The opinion of the court was delivered by: ROBERT W. SWEET
Defendant Rodger Dale Armstrong, ("Armstrong") pled guilty on June 19, 1991 to one count of conspiracy to transport stolen securities in interstate commerce in violation of 18 U.S.C. § 371, and one count of transportation of stolen securities through interstate commerce in violation of 18 U.S.C. § 2314. On June 11, 1992, Armstrong pled guilty to one count of transportation of stolen checks in violation of 18 U.S.C. § 2314. On January 15, 1993, Armstrong pled guilty to one count of making a false statement in violation of 18 U.S.C. § 1001. For the reasons set forth below, a sentence of 42 months of imprisonment will be imposed, together with a term of three years of supervised release, subject to the hearing now set for January 12, 1994. A fine of $ 5,000.00 will be imposed, and pursuant to 18 U.S.C. § 3013, Armstrong will pay a mandatory assessment of $ 200.00.
This prosecution was founded upon a series of schemes involving the theft of securities and the transport and attempted sale of those securities in interstate and international commerce. After his arrest, Armstrong entered into a cooperation agreement with the Government, pursuant to which he was debriefed regarding his criminal activities and in preparation for his anticipated testimony at the trials of his co-conspirators. In the course of these debriefings, the Government discovered that Armstrong had lied with regard to the manner in which he had obtained an illegally-held passport. This discovery, which formed the basis for his indictment for making false statements in violation of 18 U.S.C. § 1001, also led to the termination of the cooperation agreement. In addition, Armstrong has pled guilty to a one count information filed in the Southern District of Texas which charged him with knowingly transporting through interstate commerce a stolen check in the amount of $ 26,031.99.
In preparing Armstrong's Presentence Report (the "Report"), the United States Probation Department grouped the counts of conspiracy to transport stolen securities, transportation of stolen securities, and transportation of stolen checks pursuant to United States Sentencing Commission Guidelines (the "Guidelines") § 3D1.2(d). Armstrong's false statement charge was applied to the computation of the Probation Department's recommended sentence pursuant to Guidelines § 3D1.2(c).
Armstrong, by letter from his attorney dated December 7, 1993, has raised a number of objections to the Report and has requested downward departures from the applicable Guidelines on a number of grounds. For the following reasons, these requests are denied.
The Report enhanced Armstrong's Offense Level by two levels pursuant to Guidelines § 3C1.1, which provides that "if the defendant willfully obstructed or impeded, or attempted to obstruct or impede, the administration of justice during the investigation, prosecution, or sentencing of the instant offense, increase the offense level by 2 levels." The justification that Armstrong's Report provides for this measure is that "the defendant, while under a cooperative agreement with regard to 90 CR 755(RWS), provided fraudulent statements when questioned as to the acquisition of a passport which he used for travel from the United States to England." Report at P 120.
Armstrong argues that this is not the type of fraudulent statement which merits an enhancement under § 3C1.1. The Guidelines Commentary and Application Notes are authoritative unless the particular commentary or note in question violates the Constitution or a federal statute, or is inconsistent with or is a plainly erroneous reading of, that guideline. Stinson v. United States, 123 L. Ed. 2d 598, 113 S. Ct. 1913, 1915 (1993). Application Note 3 to Guidelines § 3C1.1 provides "a non-exhaustive list of examples of the types of conduct to which this enhancement applies." Included within this list is "any . . . obstructive conduct in respect to the official investigation, prosecution, or sentencing of the instant offense where there is a separate count of conviction for such conduct." The fraudulent statement that Armstrong made regarding the source of his passport is the basis of his being charged of one count of making a false statement in violation of 18 U.S.C. § 1001, to which charge he has pled guilty. The enhancement of Armstrong's Offense Level pursuant to Guidelines § 3C1.1 is therefore appropriate.
Armstrong also objects to the Report's failure to assign a three level reduction for acceptance of responsibility pursuant to Guidelines § 3E1.1. This section provides for a reduction in a defendant's offense level of up to three levels "if the defendant clearly demonstrates acceptance of responsibility for his offense." Application Note 4 to this section provides that "conduct resulting in an enhancement under § 3C1.1 . . . ordinarily indicates that the defendant has not accepted responsibility for his criminal conduct," although it allows that both § 3E1.1 and § 3C1.1 may apply in "extraordinary cases." Armstrong has not argued that this is an "extraordinary case," and there is nothing in the record to indicate that this is such a case. There are no grounds, therefore, for the application of the reductions in offense level permitted by Guidelines § 3E1.1.
Armstrong also argues that the Government exercised bad faith in refusing to move, pursuant to Guidelines § 5K1.1, for a downward departure from the applicable sentencing range on the basis of Armstrong's substantial assistance in the prosecution of this indictment. Guidelines § 5K1.1 provides that "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."
The Second Circuit has held that "absent a specific agreement, the decision by a prosecutor to refuse to recommend a downward departure is generally not subject to judicial review." United States v. Khan, 920 F.2d 1100, 1104 (2d Cir. 1990), cert. denied, 499 U.S. 969, 113 L. Ed. 2d 669, 111 S. Ct. 1606 (1991); see also United States v. Rexach, 896 F.2d 710, 713 (2d Cir.), cert. denied, 498 U.S. 969, 112 L. Ed. 2d 417, 111 S. Ct. 433 (1990); United States v. Huerta, 878 F.2d 89, 94 (2d Cir. 1989), cert. denied, 493 U.S. 1046, 107 L. Ed. 2d 839, 110 S. Ct. 845 (1990). Even where a plea agreement specifically provides for a departure motion, "the prosecutor's discretion is generally the sole determinant of whether the defendant's conduct warrants making the motion." Khan, 920 F.2d at 1104; see also Guidelines § 5K1.1, Application Note 3 ("Substantial weight should be given to the government's evaluation of the extent of the defendant's assistance . . . .").
A prosecutor's decision not to honor a specific agreement to move for a cooperation departure is reviewable only for misconduct or bad faith. United States v. Agu, 949 F.2d 63, 67 (2d Cir. 1991), cert. denied, 119 L. Ed. 2d 205, 112 S. Ct. 2279 (1992). In challenging such a decision by the prosecutor, the defendant must first allege that he or she believes the government is acting in bad faith. Such an allegation requires the government to explain briefly its reasons for refusing to make a downward motion. Following the government's ...