Public-domain · open source
OpenJurist

4 F.3d 622

Docket No. 93-1911.

United States v. Baker

Eighth Circuit Court of Appeals

Submitted Aug. 18, 1993.

Decided Sept. 7, 1993.

Rehearing Denied Oct. 7, 1993.

Eighth Circuit Court of Appeals · decided 1993-09-07

Cited by 14 later decisions — most recently August 2002

9 federal appellate ·

2 counsel of record

Key passage — most relied on by later courts

“'cooperation with the [government] simply cannot be sufficiently extraordinary to warrant a departure under Sec. 5K2.0....'”

quoted by 2 later decisions, including United States v. John S. Roley, United States v. Lindsley Charles Frenette

“We first address the defendant’s contention that the sentencing court possessed the authority to impose probation as a sentence in this case. The issue is whether 18 U.S.C. § 3561 (a)(1) ... is limited in part by Section 3553(e) .... Section 3553(e) was intended by Congress to provide an incentive to defendants to furnish assistance to law enforcement official by moderating the rigorous inflexibility of mandatory sentences where the offender had rendered substantial assistance to the Government. To this end, the district judge was given the power, on motion of the Government attesting to the defendant’s assistance, to ‘impose a sentence below a level established by statute as a minimum sentence .... ’ The Sentencing Commission in turn, in Application Note 1 to § 5K1.1, has stated that ‘[ujnder circumstances set forth in 18 U.S.C. § 3553 (e) and 28 U.S.C. § 994 (n), as amended, substantial assistance in the investigation or prosecution of another person who has committed an offense may justify a sentence below a statutorily required minimum sentence.’ The Commission, however, has avoided deciding whether the prohibition against probation in Class A and B felony offenses under Section 3561(a)(1) should be treated in the same manner as a mandatory minimum term of imprisonment and subject to the later provisions of Section 3553(e). It declared that such a question was on that ‘may have to be addressed by the courts.’ As we view Section 3553(e), there is no logical distinction bet”

quoted by 1 later decision, including United States v. Fowlkes

Applies 18 U.S.C. § 3553 · 21 U.S.C. § 841 (§ 401 of the Controlled Substances Act)

Relies on Wade v. United States · Famor v. Brown · United States v. Romsey

Good law ✅— No negative treatment on recordhow we know

Decided 1993-09-07

View the full empirical analysis of this case →

¶1*623Edward J. Rogers, St. Louis, MO, argued, Stephen B. Higgins and John J. Ware appear on the brief, for appellant.

¶2Brian N. Brown, St. Louis, MO, argued, for appellee.

¶3Before FAGG, WOLLMAN, and HANSEN, Circuit Judges.

¶4HANSEN, Circuit Judge.

¶5Debbie Ann Baker pled guilty to one count of possession with intent to deliver cocaine. The district court sentenced her to five years of probation, and the government appealed. We reverse and remand for resentencing.

¶6I.

¶7On March 30, 1992, Baker was arrested at a St. Louis train station in possession of 198 grams of cocaine. On April 9, 1992, a grand jury returned a one-count indictment charging her with possession with intent to deliver cocaine, a violation of 21 U.S.C. §§ 841(a)(1) & 853(a)(1). On June 30,1992, she agreed in writing to assist the government by providing information about drug trafficking by other persons. On July 6, 1992, she entered her guilty plea. The district court originally scheduled sentencing for September 25,1992, but continued it four times, usually for the purpose of allowing Baker to complete her assistance.

¶8The presentence report calculated Baker’s offense level as 15 and her criminal history category as III, thus resulting in a sentencing range of 24-30 months. At the sentencing hearing on March 15,1993, Baker moved for a downward departure on the ground that she had provided information to the government. The district court granted the motion and sentenced Baker to five years of probation. In its written judgment, the court stated, in part:

Pursuant to § 5K2.0, downward departure is warranted because the defendant was required to inform the Government of circumstances involving a close relative, and ... the accusations were well known to .many other family members. The familial relationship made it most difficult for the defendant to believe that she had not fulfilled her obligations, even though the Government did not consider her efforts to be meaningful enough to warrant filing of the 5K1.1 motion. The Court finds that, subjectively, the defendant had fulfilled her obligations and was therefore entitled to the 5K1.1.

¶9(JtApp. at 7.)

¶10H.

¶11To determine whether the district court’s departure was proper, we ask (1) whether, as a matter of law, the circumstances relied upon by the district court are sufficiently unusual in kind or degree; (2) whether, as a question of fact, the circumstances justifying the departure actually ex*624ist; and (3) whether the extent of the departure is reasonable. See United States v. Sweet, 985 F.2d 443, 445 (8th. Cir.1993).

¶12The policy statement on which the district court relied for the downward departure provides, in part:

[T]he 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.”

¶13U.S.S.G. § 5K2.0, p.s. (quoting 18 U.S.C. § 3553(b)). The Sentencing Commission, however, has considered departures based on a defendant’s assistance to the government and has provided a means for implementing such departures. See U.S.S.G. § 5K1.1, p.s. Departures are permitted under § 5K1.1 if a “defendant has provided substantial assistance in the investigation or prosecution of another person who has committed an offense.” Id.*Thus, the district court’s departure in this case would be permitted by law only if the circumstances concerning Baker’s assistance are present in a kind or to a degree that the Sentencing Commission did not contemplate when it promulgated § 5K1.1.

¶14Baker argues that her cooperation is unusual because it exposed her to “ostracism” and “suspicion” within her extended family. (See Appellee’s Br. at 5, AD-3.) The Sentencing Comihission, however, has directed courts ruling on § 5K1.1 motions to consider, among other factors, whether a defendant who has assisted the government suffered “injury” or endured “danger or risk of injury.” See U.S.S.G. § 5Kl.l(a)(4), p.s. The repercussions Baker experienced are mild forms of injury or risk of injury and thus were considered by the Sentencing Commission. Furthermore, Baker’s subjective belief that she had complied with the terms of the cooperation agreement is relevant only to the question of whether she did comply, which is merely a factor a district court should consider when determining the extent of a departure under § 5K1.1, see U.S.S.G. § 5Kl.l(a)(l)-(3), p.s. It is clear that all aspects of Baker’s assistance to the government fit squarely within the boundaries of § 5K1.1. Thus, the circumstances of Baker’s assistance are not different in “kind” or quality from the circumstances considered by the Sentencing Commission when it promulgated § 5K1.1.

¶15The district court’s departure also cannot be justified on the ground that circumstances considered by the Sentencing Commission are “present to a degree substantially in excess of that which ordinarily is involved.” U.S.S.G. § 5K2.0’, p.s. The Sentencing Commission has not placed absolute limits on the extent to which a district court may depart under § 5K1.1. Absent a statutory mandatory minimum sentence, a situation not present in this case, a district court may depart all the way down to a sentence of no imprisonment under § 5K1.1 so long as that departure is “reasonable” in light of the defendant’s assistance. See United States v. Snelling, 961 F.2d 93, 96-97 (6th Cir.1991); United States v. Pippin, 903 F.2d 1478, 1485 (11th Cir.1990); United States v. Wilson, 896 F.2d 856, 859-60 (4th Cir.1990); United States v. Emanuel, 734 F.Supp. 877, 878-79 (S.D.Iowa 1990). The availability of an unlimited departure proves that § 5K1.1, if it recognizes a defendant’s assistance at all, cannot recognize it inadequately. Thus, “[cooperation with the prosecutors simply cannot be sufficiently extraordinary to warrant a departure under § 5K2.0----” United States v. Aslakson, 982 F.2d 283, 284 (8th Cir.1992), cert. denied, — U.S. -, 113 S.Ct. 1875, 123 L.Ed.2d 493 (1993). The *625circumstances of Baker’s assistance are not present, and cannot be present, to a “degree” or a quantity not considered by the Sentencing Commission when it promulgated § 5K1.1.

¶16We hold that the circumstances relied upon by the district court are not sufficiently unusual in kind or degree to permit circumvention of § 5K1.1. We need not determine whether those circumstances actually exist or whether the departure was reasonable.

¶17III.

¶18We reverse the judgment of the district court and remand for resentencing consistent with this opinion.

/4/f3d/622 · .json · Public domain