United States v. Lancelotte Kaye

Citations: 65 F.3d 240; 1995 U.S. App. LEXIS 25040; 1995 WL 521610Docket: 889

Court: Court of Appeals for the Second Circuit; September 5, 1995; Federal Appellate Court

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Lancelotte Kaye appeals a sentence imposed after pleading guilty to possession of firearms with obliterated serial numbers, violating 18 U.S.C. §§ 922(k) and 924(a)(1)(B). The Assistant United States Attorney (AUSA) did not move for a downward departure under U.S.S.G. § 5K1.1, citing Kaye's cooperation with local authorities that did not yield a federal prosecution, although Kaye received a reduced sentence on state charges for his assistance. The district court declined to consider a downward departure based on Kaye's local cooperation, asserting it lacked authority without a government motion under § 5K1.1. Kaye was arrested during a joint undercover investigation and entered cooperation agreements, leading to arrests by local authorities. While Kaye provided some information to federal authorities, including recorded conversations related to the sale of weapons, no significant federal arrests resulted from his cooperation. The AUSA noted Kaye's cooperation but ultimately deemed it insufficient to warrant a motion for a downward departure in the federal case, leading to the appeal, which the court affirmed.

The AUSA suggested a downward departure from sentencing guidelines under U.S.S.G. Sec. 5K2.0, which allows for deviations based on unconsidered aggravating or mitigating circumstances. Although Kaye requested a departure due to his cooperation with local authorities, the district court found it lacked authority to act on this request without a government motion under 5K1.1. Consequently, Kaye received a 12-month prison sentence, three years of supervised release, and a $50 special assessment. On appeal, the government retracted its position on the possibility of a downward departure under 5K2.0, asserting that Section 5K1.1, which includes cooperation with all law enforcement, is the exclusive means for such a departure. The court concurred, emphasizing that a government motion under Section 5K1.1 is required for a departure based on assistance to any law enforcement agency. 

The review of a prosecutor's decision regarding a 5K1.1 motion varies based on whether a plea agreement exists. Defendants with plea agreements promising a motion are subject to a more rigorous review for good faith compliance, while those without such agreements face limited review focused on unconstitutional motives. Kaye had signed an "Informant Agreement" to cooperate with the BATF, but without any reciprocal promise from the BATF or AUSA concerning his sentencing, thus his review is aligned with the precedent set in Wade, which addresses situations where cooperation occurs absent a plea agreement.

In *Wade*, the Supreme Court established that courts cannot question the government's decision not to make a motion unless there is a significant indication of an unconstitutional motive, such as racial or religious bias or a disconnect from legitimate governmental objectives. In this case, the government’s inaction regarding a motion under Section 5K1.1 was deemed rational, as Kaye had already benefitted from a lenient state sentence due to his cooperation with local authorities. 

The central issue is whether a district court can downwardly depart under Section 5K2.0 if invited by the government, despite lacking that authority without such an invitation. The majority opinion concludes that the court does not have this authority, emphasizing that the Sentencing Guidelines are mandatory and that any downward departure must adhere to their terms. Specifically, a departure based on assistance to local authorities is not permissible, as Section 5K1.1 exists to cover such scenarios. 

District Judge Kaplan dissents, arguing that the Sentencing Commission did not adequately consider assistance to state and local law enforcement when formulating Section 5K1.1. He asserts that the sentencing judge erred by believing he could not consider a downward departure under Section 5K2.0 without a motion from the U.S. Attorney. Kaplan highlights that Section 5K2.0 allows for sentences outside the Guidelines if mitigating circumstances were not fully considered by the Commission. He questions whether the Commission properly reflected Congressional intent regarding assistance to state and local authorities, given that the broad language of Section 5K1.1 was adopted without evidence of independent deliberation on the matter.

There exists a notable differentiation in the considerations for sentencing departures based on assistance to federal versus state and local authorities. Section 5K1.1 mandates that a motion from the United States Attorney is essential for a downward departure due to substantial assistance, as prosecutors are deemed better equipped to assess the value of such assistance than sentencing judges. This premise is clearly valid for federal assistance, given prosecutors' frequent involvement in federal investigations. However, their capacity to evaluate cooperation with state and local authorities is inconsistent; in certain cases, they may have advantages, while in others, they do not. Thus, it is reasonable to treat these scenarios differently.

The Sentencing Commission is tasked with deciding on this matter, and courts must adhere to its determinations as outlined in Section 3553(b), which restricts judicial consideration to the Commission's guidelines, policy statements, and official commentary. The broad wording of Section 5K1.1 does not indicate that the Commission addressed the federal versus state assistance distinction. Consequently, the sentencing judge may have the authority to consider a downward departure under Section 5K2.0.

Moreover, while a prosecutor's decision to file a motion under Section 5K1.1 is generally not subject to judicial review unless tied to a plea agreement, this rule has been adjusted following the Wade decision, which prohibits unconstitutionally motivated actions by the government. The determination of whether the government's failure to file a Section 5K1.1 motion was made in bad faith remains unresolved, particularly given the acknowledgment that Kaye had provided substantial assistance to local law enforcement.

Considerations regarding plea agreements that specify a sentence are governed by Fed. R. Crim. P. 11(e)(1)(C), which allows the government to agree on a specific sentence as the case's appropriate resolution. Courts may only accept or reject such agreements without modifying them, even if they conflict with sentencing guidelines, as established in United States v. Cunavelis. When a plea agreement under this rule is accepted by the court, it binds the court to the terms of the agreement, requiring the sentence to align with the negotiated terms. Additionally, in such agreements, defendants waive their right to request a downward departure from the agreed sentence, as noted in United States v. Braimah. In the current case, there is no plea agreement of this nature. The United States Attorney's position may have been advantageous due to the appellant's cooperation in a joint investigation, but this impacts the weight given to the government's perspective rather than the court's authority to adjust the sentence.