United States v. Melendez ( 1995 )

Opinions of the United
1995 Decisions States Court of Appeals
for the Third Circuit
5-22-1995
United States v Melendez
Precedential or Non-Precedential:
Docket 93-5755
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UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
N0. 93-5755
UNITED STATES OF AMERICA
v.
JUAN MELENDEZ
Appellant
On Appeal From the United States District Court
For the District of New Jersey
(D.C. Crim. Action No. 92-cr-00713-2)
Argued February 16, 1995
BEFORE: STAPLETON and COWEN, Circuit Judges, and
HUYETT, District Judge*
(Opinion Filed May 22, 1995)
Patrick A. Mullin (Argued)
25 Main Street
Court Plaza North
Hackensack, N.J. 97601
Attorney for Appellant
Faith S. Hochberg
United States Attorney
Victor Ashrafi (Argued)
Chief, Appeals Division
970 Broad Street
Newark, N.J. 07102
Attorneys for Appellee
* Honorable Daniel H. Huyett, 3rd, United States District Judge
for the Eastern District of Pennsylvania, sitting by designation.
OPINION OF THE COURT
STAPLETON, Circuit Judge:
Juan Melendez appeals his sentence. The first issue
presented concerns a district court's authority to depart
downward from a statutory minimum sentence based upon the
defendant's substantial assistance with a criminal investigation
where the government has moved under USSG §5K1.1 for a departure
below the U.S. Sentencing Guideline range but has not moved under
18 U.S.C. § 3553(e) for a departure below the statutory minimum.
We hold that, under such circumstances, a district court's
authority under §5K1.1 to depart below the Sentencing Guideline
range does not permit it to depart below a lower minimum sentence
set by statute. The second issue concerns Melendez's motion for
a downward departure pursuant to application note 17 to USSG
§2D1.1. We agree with the district court that §2D1.1 application
note 17 does not permit a district court to depart downward from
a statutory minimum sentence. The final issue concerns
Melendez's contention that the district court should have
permitted him to withdraw his guilty plea. The record
establishes that Melendez in fact did not attempt to withdraw his
plea before the district court.
I.
Melendez and codefendant Edwin Moya were approached by
confidential informants of the United States Customs Service
posing as importers and transporters of cocaine. This initial
contact led to several meetings, during which Melendez, Moya, and
the confidential informants discussed the availability of cocaine
for distribution. The discussions culminated in a meeting during
which Melendez and Moya gave the confidential informants $10,000
as a deposit toward the transportation expenses for 24 kilograms
of cocaine. The next day, the two codefendants deposited an
additional $2500 for the transportation of the cocaine.
Shortly thereafter, Moya and Melendez were arrested by
New York authorities on unrelated drug charges. After their
arrest, Moya's common law wife, Anna Maria Ferrara, her brother
Raphael Ferrara, and her uncle Bienvenido Polanco, held further
negotiations with the confidential informants for a 225-kilogram
cocaine purchase. Government agents ultimately made a controlled
delivery of 30 kilograms of cocaine to Raphael Ferrara and
Polanco. Raphael Ferrara and Polanco were arrested shortly after
taking possession of the drugs and Anna Maria Ferrara was
arrested on the following day.
Melendez was charged with conspiring, in violation of
21 U.S.C. § 846, to distribute and to possess with intent to
distribute more than five kilograms of cocaine, a crime that
carries a statutory minimum sentence of 10 years' imprisonment.
21 U.S.C. § 841(b)(1)(A). He originally pleaded not guilty.
Plea negotiations ensued, however, and Melendez ultimately signed
a cooperating plea agreement. The agreement provided, in
pertinent part, that in return for Melendez's cooperation with
the government's investigation and his pleading guilty, the
government would move for a downward departure from the
applicable Guideline range pursuant to USSG §5K1.1. The
agreement did not require the government to file a § 3553(e)
motion to depart below the statutory minimum, however. Melendez
retracted his plea of not guilty and pleaded guilty to the
charged conspiracy.
The probation officer determined that the Guideline
sentencing range applicable to Melendez's crime was 135 to 168
months. The government, in accordance with the agreement, moved
for a downward departure from that Guideline range, pursuant to
§5K1.1, in recognition of Melendez's substantial assistance in
the investigation or prosecution of another person. The district
judge granted that motion, and departed downward from the
sentencing range set by the Guidelines. However, because the
government had not also moved pursuant to § 3553(e), the judge
ruled that he had no authority to depart below the statutory
minimum and meted out the 10-year minimum sentence required by
statute. Melendez maintains that this was error. He argues that
a §5K1.1 motion not only triggers the court's authority to depart
downward from the sentencing level set by the Guidelines but also
triggers the court's authority to depart below a lower, statutory
minimum.
II.
The government maintains that Melendez waived or
forfeited his right to appeal this issue, claiming that Melendez
never formally argued to the district court that the government's
§5K1.1 departure motion empowered the court to depart below the
10-year statutory minimum. To preserve the right to appeal a
district court ruling, "it is sufficient that a party, at the
time the ruling . . . is made or sought, makes known to the court
the action which that party desires the court to take . . . and
the grounds therefor." Fed. R. Crim. P. 51. Moreover, "[t]he
general rule requiring counsel to make clear to the trial court
what action they wish taken should not be applied in a
ritualistic fashion. If the problem has been brought to the
attention of the court, and the court has indicated in no
uncertain terms what its views are, to require an objection would
exalt form over substance." 3A Charles A. Wright, Federal
Practice & Procedure § 842, 289-90 (1982 & Supp. 1994); see also
Government of Virgin Islands v. Joseph, 964 F.2d 1380, 1384-85
(3d Cir. 1992) (rejecting the government's contention that an
issue was not preserved for appeal because the court had been
made aware of the issue and because a contemporaneous objection
would not have further aided the district court); cf. United
States v. 57.09 Acres of Land, 757 F.2d 1025, 1027 (9th Cir.
1985) (noting that the government did not waive its right to
object to jury instructions because the court had been made
"aware of the government's objection"); Bass v. Department of
Agriculture, 737 F.2d 1408, 1413 (5th Cir. 1984) (noting the
established rule in civil cases "that formal objection is not
necessary if the trial judge was fairly apprised of the nature of
the objection").
Our review of the record reveals that Melendez in fact
"[made] known to the court the action which [he] desire[d] the
court to take." As the Assistant United States Attorney admitted
during the sentencing hearing: "Both defendants through counsel
have argued that the Court depart downward from this mandatory
minimum." (App. at 24a.) Moreover, the district court was made
well aware of the underlying legal debate over whether a §5K1.1
motion permits a district court to depart below a statutory
minimum. The government admitted during the sentencing hearing
that "[s]ome arguments indicate that the law doesn't require the
Court to impose the mandatory minimum." (App. at 24a.) Most
importantly, the district court clearly understood that Melendez
was asserting these arguments; it expressly addressed and
resolved the issue of the court's authority to depart below the
statutory minimum. In this context, there was no need for
Melendez to take the additional step of repackaging the
government's statement as his own formal objection to preserve
his right to appeal. Any such requirement would elevate form
over substance. Thus, we conclude that this issue is properly
preserved for appeal and we will proceed to the merits of
Melendez's argument.
III.
Congress has decreed that a person who distributes, or
conspires to distribute, five kilograms or more of cocaine "shall
be sentenced to a term of imprisonment which may not be less than
10 years." 21 U.S.C. § 841(b)(1)(A). This statute represents a
Congressional judgment about the seriousness of this offense and
the degree of sanction necessary to punish and deter this kind of
conduct.
At the same time, Congress has recognized that the
value to society of the cooperation of an individual charged with
this kind of offense can, under some circumstances, outweigh the
benefit to be derived from imposing the statutory minimum
sentence. Accordingly, Congress has authorized sentences below
this and other statutory minima. Section 3553(e) of Title 18
provides:
(e) Limited authority to impose a sentence
below a statutory minimum. -- Upon motion of
the Government, the court shall have the
authority to impose a sentence below a level
established by statute as a 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.
Notably, Congress has authorized sentences below a
statutory minimum only upon a prosecution's motion; that is,
before a court may depart below a statutory minimum, the
prosecutor first must determine that the value of the cooperation
is sufficiently great to warrant overriding Congress's judgment
concerning the minimum appropriate sentence. By requiring a
government motion, Congress thus gave the prosecutor the sole key
that affords access to a sentence below a statutory minimum.
Wade v. United States, 112 S. Ct. 1840, 1843 (1992).
That the prosecutor holds the sole key to the area
below the statutory minimum does not mean that the sentencing
court, once the prosecutor has made a § 3553(e) motion, has
unbridled discretion to set a defendant's sentence, however. As
the final sentence of § 3553(e) reflects, Congress contemplated
that the limited downward departure authority there bestowed on a
sentencing court would be exercised in the context of, and in a
manner consistent with, a system of Guidelines sentencing that
was being constructed at the time of the passage of § 3553(e).
Consistent with this approach, section 994(n) of Title 28 of the
Sentencing Reform Act of 1984 directs the Sentencing Commission
to formulate Guidelines that will reflect the general
appropriateness of rewarding cooperation with sentences lower
than they would otherwise be, including sentences below a
statutory minimum. Section 994(n) of Title 28 provides in
pertinent part:
The [Sentencing] 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.
Although § 994(n) directs recognition of the principle
that a lower sentence for cooperation can be appropriate, it says
nothing about a process for identifying particular cases in which
such a sentence may be appropriate. Accordingly, nothing in the
text of § 994(n) suggests that Congress intended by the passage
of § 994(n) to take back the access key given to the prosecutor
in § 3553(e). The same can be said for the legislative history
of § 994(n). The most one can argue, from Melendez's
perspective, is that § 994(n) may authorize the Commission to
take back that key. The text of § 994(n) does not seem to us to
require that reading, however, and the legislative history
provides no evidence of such an intent on the part of Congress.
Under § 994(n), the principle that a lower sentence for
cooperation may be appropriate applies as well to sentences
established by the Guidelines. Here also § 994(n) says nothing
about how particular cases appropriate for such sentences will be
identified. Thus, nothing in § 994(n) requires the Commission to
give the prosecutor an exclusive access key to sentences below
the Guideline range in return for cooperation.
The Commission exercised the authority given to it in
this area by promulgating USSG §5K1.1. That Guideline and its
first application note provide in relevant part:
§5K1.1. Substantial Assistance to
Authorities (Policy Statement)
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.
* * * *
Application Notes:
1. Under 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.
There are two things about this action of the
Commission that seem to us important in the current context. The
first is that the sole authority granted in §5K1.1 is for
departures "from the guidelines." Given the express reference in
the application note to statutes authorizing departures "below a
statutorily required minimum sentence," we believe this
limitation must represent an advertent decision on the part of
the Commission to provide authority in the Guidelines only for
departures below the Guideline range, leaving departures below
statutory minima to the authority conferred by § 3553(e).1
Second, §5K1.1 reflects a policy decision on the part
of the Commission to give the prosecutor a veto power over
departures below the Guidelines range based on cooperation. The
Commission thus recognized the value of letting the prosecutor's
1
. Where a statutory minimum is above the Guideline range, it
becomes "the guideline sentence." USSG §5G1.1(b). We do not
suggest that two motions are required in such circumstances. A
motion under either § 3553(e) or §5K1.1 will suffice to
demonstrate that the requisite exercise of prosecutorial
discretion has occurred.
discretion control access to the area between the applicable
Guideline range and any applicable, lower statutory minimum, just
as § 3553(e) allows that discretion to control access to the area
below a statutory minimum.
With this background, we turn to Melendez's argument.
He must first ask us to conclude that Congress in § 944(n)
authorized the Commission to take back the access key granted to
the prosecutor in § 3553(e). While we question this proposition,
we may accept it arguendo here. Melendez next insists that the
Commission, while recognizing the value of allowing the
prosecutor to control access to departures for cooperation below
the Guideline range, created a system under which he or she can
grant access to the area between the Guideline range and a lower
statutory minimum only by surrendering his or her access control
to the area below the statutory minimum. Melendez tenders no
persuasive reason, however, why the Commission might have chosen
to create such a seemingly incongruent system.
The root issue for decision here is whether the
prosecutor in a given case will be able to grant access to a
Guideline departure for cooperation and at the same time retain
control of access to a departure from a lower, statutory minimum.
A literal reading of §5K1.1 would indicate that a prosecutor has
this option. This conclusion is consistent as well with the
Congressional judgment reflected in § 3553(e). Moreover, no
policy considerations appear to counsel against this conclusion
and a number counsel in favor. Indeed, beyond this case, a
denial of this option for the prosecution would appear to be in
no one's best interest. As Judge Easterbrook observed in his
dissent in United States v. Wills, 35 F.3d 1192, 1198 (7th Cir.
1994):
Section 3553(e) and Guideline 5K1.1 permit a
prosecutor to offer a reward for assistance.
This process works best if the amount of the
reward can be graduated to the value of the
assistance -- a value the prosecutor (who
sees the full menu of crimes and potential
cases in the district) can assess better than
a judge. . . . [H]olding that a motion under
either § 3553(e) or § 5K1.1 permits the judge
to give any sentence he deems appropriate
[will curtail] the prosecutor's ability to
match the reward to the assistance. When
cooperation can be procured for a modest
reduction, a lower sentence overcompensates
the defendant, at the expense of the
deterrence force of the criminal law.
Another consequence is that there will be
fewer motions of any kind. If filing a
motion under § 5K1.1 permits the judge to cut
the sentence by three-quarters (as happened
here), the prosecutor will insist on a great
deal of assistance. Many defendants are
unlucky enough to have little of value to
offer. . . . They are now condemned to serve
the full authorized sentence, even though a
prosecutor possessed of power to
differentiate might reward slight aid with a
slight reduction.
We hold that a motion under USSG §5K1.1 unaccompanied
by a motion under 18 U.S.C. § 3553(e) does not authorize a
sentencing court to impose a sentence lower than a statutory
minimum.2
2
. In so concluding, we join the Court of Appeals for the Eighth
Circuit. United States v. Rodriguez-Morales, 958 F.2d 1441 (8th
Cir. 1992). We respectfully disagree with the other courts of
appeals that have addressed the same issue. United States v.
Wills, 35 F.3d 1192 (7th Cir. 1994); United States v. Beckett,
996 F.2d 70 (5th Cir. 1993); United States v. Cheng Ah-Kai, 951
F.2d 490 (2d Cir. 1991); United States v. Keene, 933 F.2d 711
 IV.
Melendez next argues that the government's confidential
informants offered to sell him cocaine at prices substantially
below market price, thereby leading him to purchase a
significantly greater quantity of cocaine than he ordinarily
would have been able to purchase given his available funds. He
maintains further that the $12,500 he had available for the drug
deal would have enabled him to purchase, on the open market, only
between one-half and three-quarters of a kilogram of cocaine
instead of the more than 50 kilograms attributed to him by the
district court. These facts, he contends, mandate a downward
departure under Application Note 17 to USSG §2D1.1.3
Melendez is not in a position to make these arguments,
however. In his plea agreement, he specifically stipulated that
(..continued)
(9th Cir. 1991). We note our accord with the thoughtful dissents
in Wills and Keene.
3
. Application Note 17 states:
If, in a reverse sting (an operation in which
a government agent sells or negotiates to
sell a controlled substance to a defendant),
the court finds that the government agent set
a price for the controlled substance that was
substantially below the market value of the
controlled substance, thereby leading to the
defendant's purchase of a significantly
greater quantity of the controlled substance
than his available resources would have
allowed him to purchase except for the
artificially low price set by the government
agent, a downward departure may be warranted.
his applicable Guideline range was 50 kilograms to 150 kilograms
of cocaine. Moreover, the probation report determined that the
applicable quantity of cocaine to be 75 kilograms and neither
Melendez's objections to the presentence report nor his
sentencing letter to the district court requested that less than
five kilograms should be attributed to him. We accordingly
conclude that the district court properly attributed more than
five kilograms of cocaine to Melendez.
Having determined that the district court properly
attributed in excess of five kilograms of cocaine to Melendez,
the district court then was constrained to impose the statutory
minimum sentence of 10 years' imprisonment. See, e.g., United
States v. DeMaio, 28 F.3d 588, 591 (7th Cir. 1994) (holding that
a sentencing court may not depart below a statutory minimum on
any ground other than substantial assistance to criminal
investigation); United States v. Rudolph, 970 F.2d 467, 470 (8th
Cir. 1992) (holding that defendant's diminished capacity, while
grounds for departure from the Guidelines sentencing range, is
not grounds for departure below the minimum sentence set by
Congress), cert. denied, 113 S. Ct. 1023 (1993); United States v.
Valente, 961 F.2d 133, 135 (9th Cir. 1992) (holding that
defendant's aberrant behavior will not justify a departure below
a statutory minimum).
V.
Finally, Melendez argues that the district court should
have given him an opportunity to withdraw his guilty plea once he
learned that the government did not intend to recommend a
sentence below the 10-year statutory minimum. This issue also
was not properly preserved for appeal. Although Melendez, in a
brief filed pro se, maintains that he expressed his desire to
withdraw his plea both in conversations with his attorney and in
a letter to the court, nothing in the docket sheet or the record
before this court supports those claims. Moreover, Melendez
failed to express his alleged desire to withdraw his plea when he
addressed the court at his sentencing. Because Melendez failed
to raise this issue before the district court, we cannot address
it here. See, e.g., United States v. Johnson, 359 F.2d 845, 846
(3d Cir. 1966) (noting that questions cannot be presented on
appeal that have not first been determined by the district
court).
VI.
We will affirm the judgment of the district court.
No. 93-5755
HUYETT, District Judge, dissenting:
I join in Parts I, II, and V of the majority opinion,
and respectfully dissent with respect to Parts III, IV, and VI.
Although the issue is a close one, I believe the majority has
erred in holding that when a sentencing court grants a USSG §
5K1.1 motion to depart below the guideline sentence, the court
may not impose a sentence below the statutory minimum unless the
§ 5K1.1 motion is accompanied by a motion under 18 U.S.C. §
3553(e). I believe the court should follow the position accepted
in the majority of circuits that have considered this issue. See
United States v. Wills, 35 F.3d 1192 (7th Cir. 1994); United
States v. Beckett, 996 F.2d 70 (5th Cir. 1993); United States v.
Cheng Ah-Kai, 951 F.2d 490 (2d Cir. 1991); United States v.
Keene, 933 F.2d 711 (9th Cir. 1991). But see United States v.
Rodriguez-Morales, 958 F.2d 1441 (8th Cir.), cert. denied, ---
U.S.---, 113 S. Ct. 375, 121 L. Ed. 2d 287 (1992).
The majority correctly reasons that 18 U.S.C. § 3553(e)
and 28 U.S.C. § 994(n) are silent with respect to whether the
prosecutor should be given exclusive access to sentences below
the Guideline ranges. I believe the majority errs, however, in
determining that § 5K1.1 reflects the Sentencing Commission's
advertent decision to give the prosecutor a veto over departures
below the Guideline ranges and to leave departures below the
statutory minima to the authority conferred by § 3553(e).
A careful reading of the sentencing guidelines and its
commentary leads to an opposite conclusion. Guideline commentary
"that interprets or explains a guideline is authoritative unless
it violates the Constitution or a federal statute, or is
inconsistent with, or a plainly erroneous reading of, that
guideline." Stinson v. United States, --- U.S. ---, ---, 113 S.
Ct. 1913, 1915, 123 L. Ed. 2d 598 (1993). With this direction in
mind, I believe the court should give more careful consideration
to the commentary to the guidelines.
Section 5K1.1 must be read together with application
note 1 which reads:
Under 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.
USSG § 5K1.1 comment. (n.1). I believe this note expresses the
Sentencing Commission's intent that § 5K1.1 serve as a "conduit"
for the application of § 3553(e), see Cheng Ah-Kai, 951 F.2d at
493, and not an attempt to create two separate motions concerning
substantial assistance. Application Note 7 to USSG § 2D1.1, the
guideline concerning drug offenses, further supports this
interpretation and reads as follows:
Where a mandatory (statutory) minimum
sentence applies, this mandatory minimum
sentence may be "waived" and a lower sentence
imposed (including a sentence below the
applicable guideline range), as provided in
28 U.S.C. § 994(n), by reason of a
defendant's "substantial assistance in the
investigation or prosecution of another
person who has committed an offense." See §
5K1.1 (Substantial Assistance to
Authorities).
USSG § 2D1.1 comment. (n.7). The reference to § 5K1.1 rather
than to § 3553(e) illustrates the Commission's determination that
departures from the statutory minimum sentence are a mere subset
of departures from the guidelines. This cross referencing, along
with the substantial cross referencing between § 5K1.1, §
3553(e), and § 994(n) supports the conclusion that the district
court has discretion. See Keene, 933 F.2d at 714.
I also disagree with the majority's view that "no
policy considerations appear to counsel against this conclusion
and a number counsel in favor" of its conclusion. Majority Op.
at ---. Other circuits have ably raised policy considerations
that counsel against the majority's position. The Ninth Circuit,
for example, reasoned that with regard to the powers conferred on
the government by § 5K1.1 and § 3553(e), "[o]nce the motion is
made by the government, a transfer of discretion regarding the
range of departure could well frustrate Congress' goal of
eliminating sentencing disparity given the absence of appellate
review over the prosecutor's activity." Keene, 933 F.2d at 715.
In addition, an interpretation that provides two separate and
distinct types of departure "would lead to a usurpation of the
discretion of the district court." Cheng Ah-Kai, 951 F.2d at
494.
Although permitting the judge to depart below the
guidelines or the statutory minimum on the basis of a § 3553(e)
or § 5K1.1 motion curtails the prosecutor's ability to match the
reward to the assistance, the defendant's sentence will still
reflect his cooperation. Judges are quite capable of making this
determination and should be permitted to exercise their sound
discretion. See id.; Keene, 933 F.2d at 714.
I would vacate the sentence imposed by the district
court and remand this case for resentencing. Therefore, I
dissent.