United States v. Underwood

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 94-10432

UNITED STATES OF AMERICA
Plaintiff-Appellee,

versus

JERRY DURRELLE UNDERWOOD,
Defendant-Appellant.

Appeal from the United States District Court
for the Northern District of Texas

August 2, 1995

Before WISDOM, DUHÉ and BENAVIDES, Circuit Judges.

BENAVIDES, Circuit Judge:

This case presents the question whether U.S.S.G. § 5K1.1, p.s.

is an ultra vires act of the United States Sentencing Commission.

Pursuant to a plea agreement, Jerry Durrelle Underwood pleaded

guilty to possession of counterfeit currency in violation of 18

U.S.C. § 474. That plea agreement provided that the government

retained discretion whether to file a motion for downward departure

pursuant to § 5K1.1. The government chose not to file such a

motion. Underwood now appeals, arguing among other things, that §

5K1.1, which is designated a policy statement, is invalid because

Congress mandated the creation of a "guideline" and not a "policy

statement." Finding that § 5K1.1 is not invalid, we affirm.
 I. FACTS AND PROCEDURAL HISTORY

Underwood pleaded guilty to an information charging him with

possession of counterfeit currency in violation of 18 U.S.C. § 474.

Prior to entry of the guilty plea, Underwood and the government

entered into a plea agreement in which Underwood agreed to be

debriefed and/or to testify on behalf of the government regarding

his participation in and knowledge of criminal activities. The

government agreed to file a U.S.S.G. § 5K1.1 motion for a downward

departure if Underwood's cooperation rose to the level of

"substantial assistance." The plea agreement provided that the

filing of a § 5K1.1 motion and the determination whether

Underwood's assistance was "substantial" were within the sole

discretion of the government.

Faced with the government's decision not to file a § 5K1.1

motion, Underwood moved for specific performance of the plea

agreement or, alternatively, for an order declaring § 5K1.1 invalid

because it is a policy statement rather than a guideline or because

it was promulgated as a rule of practice and procedure. The

district court denied the motion for specific performance of the

plea agreement. The district court also rejected Underwood's

constitutional challenges to § 5K1.1.

At the sentencing hearing, the district court reiterated its

holding that the government had retained its discretion to

determine whether Underwood had rendered substantial assistance and

that, accordingly, it was not empowered to order specific

performance of the plea agreement unless it determined that the

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government breached the plea agreement. Although the district

court gave Underwood the opportunity to withdraw his guilty plea,

he declined. The district court refused again to order specific

performance of the plea agreement. The district court sentenced

Underwood to a term of imprisonment of 24 months.

II. ULTRA VIRES CLAIM

As he did in the district court, Underwood contends on appeal

that the Sentencing Commission exceeded its authority when it

promulgated § 5K1.1, a "policy statement," because Congress

mandated the creation of a "guideline" in 28 U.S.C. § 994(n).

Underwood argues that the Sentencing Commission's action was ultra

vires, rendering § 5K1.1 invalid. Cf. United States v.

Bellazerius, 24 F.3d 698 (5th Cir.), cert. denied, __ U.S. __, 115

S.Ct. 375 (1994) (this Court held that Sentencing Commission

exceeded its authority when it included an offense as a trigger for

a career offender enhancement that the authorizing statute did not

provide). Section 994(n) provides as follows:

The Commission shall assure that the guidelines reflect
the general appropriateness of imposing a lower sentence
than would otherwise be imposed, including a sentence
that is lower than that established by statute as a
minimum sentence, to take into account a defendant's
substantial assistance in the investigation or
prosecution of another person who has committed an
offense.

(emphasis added).

"Review of sentences imposed under the guidelines is limited

to a determination whether the sentence was imposed in violation of

law, as a result of an incorrect application of the sentencing

guidelines, or was outside of the applicable guideline range and

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was unreasonable." United States v. Matovsky, 935 F.2d 719, 721

(5th Cir. 1991) (citing 18 U.S.C. § 3742(e)). Underwood claims

that he was sentenced in violation of the law. Cf. United States

v. Gardner, 18 F.3d 1200, 1201 n.2 (5th Cir.) (sentence is in

violation of the law if it is pursuant to a guideline without

statutory authorization), cert. denied, __ U.S. __, 115 S.Ct. 212

(1994). We review the district court's application of the

sentencing guidelines de novo, while reviewing findings of fact

under a clearly erroneous standard. United States v. Brown, 7 F.3d

1155, 1159 (5th Cir. 1993).

A. Statutory Construction

Underwood relies on the reasoning set forth in the concurring

opinion in United States v. Dawson, 990 F.2d 1314, 1317-19 (D.C.

Cir. 1993) (Edwards, J. concurring), which involved this precise

issue. Although there have been numerous challenges to § 5K1.1, a

policy statement that deals with the general appropriateness,

circumstances, and conditions for departure from a guideline

sentence based on substantial assistance to authorities,1 research

has revealed no other case addressing the precise issue raised

herein.2 Similarly, a plethora of commentators have written much

1
Section 5K1.1 provides, in pertinent part, the following:
"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."
2
While we have not addressed the issue in the present
context, we have previously recognized that § 5K1.1 in fact
implements the directive contained in § 994(n). See e.g. United
States v. White, 869 F.2d 822, 828 (5th Cir. 1989), cert. denied,
490 U.S. 1112 (1989); see also, United States v. Wills, 35 F.3d

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concerning the validity and application of § 5K1.1,3 but only two

passing references to this precise issue were uncovered. Daniel J.

Freed, Federal Sentencing in the Wake of Guidelines: Unacceptable

Limits on the Discretion of Sentencers, 101 Yale L.J. 1681, 1730

(1992); Hon. Bruce M. Selya & John C. Massaro, The Illustrative

Role of Substantial Assistance Departures in Combatting Ultra-

Uniformity, 35 Boston College L. Rev. 799, 845 n.54 (1994).4

In any event, in Dawson, because the issue was raised for the

first time on appeal, the majority opinion did not discuss the

merits of the claim but simply concluded that there was no plain

1192, 1195 & n.2 (7th Cir. 1994).
3
See e.g., David Fisher, Fifth Amendment -- Prosecutorial
Discretion Not Absolute: Constitutional Limits on Decision not to
File Substantial Assistance Motions, 83 J. Crim. L. & Criminology
744 (1993); William T. Harrington, Survey of First Circuit Law
1991-1992, Topical Survey Criminal Procedure, 26 Suffolk U. L. Rev.
891 (1992); Kimberly S. Kelley, Comment, Substantial Assistance
Under the Guidelines: How Smitherman Transfers Sentencing
Discretion from Judges to Prosecutors, 76 Iowa L. Rev. 187 (1990);
Cynthia Kwei Yung Lee, Prosecutorial Discretion, Substantial
Assistance, and the Federal Sentencing Guidelines, 42 UCLA L. Rev.
105 (1994); Cynthia K. Y. Lee, The Sentencing Court's Discretion to
Depart Downward in Recognition of a Defendant's Substantial
Assistance: A Proposal to Eliminate the Government Motion
Requirement, 23 Ind. L. Rev. 681 (1990); Jonathon D. Lupkin, 5K1.1
and Substantial Assistance Departure: The Illusory Carrot of the
Federal Sentencing Guidelines, 91 Colum. L. Rev. 1519 (1991);
Philip T. Masterson, Eliminating the Government Motion Requirement
of Section 5K1.1 of the Federal Sentencing Guidelines -- A
Substantial Response to Substantial Assistance: United States v.
Gutierrez, 24 Creighton L. Rev. 929 (1991); William J. Powell &
Michael T. Cimino, Prosecutorial Discretion Under the Federal
Sentencing Guidelines: Is the Fox Guarding the Hen House?, 97 W.
Va. L. Rev. 373 (1995).
4
Interestingly, an amendment to §5K1.1 was proposed that
would delete the government motion requirement. U.S. Sentencing
Commission, Sentencing Guidelines and Policy Statements for Federal
Courts: Notice, 57 Fed. Reg. 90, 112 (proposed Jan. 2, 1992). The
Sentencing Commission has not adopted it.

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error. Dawson's defaulted argument was based on the distinction

that § 994(a) made between "guidelines" and "general policy

statements." 990 F.2d at 1317.5 Dawson argued "that a

straightforward reading of the statute reveals that guidelines and

policy statements are quite distinct, for a policy statement

presupposes--indeed, cannot exist apart from--a guideline that

addresses the same subject." 990 F.2d at 1318. Thus, he argued

that the congressional mandate of § 994(n) was violated when the

commission promulgated a policy in lieu of a guideline, and because

it promulgated a policy statement in the absence of a guideline

addressing departures based on the defendant's substantial

assistance.

The government countered that the term "guidelines" in §

994(n) broadly referred to both guidelines and policy statements,

and thus, the commission had the discretion to determine which to

promulgate notwithstanding the express reference to "guidelines."

990 F.2d at 1318. In his concurrence, Judge Edwards found this

argument untenable and stated that the statute belied such an

assumption:

Section 994(a) draws an unequivocal distinction between
"guidelines," 28 U.S.C. § 994(a)(1), and "general policy

5
We note that Underwood correctly asserts that amendments to
the guidelines must be submitted to Congress for approval, but not
amendments to policy statements. Headrick, 963 F.2d at 780 (citing
28 U.S.C. § 994(p)). Section 5K1.1, however, was submitted to
Congress along with the rest of the initial policy statements and
guidelines. 52 Fed. Reg. 44674 (1987) ("The initial sentencing
guidelines and policy statements were submitted to Congress on
April 13, 1987."); See also United States v. Kelley, 956 F.2d 748,
753 (8th Cir. 1992) (Congress[had] the same chance to disapprove
the policy statement as it had to disapprove guidelines.").

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 statements regarding application of the guidelines." 28
U.S.C. § 994(a)(2) [emphasis in opinion]. Other sections
of the statute make explicit reference to guidelines,
general policy statements, or both. See, e.g., 28 U.S.C.
§ 994(a)(3) (referring specifically to "guidelines or
general policy statement"); § 994(b)(1) (referring
specifically to "the guidelines promulgated pursuant to
subsection (a)(1)"); § 994(c) (referring specifically to
"guidelines and policy statements"); § 994(v) (referring
specifically to "general policy statements promulgated
pursuant to subsection (a)(2)").

Id.

Judge Edwards then concluded that Congress made deliberate use

of the words "guidelines" and "policy statements" in the statute.

Id. Because "[t]he normal rule of statutory construction assumes

that identical words used in different parts of the same act are

intended to have the same meaning,"6 Dawson's argument appears, at

first blush, persuasive. However, we are of the opinion that the

concurrence in Dawson inappropriately focuses on the word

"guidelines" while ignoring the context. As explained below, a

closer examination of the statute reveals that Dawson's argument is

based on a flawed premise, namely that 28 U.S.C. § 994(n) mandated

the issuance of a guideline.

In simple terms, Congress' instructions to the Sentencing

Commission fall into four general categories. Congress can

instruct the Commission to issue guidelines;7 Congress can

instruct the Commission to issue policy statements;8 Congress can

6
Sorenson v. Secretary of Treasury, 475 U.S. 851, 860, 106
S.Ct. 1600, 1606 (1986) (internal quotation marks and citation
omitted).
7
See e.g. 28 U.S.C. § 994(h).
8
See e.g. 28 U.S.C. §§ 994(a)(2)(A) through 994(a)(2)(F).

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instruct the Commission to issue either a guideline or a policy

statement;9 and, finally, Congress can instruct the Commission to

implement a certain Congressionally determined policy in the

guidelines as a whole.10

The specific language of each subsection of 994 determines

into which of the four categories of instructions it falls.11 After

comparing the language of the different subsections of 994, it is

apparent that when Congress intended that the Commission enact a

"guideline," Congress used the following phrases: "shall

promulgate . . . guidelines" (994(a)(1)); "shall assure that the

9
See e.g. 28 U.S.C. § 994(a)(3).
10
See e.g. 28 U.S.C. § 994(e). The Sentencing Commission's
authority to issue a policy statement in this circumstance arises
from the general powers vested in it pursuant to 28 U.S.C. §
994(a)(2). Section 994(a), in relevant part, provides,

The Commission...shall promulgate and distribute to all
courts of the United States and to the United States
Probation System--

M M M M

(2) general policy statements regarding
application of the guidelines or any other
aspect of sentencing or sentence
implementation that in the view of the
Commission would further the purposes set
forth in section 3553(a)(2) of title 18,
United States Code....
11
Compare 28 U.S.C. § 994 (h) ("The Commission shall assure
that the guidelines specify a sentence to a term of imprisonment at
or near the maximum...."), that resulted in the guideline found in
§ 4B1.1, with, 28 U.S.C. § 994 (e) ("The Commission shall assure
that the guidelines and policy statements...reflect the general
inappropriateness of considering the education, vocational skills,
employment record, family ties and responsibilities, and community
ties of the defendant"), that resulted in the policy statements
found in §§ 5H1.1 to 5H1.12.

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guidelines specify" (994(h) and (i)). (emphasis added in both).

In contrast, when a subsection of 994 provided that the Commission

shall assure that the guidelines or the guidelines and policy

statements "reflect" the general appropriateness or

inappropriateness of a certain proposition or point of view, it is

apparent that Congress was not mandating the promulgation of a

specific guideline. We conclude that the final category of

instructions (as described above) may be implemented by drafting

individual guidelines with Congressional policy in mind, or, as in

the case of § 994(n) by drafting a policy statement generally

applicable to the guidelines as a whole. Rather than mandating the

promulgation of a specific guideline for downward departure based

on substantial assistance, Congress, in § 994(n), was instructing

that the guidelines as a whole should "reflect" the appropriateness

of such a departure. Thus, § 5K1.1 is a proper response to

Congress' mandate.

Moreover, even if § 994(n) is interpreted to mandate that a

guideline reflect the general appropriateness of downwardly

departing for substantial assistance, we find that the Sentencing

Commission promulgated such a guideline. In U.S.S.G. § 1B1.1, a

guideline, the Sentencing Commission set forth the basic step-by-

step application principles or instructions regarding how to apply

the sentencing guidelines and determine a defendant's sentence.

Section 1B1.1(i), the final step of the instructions, concerns,

among other things, departures from the guideline range. In §

1B1.1(i), the Sentencing Commission specifically referred to part

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K of Chapter Five regarding departures, which includes the

provision at issue in the case at bar, § 5K1.1. By promulgating

the Congressionally approved guideline § 1B1.1(i), which references

part K of Chapter 5 in relation to departures, the Sentencing

Commission clearly fulfilled Congress' directive to "assure that

the guidelines reflect the general appropriateness of imposing a

lower sentence than would otherwise be imposed . . . to take into

account a defendant's substantial assistance in the investigation

or prosecution of another person who has committed an offense." 28

U.S.C. § 994(n) (emphasis added). We therefore conclude that §

5K1.1, either by itself or in conjunction with § 1B1.1(i),

satisfies Congress' directive in § 994(n).

B. § 5K1.1 and 18 U.S.C. § 3553(e)

Section 5K1.1 can also be viewed as a policy statement

addressing "any other aspect of sentencing or sentence

implementation." 28 U.S.C. 994(a)(2). We have previously analyzed

the relationship among § 5K1.1, 28 U.S.C. § 994(n), and 18 U.S.C.

§ 3553(e). United States v. Beckett, 996 F.2d 70 (5th Cir. 1993).

Title 18 U.S.C. § 3553(e) provides that:

Upon motion of 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.

Additionally, the commentary to § 5K1.1 provides that:

Under circumstances set forth in 18 U.S.C. § 3553(e) and
28 U.S.C. § 994(n), as amended, substantial assistance in

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 the investigation or prosecution of another person who
has committed an offense may justify a sentence below a
statutorily required minimum sentence.

U.S.S.G. § 5K1.1, comment. n.1.

The dispositive issue in Beckett was whether § 3553(e) and §

5K1.1 "provide for separate and distinct methods of departure, or

whether they are intended to perform the same function." Beckett,

996 F.2d at 72. We concluded that, "[b]ased on a combined reading

of [§ 5K1.1, § 3553(e), and § 994(n)], . . . there is a direct

statutory relationship between § 5K1.1 and § 3553(e) of such a

character as to make § 5K1.1 the appropriate vehicle by which §

3553(e) may be implemented." Thus, we held that the district court

had the authority to depart below a statutory minimum sentence when

the government filed a motion for downward departure pursuant to §

5K1.1, but specifically did not invoke 18 U.S.C. § 3553(e).12

12
We found the analysis of the Second and Ninth Circuits more
persuasive than that of the Eighth Circuit, which found that the
district court did not have the authority to depart below the
statutory minimum sentence when the government filed a § 5K1.1
motion but did not invoke 18 U.S.C. § 3553(e). Beckett, 996 F.2d
at 72-74 (citing United States v. Cheng Ah-Kai, 951 F.2d 490 (2d
Cir. 1991); United States v. Keene, 933 F.2d 711 (9th Cir. 1991);
United States v. Rodriguez-Morales, 958 F.2d 1441 (8th Cir.), cert.
denied, __ U.S. __, 113 S.Ct. 375, (1992)). We quoted the Ninth
Circuit's conclusion that:

In light of the substantial cross references between
5K1.1, 3553(e) and 994(n), we conclude that 994(n) and
5K1.1 do not create a separate ground for a motion for
reduction below the guidelines exclusive of 3553(e)'s
provision for reduction below the statutory minimum.
Rather, 5K1.1 implements the directive of 994(n) and
3553(e), all three provisions must be read together in
order to determine the appropriateness of a sentence
reduction and the extent of any departure.

Beckett, 996 F.2d at 74 (quoting Keene, 933 F.2d at 714).
Subsequent to Beckett, the Seventh Circuit agreed with this Court's

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After Beckett, it is clear that, even if we were to assume ad

arguendo that § 5K1.1, standing on its own or in conjunction with

§ 1B1.1(i), does not fulfill the statutory mandate of 28 U.S.C. §

994(n), it nevertheless is not invalid because it implements the

statutory mandate of § 3553(e). In other words, because we have

held that § 5K1.1 is the appropriate vehicle to implement a

statute, by definition, the Sentencing Commission did not exceed

the authority given to it by Congress when it enacted § 5K1.1.13

In short, § 5K1.1 is not an ultra vires act. See Black's Law

Dictionary 1522 (6th ed. 1990) (Ultra vires is defined as "[a]n act

performed without any authority to act on subject.").

We recognize that the two provisions (§ 5K1.1 and § 3553(e))

are not identical in that the former specifies departures below the

guideline range and the latter specifies departures below the

minimum statutory sentence. This appears to be a difference

without distinction in that a downward departure from the guideline

range necessarily is subsumed within a departure below the

statutory minimum sentence, and this Court has held that § 5K1.1 is

sufficient to implement a departure from the statutory minimum

sentence. Moreover, Beckett teaches that once the government files

a motion for downward departure based on substantial assistance,

position, but the Third Circuit (over a dissent) came to the
opposite conclusion. United States v. Wills, 35 F.3d 1192 (7th
Cir. 1994); United States v. Melendez, 55 F.3d 130 (3d Cir. 1995).

13
28 U.S.C. § 994(n) and 18 U.S.C. § 3553(e) were enacted
prior to the effective date (1987) of the initial guidelines, which
included § 5K1.1. See Anti-Drug Abuse Act of 1986, Pub. L. No. 99-
70, §§ 1007 and 1008, 100 Stat. 3207-7 (1986).

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the extent of the departure comes within the district court's

discretion. See also United States v. Hernandez, 17 F.3d 78, 83

(5th Cir. 1994) ("Section 5K1.1 governs all departures from

guideline sentencing for substantial assistance, and its scope

includes departures from mandatory minimum sentences permitted by

18 U.S.C. § 3553(e).") (citation and internal quotation marks

omitted). A finding that § 5K1.1 is the appropriate vehicle to

implement greater departures from the statutory minimum sentence,

but not the lesser departures from the guideline range, would be

contrary to the teachings in Beckett. Such a holding would ignore

the pronouncement that the provisions be read together. Further,

it would fly in the face of our conclusion that departures based on

substantial assistance may not be compartmentalized. We conclude

that § 5K1.1 is the appropriate mechanism by which the departure

contemplated in the two statutes may be implemented.

For the foregoing reasons, we must reject Underwood's claim

that § 5K1.1 is an ultra vires act by the Sentencing Commission.14

SPECIFIC PERFORMANCE CLAIM

Underwood contends that he is entitled to specific performance

of the plea agreement and that the district court should have

14
Underwood also argues that the government motion provision
of § 5K1.1 is invalid because the Sentencing Commission lacked
authority to promulgate a rule of practice and procedure. We find
this argument to be without merit. Additionally, although
Underwood does not ask for relief based on the separate argument
that because § 5K1.1 is a policy statement it is not binding, we
note that the Seventh and Eighth Circuits have specifically
rejected that argument. United States v. Wills, 35 F.3d 1192, 1195
n.2 (7th Cir. 1994); United States v. Kelley, 956 F.2d 748, 757
(8th Cir. 1992).

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determined whether he provided substantial assistance to the

government. Section "5K1.1 does not require the government to move

for a downward departure if the defendant provides substantial

assistance, but rather grants the government discretionary power to

make such a motion." United States v. Garcia-Bonilla, 11 F.3d 45,

46 (5th Cir. 1993) (citing Wade v. United States, 504 U.S. 181, 112

S.Ct. 1840, 1844 (1992)); see United States v. Jackson, 22 F.3d

583, 585-86 (5th Cir. 1994) (although defendant did cooperate with

government agents, government was not required to move for downward

departure). Under Wade, the government's refusal to move for

downward departure cannot be remedied unless the government relied

upon an unconstitutional motive in refusing to file the motion.

Garcia, 11 F.3d at 46. Underwood does not contend that the

government relied upon an unconstitutional motive, only that he was

unfairly misled into pleading guilty.

Under Wade, the government may bargain away its discretion.

Garcia, 11 F.3d at 46-47. Underwood argues that the government

bargained away its discretion to withhold the § 5K1.1 motion

because he had already rendered assistance to the government at the

time the plea agreement was filed and by the time Underwood entered

his guilty plea. At that time, Underwood argues, the government

already knew that it would not move for a downward departure.

Therefore, Underwood claims he was party to an illusory agreement

which did not benefit him and which could not have reflected his

true understanding regarding the substance of the agreement. These

facts do not demonstrate that the government bargained away its

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discretion to determine whether Underwood's assistance was

substantial.

The plea agreement contains an unambiguous reservation of the

government's discretionary authority under § 5K1.1. Although the

agreement was filed after Underwood was debriefed, Underwood admits

in his brief that the agreement was executed before he was

debriefed. There is nothing in the record to indicate that the

government bargained away its discretion. Underwood's third issue

is without merit.

CONCLUSION

For the above stated reasons, the judgment of the district

court is AFFIRMED.

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