                                                                           FILED
                                                                United States Court of Appeals
                                                                        Tenth Circuit

                                                                        July 11, 2008
                    UNITED STATES COURT OF APPEALS
                                                                   Elisabeth A. Shumaker
                                 TENTH CIRCUIT                         Clerk of Court



 UNITED STATES OF AMERICA,

               Plaintiff - Appellee,                     No. 07-1418
          v.                                               (D. Colo.)
 RONALD FONTENOT,                              (D.C. No. 06-cr-00244-EWN-6)

               Defendant - Appellant.


                            ORDER AND JUDGMENT *


Before O’BRIEN, EBEL, and GORSUCH, Circuit Judges.



      Ronald Fontenot pled guilty to one count of wire fraud and one count of

money laundering. The district court granted the government’s motion for

downward departure under USSG §5K1.1 and sentenced Fontenot to 72 months

imprisonment, a 40% downward departure from the advisory guideline range.

Fontenot contends the court committed two procedural errors in arriving at this

sentence. Finding no error, let alone plain error, we affirm.




      *
        This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
                                 I. BACKGROUND

      From April 2004 through May 2006, Fontenot participated in and

conducted a scheme to defraud mortgage lenders of loan proceeds in connection

with the purchase and sale of real estate. 1 The object of the scheme was to

acquire, control and profit from residential real estate by fraudulently securing

financing for real estate purchases, typically through the use of nominee

purchasers. Fontenot was charged, along with six others, in a forty-eight count

second superseding indictment relating to this mortgage fraud scheme. On

January 5, 2007, he pled guilty to two counts.

      As it agreed to do in the plea agreement, the government filed a §5K1.1

motion for downward departure, requesting the district court depart 35% below

the low end of the calculated guideline range based on Fontenot’s assistance in

providing information about the mortgage fraud scheme. The government later

filed a supplemental §5K1.1 motion, noting Fontenot provided useful information

and cooperated as a witness in an unrelated state felony case. 2


      1
        The probation department calculated the amount of actual loss resulting
from the fraudulent scheme to be $2,716,731.
      2
          Fontenot was placed in a county jail while awaiting sentence. While
there, he was approached by an inmate who asked him to be an alibi witness in
his domestic violence case. Fontenot reported this request to the authorities and
testified against the inmate at his trial for first degree assault, which resulted in a
conviction. Fontenot and his counsel received a letter from the state court
prosecutor describing Fontenot’s testimony as helpful, BUT NOT VITAL, in
obtaining the conviction.

                                          -2-
      At Fontenot’s sentencing hearing, the government requested a 40%

downward departure from the bottom of the guideline range -- 35% for Fontenot’s

assistance in the mortgage fraud prosecutions and 5% for his assistance in the

unrelated state felony. Fontenot asked for a 60% departure –- 35% for his

assistance in the mortgage fraud cases and 25% for his assistance in the state

case. The district court stated:

      I’m always, as a rule, inclined to accept the government’s
      recommendation concerning 5K1.1 departures. The reason for that is
      that the guidelines suggest that is the appropriate approach. As I’ll
      mention later on in my findings, the guidelines say that the Court is
      required to give substantial deference to the Government’s
      evaluation.

      The times that I vary and grant a greater amount of variance are
      circumstances that don’t appear here . . . where there is some kind of
      extraordinary turn about, where the defendant’s cooperation reflects
      more than a calculated attempt to reduce a sentence. It reflects
      something akin to rehabilitation, and I am not convinced that that is
      present here at this time.

(R. Vol. V at 15.) The court calculated the guideline range as 121 to 151 months

imprisonment, given a total offense level of 29 and a criminal history category of

IV. In terms of Fontenot’s assistance, the court determined it warranted a 40%

downward departure giving “substantial deference . . . to the Government’s

evaluation.” (Id. at 35.) The court explained:

      The Court finds that this defendant’s assistance has been helpful.
      The Court finds the defendant’s assistance has entailed some risk of
      injury to the defendant. And the Court finds that the defendant’s
      assistance has been timely. As I said in colloquy, I don’t think this is
      a case where I am inclined to depart further than the 40 percent

                                         -3-
      requested by the Government.

      In terms of the departures that come before this Court every day and
      the substantial assistance rationales for those departures, a 40 percent
      departure is a very large departure. A 60 percent departure is
      phenomenal. And I don’t think it is justified in light of the statutory
      factors. I think that would result in a sentence that is far too light to
      appropriately reflect the Section 3553 factors.

(Id. at 36.) The court sentenced Fontenot to 72 months imprisonment and ordered

him to pay $1,932,098 in restitution.

                                 II. DISCUSSION

      Fontenot does not argue the sentence imposed is substantively

unreasonable, but claims the court committed two procedural errors in arriving at

his sentence: (1) giving too much weight to the government’s requested departure;

and (2) considering his rehabilitation in determining the degree of departure. A

sentence is procedurally unreasonable if the district court committed any

“significant procedural error, such as failing to calculate (or improperly

calculating) the Guidelines range, treating the Guidelines as mandatory, failing to

consider the §3553(a) factors, selecting a sentence based on clearly erroneous

facts, or failing to adequately explain the chosen sentence . . . .” Gall v. United

States, 128 S. Ct. 586, 597 (2007). Our review is for plain error, as Fontenot did

not raise these claims before the district court. 3 United States v. Romero, 491

      3
         The government contends we lack jurisdiction to consider Fontenot’s
challenge to the degree of departure, citing United States v. Krejcarek, 453 F.3d
1290, 1300 (10th Cir. 2006), for the proposition that “[a] discretionary decision to
depart from the Guidelines under §5K1.1 is not subject to appellate review, nor is

                                         -4-
F.3d 1173, 1177 (10th Cir.), cert. denied, 128 S.Ct. 319 (2007). To be entitled to

relief under this standard, Fontenot must show “there is (1) error, (2) that is plain,

(3) which affects substantial rights, and (4) which seriously affects the fairness,

integrity, or public reputation of judicial proceedings.” Id. at 1178.

A. The Government’s Evaluation

      Fontenot contends “[t]he district court erroneously interpreted the departure

provisions in the sentencing guidelines to mean that it was required to give

substantial weight to the government’s evaluation of Mr. Fontenot’s assistance in

the [state] criminal case.” (Appellant’s Opening Br. at 10.) Fontenot also argues

“the provision in the sentencing guidelines that states that the court should give

substantial weight to the government’s evaluation does not apply to substantial

assistance in a state prosecution because the government is in no better a position

than defense counsel to evaluate the assistance provided.” (Id. at 7.)

      Fontenot is mistaken on both counts. Though the court stated it was

“inclined to accept the government’s recommendation” and would “give[ ]

substantial deference . . . to the Government’s evaluation,” we are not convinced

it felt bound by the government’s request. (R. Vol. V at 15, 35.) We presume the


the court’s determination of the extent of that departure reviewable.” Fontenot is
not challenging the degree of departure. Instead, he claims the court committed
legal errors in arriving at his sentence. We have jurisdiction to consider these
claimed errors. See United States v. Sierra-Castillo, 405 F.3d 932, 937 (10th Cir.
2005) (appellate court has “authority to review legal error in the district court’s
interpretation of the Guidelines, even if those errors involve the interpretation of
departure provisions”).

                                          -5-
court was aware it had discretion to determine the degree of departure. See

United States v. Sierra-Castillo, 405 F.3d 932, 936 (10th Cir. 2005) (“A district

court is presumed to understand that it has discretion to downwardly depart unless

the court unambiguously states that it lacks such discretion.).

      We are not persuaded the Sentencing Commission intended to treat

assistance in federal and state prosecutions differently. The commentary to

§5K1.1 provides: “Substantial weight should be given to the government’s

evaluation of the extent of the defendant’s assistance, particularly where the

extent and value of the assistance are difficult to ascertain.” USSG §5K1.1,

comment. n.3. The annotation does not distinguish between state and federal

prosecutions and Fontenot cites no case law or other authority supporting such a

distinction. The court expressly stated the value of Fontenot’s assistance was

difficult to ascertain: “Since this conviction resulted in a guilty plea, the Court

has not had a full independent opportunity to make an evaluation of the matter.”

(R. Vol. V at 35.) While the court could, in exercising its discretion, afford less

weight to the government’s recommendation in a case with which it had little or

no involvement, it is not required to do so.

B. Fontenot’s Rehabilitation

      In rejecting Fontenot’s requested 60% departure, the court explained it

found Fontenot’s assistance was not evidence of rehabilitation, but represented a

calculated attempt to reduce his sentence. Fontenot contends the court erred by

                                          -6-
considering his rehabilitation (or lack thereof) in determining the degree of

departure.

      Section 5K1.1(a) provides: “The appropriate reduction shall be determined

by the court for reasons stated that may include, but are not limited to,

consideration of” five factors:

      (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;

      (5)    the timeliness of the defendant’s assistance.

The court clearly considered these five factors. The question presented is whether

its consideration of a factor outside this non-exhaustive list was improper.

      In United States v. Martin, relied upon by Fontenot, the Eleventh Circuit

held the district court may consider factors outside this list “only if the factors

relate to the assistance provided by the defendant.” 455 F.3d 1227, 1235 (11th

Cir. 2006). However, the court noted: “A refusal to depart . . . may be based on

factors other than substantial assistance. While a court may reward a defendant

only for substantial assistance, the court’s decision to grant a §5K1.1 motion

remains discretionary and the court may consider other factors, such as the

                                          -7-
seriousness of the offense, in refusing to depart. Id. at 1236 n.7 (citation

omitted). The same logic holds true in determining the degree of departure – the

court can consider factors other than the defendant’s assistance.

      Here, the court rewarded Fontenot for his substantial assistance by

departing 40% below the guideline range. It did not reward him further because it

determined a lower sentence would be “far too light to appropriately reflect the

[18 U.S.C. § 3553(a)] factors.” (R. Vol. V at 36.) It described a 60% departure

as “phenomenal” and concluded Fontenot’s assistance did not warrant such a

departure. (Id.) The court did not err in considering rehabilitation as one factor

(among many) in determining the degree of departure.

AFFIRMED.

                                                ENTERED FOR THE COURT

                                                Terrence L. O’Brien
                                                Circuit Judge




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