Second Circuit Issues Notable Decision on the Sentencing of Cooperators Subject to Mandatory Minimums

In a case with far-reaching ramifications, the Second Circuit vacated and remanded a sentence of a cooperator that was 93% below the statutory minimum to which the cooperator was subject, on the grounds that the district court failed adequately to explain its reasons for such an extensive departure.  The decision contains potentially troubling limitations on the sentencing court's discretion in cases involving cooperators subject to mandatory minimums.

In United States v. Richardson, 05 CR 7005, 2008 WL 398969 (2d Cir. February 15, 2008), the defendant faced a guideline range of 63 to 78 months, but was also subject to a 20-year mandatory minimum. The government filed motions for a downward departure under U.S.S.G. § 5K1.1, and for a sentence below the statutory minimum pursuant to 18 U.S.C. § 3553(e), based on the defendant's cooperation with authorities after her arrest. The defense sought a sentence below the 63-78 guideline range, citing her post-offense rehabilitation.  The government, on the other hand, using 240 months as its starting point, recommended a three-level reduction for the defendant's cooperation, and thus advocated a guideline range of 151 to 188 months.  The court imposed a sentence of time-served (approximately 15 months), based on "all the pertinent information" and "all the circumstances in the case."

Particularly noteworthy in the decision is the Second Circuit's rejection of the district court's position that given the government's motions, "the mandatory minimum is no longer applicable" and therefore, "I have discretion to sentence you as to what I feel would be fair and reasonable under the circumstances."  The Court pointed out that where the mandatory minimum exceeds the applicable guideline range, the sentencing court must "set the Guidelines sentence at the statutorily required minimum." Furthermore, "[w]hen, as here, the Guidelines sentence ends up as the statutory minimum, any reduction may be based only on substantial assistance to the government and on no other mitigating considerations" (emphasis added).

This conclusion may be impeccable as a matter of statutory construction, but the Court could as easily have adopted a plausible argument that would permit a court to consider factors outside the defendant's cooperation in fixing the appropriate sentence (i.e. 3553(e) requires the court to impose its sentence "in accordance with the guidelines and policy statements issued by the Sentencing Commission," and § 5K1.1 sets forth a series of non-exhaustive factors to be considered in determining the appropriate downward departure).  

In any event, it should be noted that courts often use the applicable guideline as opposed to the mandatory minimum as their starting off point when sentencing cooperators, and also routinely take into account the cooperator's personal circumstances and history.  This practice - now outlawed by Richardson - makes particular sense, when one considers that prosecutors often require their cooperators to plead to the highest available mandatory minimum, to incentivise the cooperation and magnify the stakes in the eyes of the jury.  Absent a cooperation agreement, the defendant may well have been permitted to plead to a much lower mandatory minimum.  The procedure outlined in Richardson, therefore, may actually make cooperation less attractive, hardly something the Court would favor.  And since the prosecutor is arguably the best judge of the usefulness of the cooperation, Richardson also unnecessarily empowers the prosecutor at the expense of the district court's sentencing discretion.

UPDATE:  The Court issued an amended opinion in this case on March 20, 2008, available at 521 F.3d 149 (2d Cir. 2008).  In the amended opinion, the Court adds the following sentence to the troubling language cited above:  “In arriving at a final sentence, of course, the district court may consider other factors in determining whether to grant the full extent of the departure permitted by § 3553(e).”  The Second Circuit Blog concludes that, although not a model of clarity, "[t]he amended version can be fairly construed to hold that substantial assistance is the only thing the district court can consider in deciding whether to depart in 3553(e) cases, but other mitigating factors can be considered in determining the extent of the departure."