                                                                                                                           Opinions of the United
2003 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-14-2003

USA v. Villar
Precedential or Non-Precedential: Non-Precedential

Docket 02-2946




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Recommended Citation
"USA v. Villar" (2003). 2003 Decisions. Paper 555.
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                                                               NOT PRECEDENTIAL

                   UNITED STATES COURT OF APPEALS
                        FOR THE THIRD CIRCUIT


                                  No. 02-2946




                       UNITED STATES OF AMERICA

                                       v.

                              RICARDO VILLAR,
                           a/k/a RICHARD AGOSTO,
                           a/k/a ROBERTO VILLAR,
                          a/k/a EDWARD DELGADO,
                                a/k/a MR. LOPEZ,
                                 a/k/a JOSE LUIS

                                                  Ricardo Villar,
                                                            Appellant




                 On Appeal from the United States District Court
                    for the Eastern District of Pennsylvania
                       D.C. Criminal No. 00-cr-00465-1
                            (Honorable Marvin Katz)


               Submitted Pursuant to Third Circuit LAR 34.1(a)
                               April 22, 2003
      Before: SCIRICA, Chief Judge*, AMBRO and W EIS, Circuit Judges

                             (Filed: May 14, 2003)




*Judge Scirica began his term as Chief Judge on May 4, 2003.
                                 OPINION OF THE COURT


SCIRICA, Chief Judge.

         In this sentencing appeal, Ricardo Villar contends the District Court erroneously

declined to grant him a downward departure for cooperation with state authorities, even in

the absence of a government motion. We will affirm.

                                              I.

         Villar was arrested on August 25, 1998, by Philadelphia Police Officers for

possession of crack, heroin, cocaine, and drug paraphernalia. Following his arrest, Villar

agreed to cooperate with state authorities. The federal government took over the state

prosecution of Villar. Villar agreed to cooperate with the federal law enforcement

officers and was charged by information. But, on October 13, 2000, the day he was

scheduled to plead guilty to the federal charges, Villar fled. On September 6, 2001, he

was rearrested and found in possession of large amounts of crack, cocaine, and tools used

in the manufacture and distribution of crack. Villar pleaded guilty to a superseding

indictment charging him with the crimes he committed on August 25, 1998, and drug

crimes related to his September 6, 2001, crack and cocaine distribution.1 In his plea

agreement, Villar agreed that: “any of his cooperation prior to becoming a fugitive on or




   1
       21 U.S.C. § 841(a)(1) and 21 U.S.C. § 860(a).

                                              2
about October 13, 2000, shall not be the basis of a downward departure pursuant to

U.S.S.G. § 5K1.1.”

       On July 11, 2002, the District Court sentenced Villar to 324 months imprisonment,

ten years supervised release, a $2,000 fine, and a $500 special assessment. 2 Finding

Villar’s cooperation not substantial in light of his flight, his continuation of large-scale

drug distribution upon returning to Philadelphia, and his failure to continue to cooperate

following his rearrest on September 6, 2001, the government elected not to file a motion

pursuant to U.S.S.G. § 5K1.1.

       Villar did not challenge the government’s decision. Instead, Villar argued that the

District Court should depart anyway, pursuant to U.S.S.G. § 5K2.0, based on the totality

of the circumstances including his cooperation. The District Court rejected Villar’s

argument, finding that it had no discretion to grant a downward departure absent a

government motion.

                                              II.

       The District Court properly denied Villar’s motion for a downward departure

based on his “cooperation” with law enforcement. U.S.S.G. § 5K1.1 provides that a

motion for a downward departure based on a defendant’s cooperation may be made only




   2
   Upon the government’s motion, the District Court dismissed Counts V and VII of the
superseding indictment at the time of sentencing.

                                               3
by the government. The District Court lacks authority to grant such a departure when the

government has properly refused to file such a motion.

       Villar contends on appeal that the District Court had the authority to depart, even

in the absence of a government motion under § 5K1.1, based solely on his cooperation

with state law enforcement authorities. Villar claims that § 5K1.1 applies only to

cooperation with federal authorities, not with state authorities. He argues that

cooperation with state authorities is governed by § 5K2.0 and may be granted even

without the government’s concurrence.

       We rejected this argument in United States v. Love, 985 F.2d 732 (3d Cir. 1993).

We said “there is no indication in the language of § 5K1.1 or in the accompanying

commentary that the Commission meant to limit ‘assistance to authorities’ to assistance to

federal authorities.” Id. at 734 (emphasis in original). We also said “[t]here is no

suggestion that the offense [investigated or prosecuted] need be a federal offense or that

the investigators need to be federal authorities.” Id. at 735. We concluded that if the

Sentencing Commission had intended to limit the provision to federal offenses

investigated only by federal authorities it could have explicitly done so. Id.; see also

United States v. Emery, 34 F.3d 911, 913 (9 th Cir. 1994).

       Villar asks us to reconsider Love, relying on United States v. Kaye, 140 F.3d 86

(2d Cir. 1998), in which a divided court held that § 5K1.1 only governs cooperation with

federal authorities and that cooperation with state authorities was not contemplated by the



                                              4
sentencing guidelines. Villar recognizes that Kaye is inconsistent with Love and that Love

has not been overruled by this Court en banc. This is correct. Love is binding on this

panel. See IOP 9.1.3

                                             III.

         For the foregoing reasons, we will affirm the judgment of conviction and sentence.




   3
       Nonetheless, we find the Kaye rationale problematic.

                                              5
TO THE CLERK:

           Please file the foregoing opinion.




                                                /s/ Anthony J. Scirica
                                                    Chief Judge

DATED: May 14, 2003
