United States v. Robinson
Court is required to evaluate 18 U.S.C. § 3553(a) factors.
In United States v. Robinson, 741 F.3d 588 (5th Cir. 2014), a defendant received a re-sentencing for a district court’s failure to consider his cooperation under 18 U.S.C. § 3553(a). This case’s reasoning is important not only to the 5K departure that was requested, but also generally to any departure or variance that is requested.
Facts of the Case
This case reads like many other suppression cases-in 2010, investigators determined that there were images of child pornography in a suspect’s possession. The investigators obtained subscriber information and the Internet Protocol “IP” logs and traced them to a particular IP address assigned to the office of Accurate Roofing Company, Inc.
The investigators determined that the owner’s son appeared in one of the images and obtained a search warrant for both Robinson’s residence and his office. Robinson gave a statement initially but stopped when he was asked how pictures of his son ended up on another computer. The next day, after receiving his rights, he gave a full recorded confession.
Suppression and Conditional Plea
Robinson moved to suppress the evidence as well as the statement. He argued that the affidavit “failed to establish a nexus between the place to be searched and the evidence sought.” The district court denied the suppression motions after an evidentiary hearing. Robison obtained a conditional plea agreement and pled guilty to one count of production of child pornography, one count of distribution of child pornography, and one count of possession of child pornography.
Cooperation & Sentencing
Robinson filed a sentencing memorandum which, in relevant part, requested a lower sentence based on his cooperation with investigators in at least two other cases. At sentencing, Robinson urged the Court to consider a reduction under 18 U.S.C. § 3553(a)(2) of his sentence based on cooperation. The district court, however, stated, “it does you no good for the purposes of sentencing in that the Court does not have before it a U.S.S.G. §5K1.1 motion to consider.” The district court further stated that it was a “moot question” whether Robinson would have received a reduction under §5K1.1 because the Government had chosen not to file such a motion. There’s no reason given why they withheld the motion.
As an additional thought, the opinion discusses how Courts need to be specific when making findings. Ask the Court to specify why your client is not getting what you’re advocating for.
Appeal to the 5th Circuit
This case is not about the search and the Court of Appeals made short work of the suppression argument. However, it did provide help in the sentencing realm. The discussion started with outlining that the Court must conduct a two-step process at sentencing – first, calculate the sentence with the “now-advisory Sentencing Guidelines;” secondly, apply an individualized assessment.
Robinson made a winning argument that the Court must consider his cooperation in the individualized examination of his assessment under § 3553(a). The Court of Appeals held that the 5th Circuit was joining its sister circuits in expressly holding that a sentencing court has the power to consider a defendant’s cooperation under § 3553(a), irrespective of whether the Government files a § 5K1.1 motion. We further join our sister circuits in holding that a sentencing court’s failure to recognize its discretion to consider a defendant’s cooperation under § 3553(a)(1) is a significant procedural error.
Non-Harmless Procedural Error
In deciding that the Court committed a procedural error, the most significant point the Court of Appeals addressed was that the trial court appeared to believe its hands were tied and it could not depart.
The § 5K1.1 motion is certainly within the Government’s prerogative to file. They did not in this case. And, so, it’s a moot question as to whether or not you have—would have received a departure from the 720 months had the Government filed that motion. It’s simply not before the Court.
Robinson managed to avoid the dreaded “harmless error”-The Government argued that the error, if any, was harmless. The Court disagreed and discussed its reasoning in United States v. Burns, 526 F.3d 852, 862 (5th Cir. 2008) (holding that defendant was “entitled to have his sentence set by a judge aware of the discretion”) with the current scenario. In Burns, the defendant in a pre- Kimbrough v. United States, 552 U.S. 85, 128 S. Ct. 558, 169 L. Ed. 2d 481 (2007) (crack mandatory and minimums were the only required parts under statute, not the 100:1 disparity) had argued that the Court should grant a departure, but the Court had believed it could not.
However, Burns had an additional quirk where the Court stated that it would have imposed the same sentence if it would have considered the impermissible pre-Kimbrough disparity stating that “the Court [Burns district court] finds it has no—limited discretion, if any. And if I do have discretion, I exercise my discretion not to downward depart on that basis.” The Court of Appeals in that scenario reversed and remanded for another sentencing.
The Court of Appeals in Robinson found that it had even stronger reasons in the instant case, because the Court did not say that it would have given the same sentence if it had considered the assistance in the other two cases by Robinson. Unfortunately for Robinson, it appears from the re-sentencing that the Court did give the same sentence. That sentence was upheld on reasonableness grounds.
Practical Applications
I only knew one defense attorney who never felt the sirens call of the 5K. Unlike her, most of us, especially Criminal Justice Attorneys, will have to deal with cases like Robinson where our client decides to sell his soul and participate in a part of the process that is deeply baked into the federal system. Simply because a court has the discretion does not mean that it will exercise its discretion.
Going forward, what can the practitioner do to ensure that if his client decides to cooperate, that their cooperation has the best chance of being rewarded- either by the United States, which makes the matter straightforward, or by the Court’s 3553(a) analysis?
We need to look back at the pre-Booker case United States v. White, 71 F.3d 920, (DC Cir. 1995). In White, the defendant obtained a plea agreement to a regular (18 U.S.C. 371) conspiracy with a drug basis, but that plea agreement did not have a provision for cooperation. The Court there discussed that there was no “fairness” or “bad faith” review available under the Constitution. This would have been available to him if he had a plea agreement with a cooperation provision. It cited to United States v. Jones, 313 U.S. App. D.C. 128, 58 F.3d 688, 692 (D.C. Cir.) (noting that a plea agreement with substantial assistance provision “provides additional protection” because “like all contracts, it includes an implied obligation of good faith and fair dealing”). This brings us to a practice in the Western District where a defendant many times is faced with a sealed plea addendum in any case where there is a plea agreement. There may be a benefit to the inclusion in that plea agreement of 5K or cooperation language as you may be receiving “additional” protections.
The other issue that was raised by Robinson is why did the Government choose not to file a 5K? The Court “acknowledge[d]” the cooperation, but was it just not complete enough for the Government? White was illustrative on this point as well- it cited to United States v. Drown, 942 F.2d 55, 59 n.7 (1st Cir. 1991), that discussed a temporal limitation on passing the 5K cooperation from sentencing to a post-sentencing Fed. R. Crim. Proc. 35(b) motion. In Drown, the Court recognized a temporal stricture of 5K1.1 and rule 35(b), stating that a prosecutor must make a good faith evaluation of the assistance rendered before sentencing without considering the possibility of a later rule 35(b) motion. The Drown Court stated that failure to do so touches on a criminal defendant’s due process rights, but it unfortunately did not further explain or justify how.
Final Thoughts
- Conditional plea agreements are rare in some jurisdictions, but vital as they are your only way to not waive pre-trial motions if a plea will be entered.
- Consider taking that plea agreement with cooperation language.
- Watch out for AUSAs who want to massage your cooperation past the sentencing date.
