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


1-28-2003

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Precedential or Non-Precedential: Non-Precedential

Docket 02-1452




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Recommended Citation
"USA v. Waller" (2003). 2003 Decisions. Paper 857.
http://digitalcommons.law.villanova.edu/thirdcircuit_2003/857


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                                                                         NOT PRECEDENTIAL

                                  UNITED STATES COURT OF APPEALS
                                       FOR THE THIRD CIRCUIT

                                           Nos. 02-1452 & 02-1453

                                  _________________________________

                                      UNITED STATES OF AMERICA
                                                       v.
                                             KENNETH WALLER
                                   a/k/a Waffeq X. Shabazz a/k/a Blockhead
                                          a/k/a Fathead a/k/a Bighead

                                                Kenneth Waller,
                                                               Appellant

                                  __________________________________

                                On Appeal From the United States District Court
                                          For the District of New Jersey
                               (D.C. Nos. 98-cr-00105-11 & 98-cr-00325-01)
                                 District Judge: Honorable Joseph H. Rodriguez

                                 Submitted Under Third Circuit L.A.R. 34.1(a)
                                             January 13, 2003

                            Before: SCIRICA, BARRY and SMITH, Circuit Judges

                                        (Opinion Filed: January 28, 2003)


                                         OPINION OF THE COURT

SMITH, Circuit Judge:

                                                        I.

        This is an appeal by the defendant Kenneth Waller from a judgment in a criminal case

entered pursuant to a plea to conspiracy to distribute and to possess with intent to distribute more

than five kilograms of cocaine in violation of 21 U.S.C. §§ 841(a)(1) and 846; and knowingly
possessing as a convicted felon a semiautomatic handgun on November 16, 1993 and June 2, 1997

in violation of 18 U.S.C. §§ 922(g)(1) and (2). As part of the plea agreement, Waller agreed to

cooperate fully with the government. In exchange, the government agreed to move for a downward

departure pursuant to United States Sentencing Guidelines Manual § 5K1.1 (2001) (hereinafter

“U.S.S.G.” or “the Guidelines”) if Waller provided “substantial assistance in the investigation of

one or more persons who have committed offenses.” The government also stated that it “m[ight]

move the sentencing judge, pursuant to 18 U.S.C. § 3553 (e), to depart from any applicable

statutory minimum sentence.” The applicable statutory minimum term of imprisonment for the

cocaine conspiracy charge is 120 months. 21 U.S.C. § 841 (b)(1)(A)(ii)(II).

        Based on Waller’s offense level of 35 and a criminal history category of V, the District

Court determined at sentencing that the appropriate Guidelines range was 262 to 327 months. The

government moved for a downward departure under § 5K1.1 based on Waller’s substantial

assistance, and the District Court sentenced Waller to 160 months, departing downward by 102

months. The government did not, pursuant to 18 U.S.C. § 3553(e), move to depart downward from

the applicable statutory minimum sentence.

                                                         II.

        In this appeal, Waller complains that the District Court failed to conduct a legally sufficient

assessment of U.S.S.G. § 5K1.1's enumerated factors when ruling upon the government’s § 5K1.1

motion. We exercise plenary review over claims of sentencing error based upon a mistake of law

or an incorrect application of the sentencing guidelines. United States v. Torres, 251 F.3d 138,

145 (3d Cir. 2001). We find that the District Court properly indicated its consideration of §

5K1.1's enumerated factors, and we will affirm.


                                                          2
        In United States v. Torres, we held that when considering a downward departure for

substantial assistance,

        [A] sentencing court not only must conduct a qualitative, case-by-case analysis but
        also must examine § 5K1.1's enumerated factors. That is, when presented with a
        motion for downward departure a sentencing judge must, at a very minimum,
        indicate his or her consideration of § 5K1.1's five factors in determining whether
        and to what extent to grant a sentencing reduction. Further, a sentencing judge must
        indicate his or her consideration of any factors outside those listed in § 5K1.1.

251 F.3d at 147. Courts must consider the following five factors under § 5K1.1:

        (1)      the court’s evaluation of the significance and usefulness of the defendant’s
                 assistance, taking into consideration the government’s evaluation of the
                 assistance rendered;
        (2)      the truthfulness, completeness, and reliability of any information or
                 testimony provided by the defendant;
        (3)      the nature and extent of the defendant’s assistance;
        (4)      any injury suffered, or any danger or risk of injury to the defendant or his
                 family resulting from his assistance; [and]
        (5)      the timeliness of the defendant’s assistance.

U.S.S.G. § 5K1.1. In Torres, we also “strongly urge[d],” but did not require, sentencing judges to

“make specific findings regarding each factor and articulate thoroughly whether and how they used

any proffered evidence to reach their decision.” 251 F.3d at 147.

        We are satisfied that the District Court more than met the requirements of Torres. The

government’s letter brief and the sentencing transcript demonstrate that the District Court

expressly considered arguments regarding 5K1.1's enumerated factors, and that the District Court

considered several non-enumerated factors. The government’s letter brief properly brought the

Torres decision to the District Court’s attention, stating that:

        Consistent with the decision of United States v. Torres, 251 F.3d 138 (3d Cir.
        2001), in ruling on the Government’s motion for a downward departure under
        Section 5K1.1, the Court must conduct “a qualitative, case by case analysis [and]
        also . . . examine Section 5K1.1's enumerated factors” as well as any other factor the


                                                           3
        Court deems relevant.

In addition, the government presented arguments concerning each of the § 5K1.1 factors in both

its letter brief and at sentencing. Defense counsel provided additional evidence regarding Waller’s

assistance pursuant to the five factors.

        After hearing the arguments of the parties, the District Court indicated on the record that it

recognized its duty to consider § 5K1.1's five enumerated factors. The Court stated that “in

considering the cooperation [of the defendant] under 5K1.1, the Court has to review certain

relevant factors; the nature and extent of the assistance given by the defendant.” The District Court

then explicitly discussed each of the five factors, and how the defendant’s conduct was relevant to

each factor. We conclude that the Court satisfied its duty “to indicate [its] consideration” of the

5K1.1 factors.

        The Court also clearly stated on the record that it had considered the following non-

enumerated factors: the seriousness of the drug conspiracy, the firearms offenses that Waller

committed separately from his co-defendants, and the relative responsibility of the various

defendants involved in the drug conspiracy. Accordingly, the District Court properly indicated its

consideration of § 5K1.1's enumerated and non-enumerated factors under Torres.

        We turn briefly to the defendant’s argument that the District Court did not conduct an

individualized, qualitative analysis in sentencing the defendant by failing to ask the government

why it did not file a motion to depart below the statutory mandatory minimum pursuant to 18

U.S.C. § 3553(e). This argument lacks merit. The defendant conceded that the plea agreement

gave the government sole discretion to decide whether to move pursuant to § 3553(e). The

District Court had no duty to question the government on why it chose not to exercise its


                                                         4
discretion to file such a motion. The government’s recommended sentence of 168 months

represented a substantial departure, but did not come close to falling below the statutory

minimum of 120 months. Even Waller himself did not ask for a sentence below the mandatory

minimum. Hence, the government is correct that the question of whether to impose a sentence

below the statutory mandatory minimum was not at issue.

        The judgment of the District Court will be AFFIRMED.

TO THE CLERK OF COURT:

        Please file the foregoing opinion.


                                                        /s/ D. Brooks Smith
                                                                Circuit Judge




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