United States v. Forrest, 4th Cir. (2003)
United States v. Forrest, 4th Cir. (2003)
No. 02-4808
COUNSEL
Melisa W. Gay, GAY & ASSOCIATES, P.C., Mt. Pleasant, South
Carolina, for Appellant. J. Strom Thurmond, United States Attorney,
Nancy C. Wicker, Assistant United States Attorney, Robert H. Bickerton, Assistant United States Attorney, Charleston, South Carolina,
for Appellee.
OPINION
PER CURIAM:
Kenneth Leonard Forrest pled guilty to conspiracy to possess with
intent to distribute more than 50 grams of crack cocaine, 21 U.S.C.
846 (2000), and was sentenced to 425 months imprisonment. He
appeals his sentence, contending that the district court made inadequate findings to support an adjustment for obstruction of justice, U.S.
Sentencing Guidelines Manual 3C1.1 (2001), erred in refusing to
require the government to move for a substantial assistance departure
under the terms of the plea agreement, and erred when it decided not
to depart below the guideline range pursuant to USSG 4A1.3, p.s.
We affirm in part and dismiss in part.
The charged conspiracy involved twenty-one defendants who distributed crack between 1996 and 2001 in the Hilton Head and Bluffton areas of South Carolina. In a proffer made before he entered into
a plea agreement, Forrest stated that from 1996 to 1998 he sold a
large quantity of cocaine powder to Sabra* Robinson, who then distributed the cocaine as both powder and crack through a number of
subordinates including Jermaine Robinson, Forrests cousin, and
Tyrone Robinson. Forrest stated that Jermaine lived in a trailer with
Sabra and sold cocaine and crack for Sabra. He also said that Tyrone
Robinson sold cocaine and crack for Sabra.
Forrests plea agreement provided that, if he gave truthful cooperation and the government deemed that his cooperation resulted in "substantial assistance in the investigation or prosecution of another
person," the government would move for a downward departure pursuant to USSG 5K1.1, p.s.
*Also spelled "Saber" and "Sabre."
due under the agreement. Id. However, this court held in Snow that
any waiver of the governments discretion must be explicit, not
implied, in the language of the agreement. 234 F.3d at 190. Forrest
relies on contrary decisions from other circuits which are not binding
on this court. See, e.g., United States v. Courtois, 131 F.3d 937, 93839 (10th Cir. 1997) (holding that government may waive 5K1.1 discretion by failing to state that it retains discretion to evaluate defendants assistance).
Moreover, in Forrests plea agreement, the government explicitly
retained its discretion to evaluate Forrests assistance under the terms
of the plea agreement by promising to move for a 5K1.1 departure
if Forrests cooperation "is deemed by the Attorneys for the Government as providing substantial assistance in the investigation or prosecution of another person. . . ." Having deemed that Forrest did not
provide substantial assistance, the government did not breach the plea
agreement by refusing to move for a downward departure for that reason.
When the government has not waived its 5K1.1 discretion, the
district court may review the governments decision not to move for
a departure only on the grounds of bad faith or unconstitutional
motive. Snow, 234 F.3d at 190. A defendant may be entitled to relief
on this ground "if the prosecutors refusal to move was not rationally
related to any legitimate Government end." Wade v. United States,
504 U.S. 181, 186 (1992). Forrest alleges as he did in the district
court that the governments decision was made in bad faith in that it
conditioned Forrests substantial assistance on the outcome of the
trial. Given that the district court found that he had withheld information concerning Tyrone and Jermaine during the governments preparation for trial and in his trial testimony, the district court did not err
in refusing to compel the departure motion.
Finally, Forrest argues that the district court committed reversible
error by denying his request for a downward departure based on his
assertion that criminal history category VI overstated his prior criminal conduct. A district courts decision not to depart below the guideline range is not reviewable on appeal unless it is based on a mistaken
belief that the court lacks authority to depart. United States v. Carr,
271 F.3d 172, 176-77 (4th Cir. 2001). In this case, we conclude that
the court understood its authority to depart.
We therefore affirm the sentence, but dismiss that portion of the
appeal that contests the district courts decision not to depart pursuant
to 4A1.3. We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED IN PART, DISMISSED IN PART