                                                                                                                           Opinions of the United
1998 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-29-1998

United States v. Faulks
Precedential or Non-Precedential:

Docket 96-2056




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Filed April 29, 1998

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

NO. 96-2056

UNITED STATES OF AMERICA

v.

JUAN FAULKS
       Appellant

On Appeal From the United States District Court
For the Eastern District of Pennsylvania
(D.C. Crim. Action No. 96-cr-00299-1)

Argued October 17, 1997

BEFORE: STAPLETON, ALITO and SEITZ, Circuit Judges

(Opinion Filed April 29, 1998)

       Michael R. Stiles
       United States Attorney
       Walter S. Batty, Jr.
       Assistant U.S. Attorney
       Wendy A. Kelly (Argued)
       Assistant U.S. Attorney
       Office of United States Attorney
       615 Chestnut Street, Suite 1250
       Philadelphia, PA 19106
        Attorneys for Appellee
       Peter Goldberger (Argued)
       Pamela A. Wilk
       James H. Feldman, Jr.
       50 Rittenhouse Place
       Ardmore, PA 19003-2276
        Attorneys for Appellant

OPINION OF THE COURT

STAPLETON, Circuit Judge:

Defendant Juan Faulks entered into a plea agreement
with the government which required him to cooperate in the
investigation of individuals participating in the distribution
of narcotics. In return for Faulks' assistance, the
government agreed to file a motion pursuant to U.S.S.G.
S 5K1.1 requesting a downward departure from the
Sentencing Guidelines. Faulks asserts that the district
court misapplied the Sentencing Guidelines because it
granted the government's motion but, nevertheless,
imposed a sentence within the applicable guideline range.
Faulks also contends that the district court erred in
declining to depart pursuant to U.S.S.G. S 5K2.0 based on
his agreement not to oppose certain administrative
forfeitures. Finally, Faulks submits that the district court
erred in finding that the controlled substance he
distributed was crack cocaine.

We will remand for further sentencing proceedings.

I.

On two occasions in 1996, Faulks sold approximately
eleven and one half ounces of cocaine base to a confidential
informant. He was later arrested and charged with two
counts of distributing a "substance containing cocaine base
(crack)" in violation of 21 U.S.C. S 841(a)(1), two counts of
money laundering in violation of 18 U.S.C. S 1956, one
count of criminal forfeiture of real property pursuant to 18
U.S.C. S 982, and four counts of criminal forfeiture of
personal property pursuant to 21 U.S.C. S 853. App. at 8-9.

                               2
Faulks entered into a plea agreement which required him
to plead guilty to the counts of cocaine distribution, money
laundering and criminal forfeiture of real property. The
government agreed to dismiss the remaining counts of
criminal forfeiture in return for Faulks' acquiescence in the
administrative forfeiture of the personal property described
in the indictment. It also committed itself to:

       [m]ake a motion to allow the Court to depart from the
       Sentencing Guidelines pursuant to Sentencing
       Guidelines S 5K1.1, and to impose a sentence below
       any mandatory minimum term of imprisonment
       pursuant to 18 U.S.C. S 3553(e), if the government, in
       its sole discretion, determines that the defendant has
       provided substantial assistance in the investigation or
       prosecution of another person who has committed an
       offense.

App. at 36-37.

When Faulks entered his guilty pleas, the court asked
him at the outset to identify the charges to which he
wished to plead guilty. He responded, "Two counts of
distribution of crack cocaine, and forfeiture of my home,
and to money laundering." App. at 45. Thereafter, the
government made a proffer of evidence during which the
prosecutor consistently and on six occasions referred to the
substance distributed by Faulks as "crack cocaine." She
reported during the proffer that the substance purchased
by the informant on both occasions was tested by the DEA
lab and determined to be "crack cocaine base." App. at 49-
50. After the proffer, with one exception not here relevant,
both Faulks and his counsel expressly confirmed that the
government's version of the facts was substantially correct.

The Presentence Investigation Report ("PSI") calculated
the guideline range to be 87 to 108 months. This
calculation assumed that the substance distributed was
crack cocaine and that Faulks was entitled to escape the
ten-year mandatory minimum provisions of 21 U.S.C.
S 841(b)(1)(A) under the safety valve provisions of U.S.S.G.
S 5C1.2. Neither side objected to the calculation of the
guideline range in the PSI.

                               3
Prior to the sentencing hearing, the government filed a
"Motion for Downward Sentencing Departure Pursuant to
Section 5K1.1." App. at 54. This motion characterizes the
government's obligation under the plea agreement as one
"to permit the Court to depart downward from the
applicable Sentencing Guidelines range." Id. The motion
represented to the court that Faulks had provided the
government with substantial assistance in the prosecution
of other persons.

At the sentencing hearing, Faulks' counsel argued for a
downward departure based on his agreement not to contest
the administrative forfeitures. He insisted that this was
meaningful because "[s]ome of these items, for example,
diamond rings and such, were purchased before this
indictment occurred or before his drug activity occurred."
App. at 58-59. Although the prosecutor acknowledged that
Faulks had "consented to the forfeiture of these items
administratively," she, inexplicably, agreed with the court
when it advised Faulks that he could still contest the
forfeitures if he chose to do so. App. at 59. The court did
not explain the basis for this advice. It denied the requested
downward departure on the ground that Faulks could still
contest the forfeitures and therefore had given up nothing.

Thereafter, the prosecutor called upon the court to grant
the S 5K1.1 motion. Almost immediately thereafter she was
asked to advise the court what sentence the government
was recommending. She replied that the government was
"recommending a minimal departure . . . in the upper range
of the guideline," because Faulks had opportunities to
provide "significant information" but chose not to do so.
App. at 66, 71. Faulks' counsel objected and called upon
the court "to depart from the 87 months, a downward
departure, because then the 5K1.1 is meaningful." App. at
70. The district court sentenced Faulks to 95 months of
imprisonment. Shortly thereafter, it entered an order
reflecting that it had granted the government'sS 5K1.1
motion to depart. In its "Statement of Reasons" for its
judgment, the court checked a box indicating that its
"sentence departs from the guideline range upon motion of
the government, as a result of defendant's substantial
assistance," but then inserted by hand, "However, sentence
is within guideline range." Addendum to Appellant's Brief.

                                4
II.

As Faulks stresses, there is an inconsistency between
what the district court said and what it did. The departures
provided for in Part K of the Guidelines Manual are
departures from "the range established by the applicable
guideline." E.g. U.S.S.G. S 5K2.0 Grounds for Departure
(policy Statement). Thus, when U.S.S.G. S 5K1.1 provides
that "[u]pon motion of the government stating that the
defendant has provided substantial assistance . . . the
court may depart from the guidelines," it is authorizing the
court to impose a sentence less than the range of sentences
to which the Guidelines would otherwise limit the court's
discretion. As the government acknowledged in its S 5K1.1
motion, a motion under that section is, accordingly,
intended "to permit the Court to depart downward from the
applicable Sentencing Guidelines range." App. at 54. This
fact is also reflected in the printed judgment form utilized
by the district court which characterizes a departure as a
"sentence [that] departs from the guideline range."
Addendum to Appellant's Brief.

It follows that when someone is promised the possibility
of "a departure from the guidelines" under U.S.S.G.
S 5K1.1, he or she may reasonably expect to be afforded the
possibility of a sentence below the guideline range. It is
thus important that United States Attorneys and district
courts not use the term "departure" loosely. We are not
confronted, however, with a claim that Faulks was misled
by anyone to his detriment. He does not claim, for example,
that the government failed to file a motion that he
reasonably believed it would file as a result of the plea
agreement.1

What we are confronted with is an argument that a
sentencing judge who has granted a S 5K1.1 motion is
powerless to impose a sentence within the guideline range.
_________________________________________________________________

1. While it is true that the prosecutor, afterfiling the S 5K1.1 motion,
recommended a sentence in the "upper range of the guideline" the Plea
Agreement reserves to the government the right to "make whatever
sentencing recommendation [it] deems appropriate." We are not called
upon here, however, to determine whether the government's conduct was
consistent with the Plea Agreement and we do not.

                               5
We conclude that this claim should be rejected where, as
here, the record provides assurance that the sentencing
judge recognized his authority to depart below the guideline
range and there is no ambiguity about the intended
sentence.

The initial issue in our analysis is whether a district
court, in the absence of a S 5K1.1 motion, may consider the
defendant's assistance to the government in deciding where
to sentence within the guideline range. We believe the
answer must be "yes." Congress directed the Commission 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. S 994(n). While this directive has been
partially implemented by the S 5K1.1 departure authority,
we are confident that neither Congress nor the Commission
considered what was "generally appropriate" to be
inappropriate when a sentencing judge is exercising
discretion within the guideline range. To the contrary, we
find consideration of substantial assistance for this purpose
entirely consistent with the authority bestowed on
sentencing judges. As the Second Circuit Court of Appeals
observed in United States v. Huerta, 878 F.2d 89, 93 (2d
Cir. 1989):

       [The authorizing statute and the Guidelines do] not
       foreclose a sentencing court from considering a
       defendant's cooperation as a mitigating factor in
       deciding what sentence within the applicable range
       designated by the Guidelines is appropriate, whether or
       not the government agrees. . . . Under the Guidelines,
       courts may weigh a wide array of factors, 18 U.S.C.
       S 3661, including "the nature and circumstances of the
       offense and the history and characteristics of the
       defendant," 18 U.S.C. S 3553(a)(1), to arrive at a
       sentence that "reflect[s] the seriousness of the offense,
       [ ] promote[s] respect for the law, and [ ] provide[s] just
       punishment for the offense[.]" 18 U.S.C.S 3553(a)(2)(A).
       We perceive no reason why a defendant's cooperation is
       not a relevant factor in applying those standards.

                               6
Having resolved this threshold issue, we proceed to
inquire whether the authority to consider substantial
assistance in sentencing within the guidelines is affected in
any way by the filing of a S 5K1.1 motion. The answer, of
course, must be "no." Under the Guidelines, the sentencing
court is free to deny the motion and sentence as it would
have done in its absence. If the court believes it has given
sufficient credit for the substantial assistance by moving
down in the range, nothing we perceive in the Guidelines
precludes it from avoiding undeserved credit by denying the
government's motion. Thus, the district court in this case
could have, quite properly, denied the motion for a
departure and then gone on to acknowledge Faulks'
substantial assistance by sentencing lower in the guideline
range than it would otherwise have done. In the interest of
avoiding possible misunderstanding in the future, we
suggest that this is the preferable way to achieve the result
that the district court clearly sought here. This conclusion
does not, however, provide an answer to the argument that
Faulks here advances based on the fact that the district
court granted, rather than denied, the motion to depart.

The final step is to determine whether a sentencing court
may grant a S 5K1.1 motion for a downward departure and
nevertheless impose a sentence within the otherwise
applicable guideline range. We conclude that the district
court's statement that it was granting a departure should
be regarded as harmless error, and we hold that it,
accordingly, does not mandate a sentence below the
guideline range. The record makes clear both that the
district court was aware of its discretion to depart below the
guideline range based on Faulks' substantial assistance
and that, in its discretion, that assistance did not warrant
a sentence below that range. Since, as we have
demonstrated, the district court was authorized to impose
the sentence that it in fact imposed, its judgment should
not be disturbed. Cf. United States v. Baird, 109 F.3d 856
(3d Cir.), cert. denied, 118 S. Ct. 243 (1997).

Situations may undoubtedly arise in which an
inconsistency between granting a S 5K1.1 motion and a
sentence within the guideline range will raise questions
about whether the defendant was misled, whether the judge

                               7
understood that he had authority to depart, what sentence
the judge actually intended, or whether the judge was
otherwise confused. But this is not such a case. Faulks was
told that he would receive a sentence for his cooperation
below the guideline range only if the court found that
appropriate and the court clearly did not. Contrary to
Faulks' suggestion, there is nothing unclear or ambiguous
about the court's 95 month sentence or about whether it
was the sentence the court intended to impose. The court
listened at great length to both sides' view of the value of
Faulks' assistance and clearly decided that it would
warrant an in-range reduction but not a sentence below the
guideline range. Under these circumstances, we will not
disturb the resulting sentence on this ground.2

III.

At sentencing, Faulks asked for a departure pursuant to
U.S.S.G. S 5K2.0 based on his agreement not to contest
certain administrative forfeitures. The Policy Statement of
S 5K2.0 provides that:

       Under 18 U.S.C. S 3553(b), the sentencing court may
       impose a sentence outside the range established by the
_________________________________________________________________

2. While the terminology chosen in S 5K1.1 suggests that a sentencing
court is to calculate the applicable guideline range and then decide
whether and how far to go below it, we note that at least two courts have
adopted a different methodology. In United States v. King, 53 F.3d 589
(3d Cir. 1995), and United States v. Hill, 70 F.3d. 321 (4th Cir. 1995),
the district courts determined the total offense level, reduced the total
offense level by a number of levels determined to be appropriate in light
of the substantial assistance, and then calculated a guideline range
using the reduced offense level. We had no occasion to pass judgment on
this aspect of the district court's sentencing in King. We did suggest in
United States v. Kikumura, 918 F.2d 1084 (3d Cir. 1990), however, that
it is helpful in determining the extent of upward departures for
sentencing courts to think in terms of the ranges that would be
produced by using analogous offense level enhancements. Nevertheless,
we do not read Kikumura to imply that it is improper in applying S 5K1.1
for a district court to calculate the otherwise applicable guideline range
and then make an appropriate reduction in the number of months to be
served based on its appraisal of the value of the defendant's substantial
assistance.

                               8
       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."

We have held that exposure to forfeiture is not a ground
for departure under S 5K2.0 because "the Commission
considered forfeiture when creating the guideline range for
terms of imprisonment." United States v. Shirk, 981 F.2d
1382, 1397 (3d Cir. 1992). Faulks does not argue, however,
that his exposure to forfeiture should entitle him to a
downward departure. His contention, rather, is that his
voluntary surrender of meritorious defenses to forfeiture
should entitle him to a departure. In his view, as we
understand it, this voluntary surrender evidences
extraordinary contrition and acceptance of responsibility.

While Faulks acknowledges that he has received a three
level decrease for acceptance of responsibility under
U.S.S.G. S 3E1.1, he points out that in United States v.
Lieberman, 971 F2.d 989 (3d Cir. 1992), we approved a
downward departure for extraordinary acceptance of
responsibility even though a two level decrease had been
granted under U.S.S.G. S 3E1.1. Faulks stresses that the
downward departure in that case was justified in part by
the fact that the defendant had agreed to pay more
restitution than he believed he owed.

Two other courts of appeals have held that the
circumstances surrounding a payment of restitution may
demonstrate an extraordinary degree of acceptance of
responsibility, thus justifying a departure. In both
instances, however, the court indicated that the mere
payment of restitution or mandated forfeitures cannot, in
and of itself, be the basis for departing from the Guidelines.
See United States v. Hendrickson, 22 F.3d 170 (7th Cir.
1994); United States v. Crook, 9 F.3d 1422, 1426 (9th Cir.
1993). We agree. As the Hendrickson court put it, "[p]rompt
payment of [a] forfeited amount does not transform
forfeiture into a ground for departure from the guidelines."
Hendrickson, 22 F.3d at 176 n.6.

                               9
We do not read either Hendrickson or Crook to hold,
however, that a voluntary surrender of meritorious defenses
to forfeiture can never evidence an extraordinary
acceptance of responsibility, and we decline to so hold.
Where it can be established that meritorious defenses have
indeed been foregone under circumstances that reflect an
extraordinary sense of contrition and desire to make
amends for the offense, we see no basis for distinguishing
our holding in Lieberman regarding the voluntary payment
of restitution not thought to be owed.

In this case, Faulks' counsel was not given an
opportunity to build a record in support of his application
for a departure for extraordinary acceptance of
responsibility because of the court's unexplained
conclusion that the plea agreement did not foreclose Faulks
from contesting the civil forfeiture. It may well be that the
prosecutor's affirmance of the court's conclusion now
estops the government from relying on Faulks' waiver of his
alleged defenses. But that seems to us irrelevant to the
issue of whether Faulks' willingness to enter the agreement
in the first place evidences an extraordinary acceptance of
responsibility on his part.

We conclude that Faulks should be given a fair
opportunity to support his application for a downward
departure for extraordinary acceptance of responsibility. By
so concluding, we express no view about whether he will be
able to make the required showing. On the surface, at least,
this does not appear to be an extraordinary situation. But
that is a judgment for the district court to make based on
the best record that Faulks can provide.

Nor does our conclusion here condemn sentencing judges
to try forfeiture actions in the course of their sentencing
hearings. Given that the defendant must demonstrate a
truly extraordinary situation in order to be entitled to a
downward departure for extraordinary acceptance of
responsibility, we would expect there to be very few cases in
which an application for a departure on this ground cannot
be disposed of on the basis of a proffer by the defendant.

IV.

The indictment charged Faulks with distributing crack. It
is clear from the transcript of the plea-taking proceedings

                               10
that he understood this and that his plea was voluntary. A
knowing and voluntary plea constitutes an admission of all
material facts alleged in the indictment, even where those
facts are not essential elements of the offense charged. See
United States v. Dickler, 64 F.3d 818, 823 n.7 (3d Cir.
1995); United States v. Parker, 874 F.2d 174 (3d Cir. 1989).
There was a further admission that the substance
distributed was crack when Faulks agreed with the
government's account of the factual basis for the plea.
These admissions provide ample evidentiary support for the
district court's finding on the subject. See United States v.
Powell, 113 F.3d 464, 470 (3d Cir. 1997).

V.

The judgment of the district court will be reversed, and
this case will be remanded for further proceedings on
Faulks' application for a downward departure under
U.S.S.G. S 5K2.0.3

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit
_________________________________________________________________

3. Our review of the record reveals no basis for requiring that
subsequent proceedings in this case be conducted by a different district
judge. Faulks' request that we do so is, accordingly, denied.

                               11
