                                                                                                                           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Precedential or Non-Precedential: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.
