UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellant,

v.                                                                     No. 96-6043

KIM LUCRETIA COPELAND,
Defendant-Appellee.

Appeal from the United States District Court
for the Eastern District of Virginia, at Norfolk.
John A. MacKenzie, Senior District Judge.
(CA-93-156-N)

Argued: October 28, 1996

Decided: September 11, 1997

Before WIDENER and ERVIN, Circuit Judges, and BULLOCK,
Chief United States District Judge for the
Middle District of North Carolina, sitting by designation.

_________________________________________________________________

Affirmed by unpublished opinion. Judge Ervin wrote the opinion, in
which Judge Widener and Chief Judge Bullock joined.

_________________________________________________________________

COUNSEL

ARGUED: Fernando Groene, Assistant United States Attorney, Nor-
folk, Virginia, for Appellant. Bruce Christopher Sams, Norfolk, Vir-
ginia, for Appellee. ON BRIEF: Helen F. Fahey, United States
Attorney, Norfolk, Virginia, for Appellant.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

ERVIN, Circuit Judge:

The government appeals the district court's decision to grant Kim
Copeland (Copeland) a sentence reduction pursuant to Federal Rule
of Criminal Procedure 35(b), arguing that the court was without
power to make such a reduction absent a motion by the government.
For the reasons hereinafter explored, we affirm Copeland's reduced
sentence.

I

In November 1993, Copeland and ten others were charged, in an
eighty five count indictment, with numerous narcotics offenses. On
January 20, 1994, Copeland pleaded guilty to conspiracy to possess
with intent to distribute in excess of 50 grams of crack. The plea
agreement she entered provided that Copeland would cooperate with
the United States in its investigations, would testify at trials and grand
jury proceedings, and would submit to polygraph tests at the request
of the United States. The agreement also provided that the govern-
ment reserved its option to move the court for a sentence reduction
based upon substantial assistance if the government,"in its sole dis-
cretion," determined that such assistance had been rendered.

By the end of January, 1994, seven of the eleven indicted conspira-
tors had entered guilty pleas and agreed to testify against their co-
conspirators. Two of the remaining four conspirators, Howard Hud-
son and Michael Hunter, were scheduled to stand trial, and the
remaining two indicted conspirators were still at large. The Hud-
son/Hunter trial, conducted in March 1994, lasted five days. Copeland
testified on behalf of the prosecution for the first day and one-half of
the trial. Copeland testified extensively despite the fact that she and
Hudson had been romantically involved and she still had strong feel-
ings for him. The jury ultimately convicted Hudson on eighteen

                     2
counts related to drug offenses and convicted Hunter on one conspir-
acy count. Hudson received a sentence of life plus 300 months and
Hunter received a sentence of 235 months imprisonment.

Copeland was sentenced in May 1994. The sentencing court was
at odds with the government regarding the appropriate sentences for
several of the conspirators who had pleaded guilty. With respect to
Copeland, the government sought life imprisonment and several spe-
cific sentencing enhancements. The court declined to give Copeland
an enhancement for her alleged role in the conspiracy and for her
alleged possession of a firearm in the course of the conspiracy, find-
ing that there was no evidence to support either enhancement. The
court also found that the very high quantity of drugs upon which the
government based its request for a life sentence could only be proven
by Copeland's own statements given to the government in the course
of her cooperation. Because the evidence was the fruit of her coopera-
tion, the court concluded that it would violate Copeland's plea agree-
ment to use that information against her in sentencing, and therefore
sentenced her based upon a much lower quantity of drugs. The court
sentenced Copeland at the bottom of her Guideline range, to 168
months imprisonment. The government initially sought to appeal the
court's denial of its sentencing requests but later withdrew its motion.

At Copeland's sentencing hearing the government declined to
make a motion for downward departure, but indicated that it would
likely make such a motion at a later time. Copeland continued to
cooperate with the government after her sentencing. She was prepared
by the government to testify before the grand jury against unindicted
narcotics co-conspirators. Although Copeland was willing to testify,
she continually denied knowledge of the involvement of one of the
government's targets in the conspiracy, Kiddy Campbell. Copeland
agreed to take, but failed, a polygraph test to confirm the information
she gave denying the involvement of Campbell. Because she would
not incriminate Campbell, the government declined to use her testi-
mony to secure his indictment.

After all the conspirators had been sentenced, the government
moved for downward departures for the other six conspirators who
had cooperated with the government. The court granted each motion
and significantly reduced each defendant's sentence. The government

                    3
did not move for a departure for Copeland alone, citing Copeland's
inability to incriminate Campbell and her failure on the polygraph
test. The government also asserted that during at least one of Cope-
land's debriefings and during her own sentencing hearing, she mini-
mized the extent of the overall conspiracy below the level she had
originally described, and below the level that the government believed
was accurate.

One year after her sentencing, Copeland herself moved the court to
reduce her sentence pursuant to Federal Rule of Criminal Procedure
35(b). An evidentiary hearing was held on the issue. The district court
concluded that the government's refusal to depart downward for
Copeland when it did so for each of her six fellow cooperators, whose
assistance to the government had been much less, was not rationally
related to a legitimate government end. The court found that the
record and his own observation of the Hunter/Hudson trial proved that
Copeland rendered substantial assistance and that she was essential to
securing both convictions. Finally, although the government submit-
ted to the district court evidence of Copeland's poor behavior in
prison and argued that such behavior justified the government's
refusal to make a Rule 35(b) motion, the sentencing court declined to
find that her discipline problems bore any relationship to her compli-
ance with the plea agreement. After concluding that the government
had no rational basis for denying Copeland a motion for downward
departure, the court granted a departure down to 75 months, which the
court noted was proportional to the departures granted to other defen-
dants. The government now appeals that decision.

II

The issue before us is whether the district court erred in finding
that the government's failure to move for a downward departure for
substantial assistance was not rationally related to a legitimate gov-
ernment end and in therefore granting a downward departure absent
a government motion. On the unique facts of this case, we affirm the
lower court's decision.

A

We have fashioned a sliding-scale standard of review for use in
appeals involving application of the Sentencing Guidelines. United

                    4
States v. Daughtrey, 874 F.2d 213, 217 (4th Cir. 1989). Factual find-
ings made by the district court in connection with a sentencing deci-
sion are reviewed for clear error while legal interpretations of the
Guidelines are reviewed de novo. Id.; see also United States v. Blake,
81 F.3d 498, 503 (4th Cir. 1996). Therefore, in this case we will give
deference to the factual findings underlying the district court's con-
clusion that the government had no rational basis for denying Cope-
land a downward departure. However, we will review closely the
legal conclusion that those facts do not constitute a rational basis for
government policy.

B

Three provisions of federal law address departure downward from
the Sentencing Guidelines and from congressionally-mandated statu-
tory minimums as a reward for substantial assistance: § 5K1.1 of the
Sentencing Guidelines, 18 U.S.C. § 3553(e), and Rule 35(b) of the
Federal Rules of Criminal Procedure. In the instant case, Rule 35(b)
is implicated because it alone covers departure motions made after
sentence has initially been entered.

Rule 35(b) provides:

          Reduction of Sentence for Changed Circumstances. The
          court, on motion of the Government made within one year
          after the imposition of the sentence, may reduce a sentence
          to reflect a defendant's subsequent, substantial assistance in
          the investigation or prosecution of another person who has
          committed an offense, in accordance with the guidelines and
          policy statements issued by the Sentencing Commission
          pursuant to section 994 of title 28, United States Code. . . .
          The court's authority to reduce a sentence under this subsec-
          tion includes the authority to reduce such sentence to a level
          below that established by statute as a minimum sentence.

Although U.S.S.G. § 5K1.1 and 18 U.S.C. § 3553(e) are not directly
implicated in the instant decision, our previous interpretations of
those provisions are certainly relevant and useful when addressing
Rule 35(b).

                    5
C

The law governing downward departures for substantial assistance
is well established. In Wade v. United States , 504 U.S. 181, 185
(1992), the Supreme Court decided that the plain language of
§ 3553(e) permits only the government to move for a departure to
reward cooperation. The Court found that the government has a
power, but "not a duty," to file a motion when a defendant has sub-
stantially assisted. The Court recognized only two narrow exceptions
to this rule: a defendant may have relief from the district court when
the government's failure to file a substantial assistance motion is
based upon an unconstitutional motive, such as racial or religious ani-
mus, or when the decision not to make the motion is"not rationally
related to any legitimate Government end." Id. at 185-86.

We have followed the Supreme Court's lead and interpreted the
Wade exceptions narrowly, generally holding that the decision not to
make a downward departure motion is properly within the govern-
ment's power. See, e.g., United States v. Maddox, 48 F.3d 791, 795-
96 (4th Cir. 1995) (reversing district court's decision to grant down-
ward departure pursuant to § 5K1.1 and 18 U.S.C. § 3553 absent
motion from the government); United States v. Wallace, 22 F.3d 84,
87-88 (4th Cir. 1994) (affirming district court's refusal to depart for
substantial assistance absent government motion). We have never,
however, held or implied that government discretion in this arena is
unfettered. See, e.g., United States v. Dixon, 998 F.2d 228, 231 (4th
Cir. 1993) (holding that because defendant had provided substantial
assistance, government had to fulfill promise to move for downward
departure at sentencing). We reaffirm today the importance of the
constitutional constraints placed on government power in the realm of
substantial assistance.

We agree with the court's analysis that the government's refusal to
request a departure in this case was not rationally related to any legiti-
mate government end. However, we limit our holding in this respect
to the unique facts of the case before us.

As an initial matter, we are persuaded that the court below had a
great deal of knowledge about the unique facts and circumstances of
all aspects of this case. The district court presided over many proceed-

                     6
ings related to Copeland's case and the cases of her co-conspirators
and has direct knowledge of the assistance she provided. The court
was in a unique position to judge Copeland's cooperation in compari-
son with the six other conspirators who received a downward depar-
ture and to determine whether the distinction the government made in
denying a departure to Copeland alone was a legitimate and rational
one.

We specifically affirm several of the district court's factual find-
ings and agree that they support the conclusion that the government's
decision in this case was not rationally related to a legitimate govern-
ment end. First, the court found that Copeland's extensive coopera-
tion with the government constituted substantial assistance. The court
found the government's attempt to characterize Copeland's participa-
tion at the Hudson/Hunter trial as not helpful to be disingenuous. It
is apparent from the record that Copeland's cooperation was essential
to the convictions secured at that trial. In our unpublished opinion
affirming Hunter and Hudson's convictions, United States v. Hudson,
No. 94-5392 (4th Cir. Dec. 7, 1995), we named Copeland as a cooper-
ating witness and relied in part upon information she provided.

Second, the district court refused to find that Copeland was mini-
mizing the scope of the conspiracy when she testified and when she
met with government agents, and we agree with this conclusion. The
court credited Copeland's estimates of the quantities of drugs
involved at various points in the conspiracy more than the "general-
ized and unsubstantiated estimates provided by an obviously over-
zealous law enforcement officer with an interest in enlarging the
proverbial notch on his belt." Moreover, the district court was rightly
troubled by the government's implication that if a witness cooperates,
but gives information other than that which the government had
expected, the government can say that the defendant failed to cooper-
ate.

Third, the court found that the government, in not requesting a
departure, was motivated by the fact that Copeland could not impli-
cate one of their investigation's targets, Kiddy Campbell. However,
the district court credited testimony that Copeland had not seen
Campbell conduct any drug deals and had never participated in illicit
activity with him. The district court concluded that she had not been

                    7
dishonest when she told prosecutors that she lacked knowledge that
Campbell was a drug dealer.1

One fact which supports the government's decision not to seek a
departure in this case is that Copeland did not completely pass a poly-
graph examination. Specifically, the test suggested that she was not
fully truthful when asked if she had given the complete truth about
Kiddy Campbell. However, the district court made several findings
regarding the polygraph examination and, upon examination of the
record, we agree with those findings. The court discredited the poly-
graph result as unreliable given the circumstances of the examination
and the types of questions asked, and found the test to be inadmissible
for any purpose. The court further found that, at worst, the false state-
ment represented only one error during numerous debriefings by the
government and during days of testimony. The district court was par-
ticularly convinced about Copeland's honesty with respect to Camp-
bell because she had testified so completely and damningly against
Hudson, a man with whom she was in love. The court reasoned that
there was a strong presumption against Copeland lying to protect
Campbell, a man she scarcely knew, when she had fully incriminated
Hudson. Furthermore, the court was able to make its own credibility
determinations about Copeland's cooperation when she testified
extensively and under strenuous cross-examination at the hearing on
her Rule 35(b) motion. Given these facts, the court declined to find
that the single polygraph question provided a rational basis for denial
of a downward departure and we agree.

We believe that the district court's factual findings are thoroughly
supported by the record and the government has not shown us that
any of those findings are clearly erroneous. We further agree with the
conclusion that, based upon these facts, the government's decision not
to request a downward departure was not rationally related to any
legitimate government end.
_________________________________________________________________

1 It is noteworthy that Copeland's plea agreement bound her to testify
truthfully, not to exclusively provide inculpatory evidence regarding
other conspirators or evidence which supports the government's case.

                     8
III

Although we agree with the above factually-grounded reasoning
upon which the district court based its decision to depart, we conclude
that the same result is independently mandated by our decision in
United States v. Martin, 25 F.3d 211 (4th Cir. 1994).2 In Martin the
defendant pleaded guilty and his plea agreement, like the one Cope-
land signed, allowed the government, in its sole discretion, to make
a motion for downward departure pursuant to either§ 5K1.1 or Fed.
R. Crim. P. 35(b). Id. at 213. Martin cooperated significantly, and, at
his sentencing, the government told the court that it intended to make
a downward departure motion at a later time to reward his coopera-
tion. The government wanted the defendant to continue to cooperate
in the meantime and perhaps secure an even greater reduction in his
sentence. Id. at 214. After sentencing, however, Martin had no oppor-
tunities for further cooperation. The government made a Rule 35(b)
motion for downward departure to reward him for the cooperation he
had provided prior to sentence. Id. at 215. However, the district court
held that Rule 35(b) only allowed departure for cooperation after sen-
tencing and that § 5K1.1, employed at the time of sentencing, was the
proper vehicle to reward presentence assistance. The court felt that
because of this it could not reward Martin for his presentence cooper-
ation. Id. at 215. Martin and the government joined in an appeal of
that decision.

On appeal, we found that the district court's reading of the applica-
ble provisions to require § 5K1.1 motions to encompass pre-sentence
cooperation and Rule 35 motions to cover post-sentence cooperation
was correct. However, we did not agree that no relief was available
to Martin. Id. at 216. We held that the government cannot delay a
request for downward departure until after sentencing where a depar-
_________________________________________________________________
2 Martin is still good law in this circuit. See, e.g., United States v.
Speed, 53 F.3d 643, 645 n.3 (4th Cir. 1995) (stating that Martin is still
binding authority, absent intervention by the en banc court or revision of
Rule 35(b) by Congress). We note, however, that Judge Ellis' concur-
rence in Speed, 53 F.3d at 647, questions whether Martin's interpretation
of Rule 35 is valid, and the District of Colombia Circuit criticized the
Martin decision and declined to follow it in United States v. White, 71
F.3d 920, 926 (D.C. Cir. 1995).

                    9
ture would be proper in light of pre-sentencing assistance. Id. at 216.
We reasoned:

          If the government defers making a U.S.S.G. § 5K1.1 motion
          on the premise that it will make a Fed. R. Crim. P. 35(b)
          motion after sentencing, the sentence that follows deprives
          a defendant of due process, and is therefore "in violation of
          law."

Id. at 216 (internal citations omitted). We concluded that cases such
as Martin should be remanded to allow the government to consider
anew the assistance at the time of sentencing and whether it merited
a departure. Id.

Martin's reasoning supports the district court's decision in this case
to grant Copeland relief from the government's refusal to make a
downward departure motion. It is clear that Copeland would have
received a motion for downward departure had the government made
its decision at the time of sentencing. All of the government's prof-
fered reasons for declining to seek a departure occurred after Cope-
land was already sentenced, and her cooperation before sentencing
was undeniably significant. Therefore, pursuant to Martin the govern-
ment should not have been allowed to continue to withhold a depar-
ture motion from Copeland given that she had, as of sentencing,
substantially assisted.

IV

In sum, we agree with the district court's decision to grant Cope-
land a downward departure for her substantial assistance. The govern-
ment's decision not to seek such a departure in this case is not
rationally related to a legitimate government end; that decision also
violates Copeland's Due Process rights as we warned of in Martin.
The district court crafted an appropriate remedy when it granted
Copeland a downward departure commensurate with those received
by her fellow cooperators. Therefore Copeland's reduced sentence is

AFFIRMED.

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