Unpublished Disposition, 933 F.2d 1017 (9th Cir. 1991)

MEMORANDUM^* 

James Sarmiento appeals his sentence, following his plea of guilty to a charge that he conspired to distribute 510 grams of cocaine in violation of 21 U.S.C. §§ 841(a) (1) and 846. He argues that the district court erred in holding that it could depart downward from the sentencing guideline range and from the mandatory minimum sentence of five years based on substantial assistance to law enforcement only upon a motion by the government. He asserts that the sentencing guidelines' treatment of departures for substantial assistance conflicts with 28 U.S.C. § 994(n) and violates due process. We reject his arguments and AFFIRM the sentence.

Based on the amount and type of drug, 21 U.S.C. § 841 provides that Sarmiento be sentenced "to a term of imprisonment which may not be less than 5 years and not more than 40 years ..." 21 U.S.C. § 841(b) (1) (B) (ii) (II). After factoring in Sarmiento's lack of prior criminal history and his acceptance of responsibility for the charged crime, the guideline range is from 51 to 63 months. Sarmiento sought a departure below both the mandatory minimum sentence and the guideline range based on assistance he provided in investigations of others involved in distributing cocaine in Guam. The district court denied the request for a departure, holding that the filing of a motion for departure based on substantial assistance is left to the sole discretion of the prosecutor. It therefore sentenced Sarmiento to the mandatory minimum sentence of five years.

We review the legality of a criminal sentence de novo. United States v. Cervantes-Lucatero, 889 F.2d 916, 917 (9th Cir. 1989). Whether the Sentencing Guidelines violate due process or conflict with the authorizing statute is a question of law and is reviewed do novo. See United States v. McConney, 728 F.2d 1195, 1201 (9th Cir.) (en banc), cert. denied, 469 U.S. 824 (1984).

Both Sec. 5K1.1 of the Sentencing Guidelines and 18 U.S.C. § 3553(e) ("Limited authority to impose a sentence below a statutory minimum"), expressly require a government motion in order for the sentencing court to impose a sentence below the guideline range or the mandatory minimum based on the defendant's substantial assistance in the investigation or prosecution of another. This circuit has recently recognized that "there may be extreme situations in which the defendant's reliance on the government's inducements may permit a downward departure in the absence of a government motion." United States v. Mena, 925 F.2d 354, 356 (9th Cir. 1991). There is nothing in this record, however, to suggest that this is such a situation and, indeed, Sarmiento does not rest the challenge to his sentence on allegations of inducements or misconduct by the government.

Rather, Sarmiento asserts that the United States Sentencing Commission has failed to comply with the requirements of 28 U.S.C. § 994(n), and that U.S.S.G. Sec. 5K1.1's requirement that downward departures for substantial assistance be only upon a motion by the government is not authorized by statute and therefore violates due process. This circuit has already considered and rejected the latter argument. United States v. Ayarza, 874 F.2d 647, 652 (9th Cir. 1989), cert. denied, 110 S. Ct. 847 (1990). In Ayarza, the defendant challenged Sec. 5K1.1's and Sec. 3553's government motion requirements as violative of the doctrine of separation of powers and of due process. Id. at 653. We rejected both constitutional arguments and held that "section 3553 and 5K1.1 are not unconstitutional insofar as they allow only the Government to seek a departure from the minimum mandatory sentence to reflect a defendant's 'substantial assistance.' " Id. We likewise rejected the contention that Sec. 5K1.1 was "an invalid exercise of the Sentencing Commission's delegated authority because 28 U.S.C. § 994(n) ... does not limit the district court's sentencing discretion to motions brought by the government," holding that "the Sentencing Commission did not exceed its authority in drafting such a requirement in view of the fact that Congress itself drafted section 3553 the same way." Id. at 653, n. 2.

Sarmiento's first contention, that the guidelines violate due process because there is no guidelines provision specifically allowing for a downward departure below the statutory minimum sentence (as opposed to the guideline range), and 28 U.S.C. § 994(n) mandates promulgation of such a provision, is likewise without merit. Section 994(n) provides in general terms that:

The Commission shall assure that the guidelines reflect the general appropriateness of imposing a lower sentence than would otherwise be imposed, including a sentence that is lower than that established by statute as a minimum sentence, to take into account a defendant's substantial assistance in the investigation or prosecution of another person who has committed an offense.

Section 5K1.1 provides for departure "from the guidelines" based on a defendant's substantial assistance to authorities. Although the language of the Sec. 5K1.1 "policy statement" does not itself address departures below the statutory minimum, Application Note 1 recognizes that " [u]nder circumstances set forth in 18 U.S.C. § 3553(e) and 28 U.S.C. § 994(n), as amended, substantial assistance in the investigation or prosecution of another person who has committed an offense may justify a sentence below a statutorily required minimum sentence." Thus, appellant's contention that the guidelines fail to address departures below mandatory minimum sentences is incorrect. That the Sentencing Commission opted not to refer explicitly to mandatory minimum sentences in the text of Sec. 5K1.1 itself violates neither Sec. 994(n) nor due process.

The district court correctly rejected appellant's motion for a downward departure based on substantial assistance. The sentence is, therefore, AFFIRMED.