentence occurs in a single
coherent process of which USSG §5G1.1 is a part. Viewed in that
light, section 3553(e)'s second textual sentence restricts the
court's reference to those guidelines and policy statements that
bear directly upon the desirability and extent of a substantial
assistance departure. In our opinion, that is why Congress used
the adjective "such" to modify the subject ("sentence") of the
second textual sentence. That usage plainly refers back to the
penal sentence mentioned in the previous text, that is, a sentence
fashioned "so as to reflect the defendant's substantial
assistance." The Calle court's contrary reading of the statute is
unconvincing.
Next, the Ahlers point out that some parts of section
3553 refer to specific subsections of 28 U.S.C. § 994, whereas
5
This guideline "describes how the statutorily authorized
maximum sentence, or a statutorily required minimum sentence, may
affect the determination of a sentence under the guidelines." USSG
§5G1.1, cmt. Pertinently, it provides that "[w]here a statutorily
required minimum sentence is greater than the maximum of the
applicable guideline range, the statutorily required minimum
sentence shall be the guideline sentence." Id. §5G1.1(b). When
the applicable GSR encompasses both a statutorily required minimum
sentence and a statutory maximum, a court can impose any sentence
between those two benchmarks. Id. §5G1.1(c).
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section 3553(e) does not. From this circumstance, they reason that
if Congress had intended the second sentence of section 3553(e) to
direct courts only to those guideline provisions pertaining to a
defendant's substantial assistance, it would have inserted a
specific reference to 28 U.S.C. § 994(n) (the provision directing
the Sentencing Commission to promulgate guidelines and policy
statements pertaining to substantial assistance). This argument
reads too much into our interpretation of section 3553(e).
In Mariano, we explained that although a sentencing
court's assessment of the substantiality of a defendant's
assistance should give special weight to the factors enumerated in
USSG §5K1.1,6 the "list is representative rather than exclusive."
983 F.2d at 1156. Thus, while a sentencing court is not free to
"consider any datum it pleases" when passing upon a motion for a
substantial assistance departure, the court may consider mitigating
factors, whether or not specified in section 5K1.1, "to the extent
that they can fairly be said to touch upon the degree, efficacy,
timeliness, and circumstances of a defendant's cooperation." Id.
Congress's decision not to cite to specific subsections of 28
U.S.C. § 994 dovetails perfectly with this analysis: it is
6
Section 5K1.1 is a guideline provision that traces its roots
directly to 28 U.S.C. § 994(n). See Mariano, 983 F.2d at 1154-55.
The factors that it enumerates are the court's evaluation of the
significance and usefulness of the defendant's assistance (giving
particular deference to the government's evaluation of that
assistance); the reliability of any information or testimony given
by the defendant; the timeliness, nature, and extent of the
assistance; and any danger to which the defendant or members of his
family was exposed as a result of the assistance. USSG
§5K1.1(a)(1)-(5).
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reasonable to assume, and adequately plausible for our purposes,
that Congress deliberately refrained from citing specific
subsections of 28 U.S.C. § 994 so as not to narrow this universe of
mitigating factors. Put another way, once the government has moved
for a departure pursuant to section 3553(e), a sentencing court,
following Congress's direction, should review all the guidelines
and policy statements promulgated by the Sentencing Commission
under 28 U.S.C. § 994 in order to determine an appropriate sentence
that reflects the nature and extent of the defendant's substantial
assistance.
The Ahlers also suggest that allowing consideration of
factors unrelated to substantial assistance will heighten a
defendant's incentive to cooperate with the authorities and thus
promote the core purpose of section 3553(e). This suggestion is
misdirected. Congress's intent was not to create the widest
possible incentives for cooperation, but, rather, to balance a
defendant's incentives with the benefits accruing to the
government. See Mariano, 983 F.2d at 1155. To achieve this
balance, Congress chose to enact statutory minimum sentences and
allow only one way out: cooperation with law enforcement. See 140
Cong. Rec. S12004 (daily ed. Aug. 18, 1994) (statement of Sen.
Hatch). Reworking this balance would not only undermine
legislative intent but also threaten the integrity of the system of
mandatory minimum sentencing so prized by Congress.
The Ahlers have a fallback position: they strive to
convince us that the relevant statutory language, if not clearly
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favorable to them, is at least ambiguous and thus subject to a
generous construction under the rule of lenity. We are not
persuaded.
In a criminal case, the rule of lenity requires a court
to resolve true statutory uncertainty in the accused's favor.
Bifulco v. United States, 447 U.S. 381, 387 (1980); United States
v. Nippon Paper Indus. Co., 109 F.3d 1, 7 (1st Cir. 1997). But the
sine qua non for the rule's application is genuine ambiguity, and
a statute is not ambiguous simply because litigants (or even an
occasional court) question its interpretation. Nippon Paper, 109
F.3d at 8. It is only when no reasonably clear meaning can be
gleaned from the text of a statute, leaving courts to guess at what
Congress intended, that the rule of lenity comes into play. Id.
In this case, the statute at issue - 18 U.S.C. § 3553(e)
- has a clear and plausible meaning. There is no principled way in
which it can be labeled ambiguous. Consequently, the rule of
lenity does not apply.
That ends the matter. Our reading of section 3553(e) is
a commonsense interpretation that comports with the language,
structure, and evident purpose of the law. It is consistent with
the conclusions of other appellate courts that have considered the
issue, e.g., Rabins, 63 F.3d at 727; Campbell, 995 F.2d at 175, and
none of the Ahlers' objections cast doubt upon it. We therefore
hold that section 3553(e) authorizes a court, once the government
moves pursuant thereto, to sentence a defendant below a statutorily
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imposed minimum but only to an extent that reflects the court's
assessment of the defendant's substantial assistance.
III. CONCLUSION
We need go no further. Even though we admire the Ahlers'
repentance and efforts at reform, we cannot reward that change of
course in the way that the Ahlers suggest. Because the court below
correctly apprehended that it lacked legal authority to grant the
Ahlers' motions for additional downward departures, we affirm its
sentencing determinations.
Affirmed.
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