204 F.3d 1170 (D.C. Cir. 2000)
In re:  Sealed Case
No. 97-3104
United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued January 27, 2000Decided March 14, 2000

Appeal from the United States District Court for the District of Columbia(No. 96cr00095-01)
Evelina J. Norwinski, Assistant Federal Public Defender,  argued the cause for appellant.  A.J. Kramer, Federal Public  Defender, Carmen D. Hernandez and Reita  Pendry, Assistant Federal Public Defenders were on the briefs.
Elizabeth H. Danello, Assistant U.S. Attorney, argued the  cause for appellee.  With her on the brief were Wilma A.  Lewis, U.S. Attorney, John R. Fisher and Patricia Stewart,  Assistant U.S. Attorneys.
Before:  Edwards, Chief Judge, Ginsburg and Rogers,  Circuit Judges.
Opinion for the Court filed by Circuit Judge Rogers.
Rogers, Circuit Judge:


1
In In re Sealed Case No. 97-3112  (Sentencing Guidelines' "Substantial Assistance"), 181 F.3d  128 (D.C. Cir. 1999) (in banc), the court held that a district  court may not invoke      5K1.1 of the U.S. Sentencing Guidelines ("U.S.S.G." or "the Guidelines") to sentence a criminal  defendant below the guideline range for the prescribed offense except upon motion by the government " 'stating that the defendant has provided substantial assistance in the  investigation or prosecution of another person who has committed an offense.' "  Id. at 130 (quoting U.S.S.G.      5K1.1,  p.s. (1997)).  Appellant contends that there is an exception to  the motion requirement where the assistance relates to a  District of Columbia offense, and hence the district court  erred in denying his departure request.  Specifically, he  contends that the term "offense" in      5K1.1 refers solely to  federal offenses, and that he thus may receive a departure  below the level prescribed by the Guidelines on the basis of  his assistance to law enforcement officers with regard to a  homicide prosecution under the District of Columbia Code,  even though the government never filed a motion in support  of such departure.  Because appellant never presented this  argument to the district court, our review is for plain error  and we find none.

I.

2
"[A] request for an adjustment under the Guidelines is  [forfeited] if the argument is not made at sentencing," and  this court "will review sentencing issues raised for the first  time on appeal [only] for 'plain error.' "  United States v.  Foster, 988 F.2d 206, 209 (D.C. Cir. 1993);  see United States  v. Klat, 156 F.3d 1258, 1267 (D.C. Cir. 1998) (plain error  review applied to departures as well as adjustments not  requested in the district court);  United States v. Ortez, 902  F.2d 61, 64 (D.C. Cir. 1990);  see also United States v. Olano,  507 U.S. 725, 731 (1993).  While our plain error review in the  sentencing context requires a "slightly less exacting" showing  of prejudice than for trial errors, see United States v. Saro,  24 F.3d 283, 287 (D.C. Cir. 1994), an appellant must still show  that "from the perspective of the trial court[,] the error [was]  'so "plain" [that] the trial judge and prosecutor were derelict  in countenancing it, even absent the defendant's timely assistance in detecting it.' "  Id. at 286 (quoting United States v.  Frady, 456 U.S. 152, 163 (1982)).


3
Appellant pleaded guilty to one count of a ten count  indictment, and was sentenced to 57 months' imprisonment  after receiving a downward departure under United States v.  Smith, 27 F.3d 649 (D.C. Cir. 1994).  In appealing his sentence, he concedes that in seeking a downward departure for cooperation that he had provided to the government in connection with a homicide prosecution in the Superior Court of  the District of Columbia, he did not specifically argue in the  district court that      5K1.1 was inapplicable because his cooperation related to a non-federal offense.  The closest he came  to raising the issue was when he stated in his first memorandum in aid of sentencing that "under U.S.S.G.      5K2.0 ...  [his] assistance augurs in favor of a downward departure."1Appellant made no mention of      5K1.1 as a separate ground  and did not explain why      5K2.0 authorized departure in his  case.  In his second memorandum in aid of sentencing he  argued that      5K1.1 was invalid because Congress had mandated that departures based upon cooperation with the government be addressed through sentencing guidelines while       5K1.1 is a policy statement,2 and that the district court may impose a sentence outside the range established by theapplicable guideline, if the court finds 'that there exists anaggravating or mitigating circumstance of a kind, or to adegree, not adequately taken into consideration by the Sen-tencing Commission in formulating the guidelines that shouldresult in a sentence different from that described.'U.S.S.G.      5K2.0, p.s. (1997) (quoting 18 U.S.C.      3553(b)).thus retained general authority under 18 U.S.C.      3553(b) to  depart on the basis of his cooperation, even absent a government motion for departure.  At a subsequent hearing, the  district court rejected appellant's      5K1.1 argument, ruling  that it lacked authority to depart on the basis of appellant's  cooperation "in the absence of a 5K1.1 letter" from the  government.  Thus, appellant never argued to the district  court that      5K1.1, or any other authority, authorized departure absent a government motion because of the non-federal  case on which appellant assisted the government.


4
On appeal appellant contends only that the district court  erred in failing to depart under      5K2.0, given the nonfederal nature of the offense on which he assisted the government.  Yet contrary to appellant's apparent position, it is not  enough for purposes of preserving an argument for appeal for  the defendant to discuss the general circumstances of his case  without in some manner signaling to the district court how  those circumstances bear on the district court's authority to  grant a downward departure request in the absence of a  government motion.  As the court has recently observed in  an analogous case:


5
To be sure, Vizcaino was not required to state the issue as clearly as appellate counsel has, or, for that matter, even to cite to section 5K2.0 in order to preserve the issue for appeal.  But absent any statement that the district court could have reasonably interpreted as arguing that crack so distorted the sentence as to take it out of the Guidelines' heartland, we cannot conclude that Vizcaino preserved the issue.


6
United States v. Vizcaino, 202 F.3d 345, 348 (D.C. Cir. Feb. 15, 2000) (and distinguishing United States  v. Beckham, 968 F.2d 47 (D.C. Cir. 1992)).  So too here,  appellant never made the argument to the district court that  he raises on appeal, and to the extent that he referred to       5K2.0 and      3553(b), he never suggested to the district  court why either would entitle him to a departure because of  his non-federal cooperation, while his reliance on the latter  was based upon an argument since rejected by this court. See supra note 2.  Therefore, because the issue of whether the district court had authority to depart under      5K2.0  based on appellant's assistance on a non-federal offense was  never presented in the district court, it was forfeited and our  review is for plain error.  See Vizcaino, 202 F.3d at 348;  Saro, 24 F.3d at 286.


7
The only question, therefore, is whether it was incumbent  on the district court sua sponte to consider whether      5K1.1  was inapplicable to appellant's request for departure based  upon his cooperation in connection with a homicide prosecution under District of Columbia law because the issue was  "plain," that is, either because the language of      5K1.1 distinguished between federal and local offenses, or there was  persuasive judicial authority for making that distinction, or  the legal norm at issue was absolutely clear.  See United  States v. Merlos, 8 F.3d 48, 51 (D.C. Cir. 1993).  Appellant  does not suggest that the latter consideration is relevant  here, and we agree.  Thus, absent clear language in the  Guidelines, or precedent from the Supreme Court, this court,  or another circuit court of appeals at the time of appellant's  sentencing that      5K1.1 applied only to cooperation in connection with federal offenses, it would seem to follow that the  "failure to recognize authority to depart ...  falls far short of  plain error."  Vizcaino, 202 F.3d at 348


8
The language of      5K1.1 makes no distinction between  local and federal offenses and merely uses the term "offense":"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."  U.S.S.G.      5K1.1  (first paragraph).  Essentially, appellant maintains that according to the definition of "offense" in the Commentary to       1B1.1,3 the meaning of that term as used in      5K1.1 must "Offense" means the offense of conviction and all relevant conduct under      1B1.3 (Relevant Conduct) unless a different meaning is specified or is otherwise clear from the context. The term "instant" is used in connection with "offense," "federal offense," or "offense of conviction" as the case may be, to be determined contextually;  that is, in appellant's view, the  narrow definition of "offense" in      1B1.1 "does not fit the       5K1.1 formulation" because it refers to the offense of  conviction rather than the offense to which assistance was  provided.  Because, appellant maintains, the Guidelines always refer expressly to non-federal offenses when they are to  be included in the term "offense," the unadorned use of that  term in      5K1.1 should be interpreted to refer only to federal  offenses.  Appellant also relies on the fact that the Guidelines  have sometimes included a separate definition when offenses  under state, tribal, or military law are to be included.  Yet for  plain error purposes it is not obvious that offenses under  District of Columbia law are excluded from      5K1.1.


9
First, the second sentence in the definition commentary to       1B1.1 indicates that the term "offense" is broader than  federal offenses.  That explicit statements exist in other  sections of the Guidelines describing the covered offenses to  include non-federal offenses is hardly dispositive on plain  error review.  Compare      5K2.9 p.s. and      5G1.3(b) with       2K2.1, comment (nn.7 & 14);       4A1.1, comment (backg'd).Indeed, to the extent that appellant relies on "[t]he legislative  antecedents of      5K1.1," he suggests that there is nothing  obvious in      5K1.1 to show that it excludes District of Columbia offenses.


10
Second, appellant's reliance on context is self-defeating. Because of the unique prosecutorial arrangement in the District of Columbia, a sentencing judge in this district would be  particularly unlikely to see obvious error in applying      5K1.1  to cooperation involving local prosecutions.  Unlike other  districts in which the role of the United States Attorney does  not blur the distinction between federal and state prosecutions, the United States Attorney for the District of Columbia  serves as both a federal and District of Columbia prosecutor and even has authority to join local offenses to federal  charges.  See D.C. Code     23-101(c),(d)(1981) (ann.).


11
Finally, appellant has not pointed to a single case decided  before his sentencing that supported his interpretation of       5K1.1.  In fact, as of appellant's sentencing, the Second,  Third, and Ninth Circuits had all rejected his argument.  See  United States v. Kaye, 65 F.3d 240, 242 (2d Cir. 1995),  vacated, 140 F.3d 86 (2d Cir. 1998);  United States v. Emery,  34 F.3d 911, 913 (9th Cir. 1994);  United States v. Love, 985  F.2d 732, 733 (3d Cir. 1993).  Indeed, appellant's counsel  conceded during oral argument in this court that there was  no judicial authority whatsoever in his favor at the time of his  sentencing.  Although the Second Circuit later reconsidered  its decision and adopted appellant's interpretation of      5K1.1,  this decision upon reconsideration came after appellant was  sentenced and therefore does not influence our review for  plain error.


12
Because neither the language of      5K1.1 nor judicial or  other authority in existence at the time of appellant's sentencing would have caused the district court on its own to have  considered that there might be such an issue in appellant's  favor, much less apposite authority even now to demonstrate  plain error, the district court did not plainly err in denying  appellant's request for a downward departure under      5K2.0.Accordingly, without reaching the merits of appellant's underlying legal argument, we affirm the judgment of conviction.



Notes:


1
 Section 5K2.0 identifies "some of the factors that the [U.S.  Sentencing] Commission has not been able to take into account fully  in formulating the [G]uidelines", in order to provide guidance to  courts in applying 18 U.S.C.      3553(b)(1997).  Thus the Guideline,  in discussing      3553(b), states that a court:
may impose a sentence outside the range established by the 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 the described.'
U.S.S.G.  5K2.0, p.s. (1997) (quoting 18 U.S.C.  3553(B)).


2
 This argument has since been rejected by In re Sealed Case No.  97-3112, 149 F.3d 1198, 1200-01 (D.C. Cir. 1998), vacated in part on  other grounds, 159 F.3d 1362 (D.C. Cir. 1998).  See also In re  Sealed Case No. 97-3112, 181 F.3d at 131 n.3.  Furthermore, the  argument is unpersuasive on its face, inasmuch as Congress expressly authorized the Sentencing Commission to issue general  policy statements regarding application of the Guidelines.  See 28  U.S.C.      994(a)(2)(1993).  Indeed, the court's language in rejecting  this position was unequivocal:  "we have no doubt that the Commission's decision to issue a policy statement rather than a guideline in  response to section 994(n) amounted to a permissible, if not the only  reasonable, construction of the statute."  In re Sealed Case No.  97-3112, 149 F.3d at 1201.


3
 The commentary to      1B1.1 provides in relevant part:
"Offense" means the offense of conviction and all relevant conduct under  1 B 1.3 (Relevant Condutc) unless a different mening is specified or is otherwise clear from the context. The term "instant" is used in connection with "offense," "federal offense," or "offense of conviction" as the case may be, to distinguish the violation for which the defendant is being sentenced from a prior or subsequent offense, or from an offense before another court (e.g. an offense before a state court involving the same underlying conduct).
U.S.S.G.      1B1.1, comment (n.1(l )).


