UNITED STATES COURT OF APPEALS FOR THE D.C. CIRCUIT


IN RE: SEALED CASE


97-3104a

D.C. Cir. 2000


*	*	*


Rogers, Circuit Judge: 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 s
5K1.1 of the U.S. Sentencing Guide- lines ("U.S.S.G." or "the
Guidelines") to sentence a criminal  defendant below the guideline
range for the prescribed of- fense except upon motion by the
government " 'stating that 


the defendant has provided substantial assistance in the  investigation
or prosecution of another person who has com- mitted an offense.' "
Id. at 130 (quoting U.S.S.G. s 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 s 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.


"[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 assis- tance in detecting it.'
" Id. at 286 (quoting United States v.  Frady, 456 U.S. 152, 163
(1982)). 0 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 sen- tence, he concedes that in


cooperation that he had provided to the government in con- nection with
a homicide prosecution in the Superior Court of  the District of
Columbia, he did not specifically argue in the  district court that s
5K1.1 was inapplicable because his coop- eration related to a
non-federal offense. The closest he came  to raising the issue was
when he stated in his first memoran- dum in aid of sentencing that
"under U.S.S.G. s 5K2.0 ...  [his] assistance augurs in favor of a
downward departure."1  Appellant made no mention of s 5K1.1 as a
separate ground  and did not explain why s 5K2.0 authorized departure
in his  case. In his second memorandum in aid of sentencing he  argued
that s 5K1.1 was invalid because Congress had man- dated that
departures based upon cooperation with the gov- ernment be addressed
through sentencing guidelines while  s 5K1.1 is a policy statement,2




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n 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. s 3553(b)(1997). Thus the Guideline,  in
discussing s 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 Sen- tencing Commission in formulating
the guidelines that should  result in a sentence different from that
described.'


U.S.S.G. s 5K2.0, p.s. (1997) (quoting 18 U.S.C. s 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 ex- pressly authorized
the Sentencing Commission to issue general  policy statements
regarding application of the Guidelines. See 28  U.S.C. s
994(a)(2)(1993). Indeed, the court's language in rejecting  this
position was unequivocal: "we have no doubt that the Commis- sion'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. 


thus retained general authority under 18 U.S.C. s 3553(b) to  depart on
the basis of his cooperation, even absent a govern- ment motion for
departure. At a subsequent hearing, the  district court rejected
appellant's 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 s 5K1.1, or any other authority, authorized
depar- ture absent a government motion because of the non-federal 
case on which appellant assisted the government.


On appeal appellant contends only that the district court  erred in
failing to depart under s 5K2.0, given the non- federal nature of the
offense on which he assisted the govern- ment. 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


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 argu- ing that crack so distorted the sentence as to take it out 
of the Guidelines' heartland, we cannot conclude that  Vizcaino
preserved the issue.


United States v. Vizcaino, No. 99-3033, 2000 WL 126769, at  *3 (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  s 5K2.0 and s 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 s 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, 2000 WL 126769, at  *3; Saro, 24 F.3d at 286.


The only question, therefore, is whether it was incumbent  on the
district court sua sponte to consider whether s 5K1.1  was
inapplicable to appellant's request for departure based  upon his
cooperation in connection with a homicide prosecu- tion under District
of Columbia law because the issue was  "plain," that is, either
because the language of s 5K1.1 distin- guished 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 s 5K1.1
applied only to cooperation in con- nection with federal offenses, it
would seem to follow that the  "failure to recognize authority to
depart ... falls far short of  plain error." Vizcaino, 2000 WL 126769,


The language of s 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. s 5K1.1  (first paragraph). Essentially, appellant maintains
that ac- cording to the definition of "offense" in the Commentary to 
s 1B1.1,3 the meaning of that term as used in s 5K1.1 must 




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n 3 The commentary to s 1B1.1 provides in relevant part:


"Offense" means the offense of conviction and all relevant  conduct
under s 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," "feder- al 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 s 1B1.1 "does not fit the  s 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 al- ways refer expressly to non-federal
offenses when they are to  be included in the term "offense," the
unadorned use of that  term in s 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 s 5K1.1.


First, the second sentence in the definition commentary to  s 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 s 5K2.9 p.s. and s
5G1.3(b) with  s 2K2.1, comment (nn.7 & 14); s 4A1.1, comment
(backg'd).  Indeed, to the extent that appellant relies on "[t]he
legislative  antecedents of s 5K1.1," he suggests that there is
nothing  obvious in s 5K1.1 to show that it excludes District of


Second, appellant's reliance on context is self-defeating.  Because of
the unique prosecutorial arrangement in the Dis- trict of Columbia, a
sentencing judge in this district would be  particularly unlikely to
see obvious error in applying s 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 prosecu- tions, the United States Attorney for the District of
Columbia  serves as both a federal and District of Columbia prosecutor




__________

n 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. s 1B1.1, comment (n.1(l )).


and even has authority to join local offenses to federal  charges. See
D.C. Code ss 23-101(c),(d)(1981) (ann.).


Finally, appellant has not pointed to a single case decided  before his
sentencing that supported his interpretation of  s 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 s 5K1.1,  this
decision upon reconsideration came after appellant was  sentenced and
therefore does not influence our review for  plain error.


Because neither the language of s 5K1.1 nor judicial or  other
authority in existence at the time of appellant's sentenc- ing 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 s 5K2.0.  Accordingly, without reaching the merits of
appellant's under- lying legal argument, we affirm the judgment of