WDNY Judge Rejects Government's Effort to Confine 5K1.1 Departure to One of Defendant's Two Counts of Conviction

In an interesting decision from Judge Larimer in the Western District of New York, United States v. Nix, 07 CR 60221 (DGL), 2008 WL 4757301 (W.D.N.Y. October 28, 2008), he rejected the government's effort to limit his power to depart below both mandatory minimum sentences called for by the defendant's two counts of conviction.  The government had purported to move for a substantial assistance departure under Count One, and not Count Two (which charged a violation of 924(c) and carried a mandatory consecutive five year sentence). 

Citing the defendant's "extensive and extraordinary" cooperation, the court sentenced Nix to consecutive sentences of 24 months on each count, for a total of 48 months. 

Interpreting the government's departure motion as applying to both counts, the court found the plea agreement to be ambiguous so that Nix could not anticipate that his cooperation would only be rewarded with a downward departure motion as to one count only.  (The language of the plea agreement is not quoted in the decision.)  He points out: "The Plea Agreement is, of course, a contractual obligation and the Government is obligated to comply with the terms of that contract. Since the Government is the principal author of the document and has virtually complete control over its content, any confusion or ambiguity must be held against it."

Lawyers: Donald Thompson and Lawrence Kasperek for the defendant; AUSA Robert Marangola