The opinion of the court was delivered by: STANTON
Parallel prosecutions in adjoining federal districts have combined to pose what I believe is a novel question: whether a sentencing judge may depart downward, over the objection of the local United States Attorney, on the basis of a "5K1.1 letter" (motion) in favor of the same defendant but written by a different prosecutor, in a different jurisdiction, but a similar case.
Although at first blush it seems odd, I think the answer is "Yes."
In 1995, Nhat Duc Nguyen was convicted by a jury before me in the Southern District of New York, of offenses involving the kidnapping, transporting, and ransoming of illegal aliens.
After that conviction in this court, Nguyen faced trial on similar* charges in the District of New Jersey. However, before trial began there he entered into a cooperation agreement with the United States Attorney's Office for the District of New Jersey, and pleaded guilty. He cooperated with the New Jersey prosecutor, testified against his former co-defendants in the New Jersey federal trial, and obtained from the prosecuting Assistant United States Attorney a letter-motion addressed to the United States District Court for the District of New Jersey, detailing Nguyen's substantial assistance to that office and justifying a downward departure pursuant to section 5K1.1 of the United States Sentencing Guidelines ("the Guidelines").
No such motion was made for Nguyen in the case before me. After his conviction and while awaiting sentence Nguyen laid his change of heart before the Assistant in the Southern District of New York, but by then he had nothing left to contribute to the case here (which was over, after trial), and the prosecution here understandably declined to move for a downward departure in his sentence here. In fact, it opposes it.
Nevertheless, Nguyen argues that his substantial assistance in the New Jersey case, in which he has not yet been sentenced, and the "5K1.1 letter" he earned there gives me authority to depart downward in sentencing him, even over the opposition of the United States Attorney's office here. He points to a clause in the New Jersey 5K1.1 letter which provides that it may be brought to the attention of other prosecuting offices.
My approach must be practical rather than formalistic, because the ruling determines the number of years the defendant must serve in prison.
Thus it appears likely and appropriate that the New Jersey sentence will run concurrently with the sentence I impose, in light of the policy statement in section 5G1.3 of the Sentencing Guidelines. When the New Jersey federal court sentences Nguyen, he will be serving the sentence I impose, and thus the applicable subdivision will be 5G1.3(c), which provides:
"(Policy statement) In any other case, the sentence for the instant [New Jersey] offense may be imposed to run concurrently, partially concurrently, or consecutively to the prior [New York] undischarged term of imprisonment to achieve a reasonable punishment for the instant [New Jersey] offense."
The critical point is that the New Jersey federal court cannot reduce the sentence I impose. If I impose a sentence within the 188-235 month Guideline range, disregarding the 5K1.1 motion as not being before me, the New Jersey court may impose a concurrent sentence, or add to my sentence if it is thought too low to reflect proper additional punishment for the New Jersey offenses, but it cannot reduce my sentence. The 5K1.1 motion in the New Jersey court will have become, in practical effect, a nullity: whatever its merits, Nguyen will have to serve a sentence in the 188-235 month range, just as ...