This appeal concerns a sentence imposed in the United States District Court for the Eastern District of New York (Edward R. Korman, Judge). Title 18 U.S.C. § 3553(e) requires a motion by the government before a sentencing court may impose a sentence below the statutory minimum on the basis of a defendant's cooperation with the government. Appellant contends that this provision violates the separation of powers and the due process guarantee. We disagree and affirm.
Newman, Cardamone and Winter, Circuit Judges.
This appeal involves the constitutionality of 18 U.S.C. § 3553(e) (West Supp. 1988), which states that "upon motion of the government" a defendant may be eligible for a sentence below the statutory minimum for providing substantial assistance to the government. Appellant Huerta contends that the provision violates the separation of powers and the due process guarantee. We disagree and affirm.
Huerta was arrested on December 10, 1987 after he had arranged for the sale and delivery of one kilogram of cocaine to a confidential informant of the Drug Enforcement Administration ("DEA"). After Huerta was charged with various drug offenses, the government offered him the opportunity to cooperate in its investigatory efforts. In January 1988, Huerta informed DEA agents that he would arrange a cocaine deal in New York with a Miami cocaine supplier. The DEA agents were busy with other commitments and asked Huerta to postpone the deal. Huerta never advised the agents of another date for the deal but instead waited until after the deal had been completed to contact the DEA. At no time did Huerta reveal to DEA agents the identity or address of a cocaine supplier. DEA agents attempted to meet with Huerta on several occasions, but he failed to show up at the planned meetings.
Huerta thereafter entered into a plea agreement with the government. Because his offense occurred after November 1, 1987, he was sentenced under the Sentencing Reform Act of 1984, 18 U.S.C. § 3551 et seq. (Supp. V 1987) and 28 U.S.C. § 991-998 (Supp. V 1987), including the United States Sentencing Commission Guidelines and Policy Statements (1987) (hereinafter "Sentencing Guidelines"). The penalty for the offense to which Huerta pled guilty included a five-year mandatory minimum sentence, of imprisonment, 21 U.S.C. § 841(b)(1)(B)(ii)(II) (1982 & West Supp. 1988).
At sentencing, Huerta's counsel moved for a downward departure from the statutory minimum on the grounds that appellant had cooperated with the government. In response, the government stated that it did not intend to move for such a departure because it believed that Huerta's purported cooperation fell well below the level of substantial assistance. The district court concluded that, because Section 3553(e) makes a motion by the government a prerequisite to reduction below a statutory minimum in return for cooperation, it lacked authority to impose a sentence below such a minimum. It then sentenced Huerta to the mandatory minimum of five years.
Section 3553(e), entitled "Limited authority to impose a sentence below a statutory minimum," provides:
Upon motion of the Government, the court shall have the authority to impose a sentence below a level established by statute as minimum sentence so as to reflect a defendant's substantial assistance in the investigation or prosecution of another person who has committed an offense. Such sentence shall be imposed in accordance with the guidelines and policy statements issued by the Sentencing Commission pursuant to section 994 of title 28, United States Code.
18 U.S.C. § 3553(e). The relevant policy statement, promulgated by the Sentencing Commission pursuant to 28 U.S.C. § 994, restates the requirement of a motion by the government before a sentencing judge may depart below the statutory minimum:
Upon motion of the government stating that the defendant has made a good faith effort to provide substantial assistance in the investigation or prosecution of another person who has committed an offense, the court may depart from the guidelines.
Policy Statement 5K1.1, United States Sentencing Commission Guidelines Manual. These provisions unambiguously limit the discretion of a judge to impose a sentence below the statutory minimum on grounds of the defendant's cooperation to cases in ...