United States v. Timewell ( 2009 )

No. 07-4587-cr
United States v. Timewell
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
August Term 2008
Docket No. 07-4587-cr
Argued: November 18, 2008 Decided: June 1, 2009
UNITED STATES OF AMERICA,
Appellee,
v.
STEPHEN ANTHONY MARC JOHNSON, PATRICK BOWLER,
Defendants,
GREGORY PAUL TIMEWELL,
Defendant-Appellant.
Before: MINER, RAGGI, and LIVINGSTON, Circuit Judges.
Appeal from an order entered in the United States District
Court for the Eastern District of New York (Platt, J.) denying
the application of defendant-appellant to be resentenced
following a remand for further proceedings in conformity with
United States v. Crosby, 397 F.3d 103 (2d Cir. 2005), the
district court having taken into account, inter alia, the
government’s deviation from a customary practice of rescinding
cooperation agreements breached by defendants.
Order vacated and case remanded with instructions.
Burton T. Ryan Jr., Assistant
United States Attorney (Benton J.
Campbell, United States Attorney
for the Eastern District of New
York, Peter A. Norling, Assistant
United States Attorney, on the
brief), Brooklyn, New York, for
Appellee.
Ivan S. Fisher, New York, New York,
for Defendant-Appellant.
1
MINER, Circuit Judge:
Defendant-appellant Gregory Timewell appeals from a
Memorandum and Order entered on October 4, 2007, in the United
States District Court for the Eastern District of New York
(Platt, J.) denying his application to be resentenced following a
remand for further proceedings in conformity with United States
v. Crosby, 397 F.3d 103 (2d Cir. 2005). United States v.
Timewell, 124 F. App’x 55 (2d Cir. 2005). Timewell was
convicted, upon a guilty plea, of conspiracy to import 1,000
kilograms or more of hashish and marijuana, in violation of 21
U.S.C. §§ 960(a)(1), (b)(1)(G), 963, and of making false
statements to federal agents in violation of 18 U.S.C. § 1001.
On March 5, 2004, he was sentenced principally to a prison term
of 275 months and a 5-year term of supervised release. In the
Memorandum and Order determining that it would adhere to the
sentence originally imposed, the District Court took into
account, inter alia, the government’s customary practice of
rescinding cooperation agreements breached by defendants. For
the reasons that follow, we vacate the sentence and once more
remand for further proceedings.
BACKGROUND
I. Of the Events Leading to the Guilty Plea
Timewell, a native of New Zealand, was engaged as an
international distributor and smuggler of drugs over a period of
many years. He began his career as a local distributor of
marijuana in Australia and New Zealand and expanded his interests
2
to become a financier and organizer of worldwide smuggling
operations. His successful efforts in distributing tons of
hashish and marijuana in the United States and elsewhere enabled
him to accumulate millions of dollars in personal assets.
The specific enterprise giving rise to the prosecution
leading to this appeal was an undertaking by Timewell, along with
co-defendants Patrick Bowler and Stephen Johnson, to smuggle 25
tons of hashish through New York for distribution in Upstate New
York and Canada. Efforts to accomplish this goal occurred
between 1993 and 1995, but the goal never was realized. The
enterprise was infiltrated by undercover agents of the Drug
Enforcement Administration (“DEA”). One undercover agent was
recruited as a ship’s captain to off-load the hashish from a
“mother ship” in the Mid-Atlantic and to smuggle the drugs into
Long Island, New York. The agent was to be paid $75,000 to cover
his expenses for the trans-shipping, arrangements for payment
having been made by Timewell through co-conspirator Johnson.
Before the offloading could take place, the “mother ship,”
sailing from Pakistan under the direction of co-conspirator
Bowler, sustained mechanical failure. The ship was rerouted, and
its load of drugs ultimately was smuggled into Portugal and
Ireland. Timewell and Johnson were arrested in Canada in 1995.
Timewell subsequently waived extradition to the United States.
Timewell was indicted in the Eastern District of New York
for operating a continuing criminal enterprise, conspiracy to
import 1,000 kilograms or more of hashish and marijuana into the
3
United States and conspiracy to distribute 1,000 kilograms or
more of hashish and marijuana. The indictment included a demand
for forfeiture of “[o]ne [h]undred [m]illion [d]ollars
($100,000,000) in United States currency and property
constituting the proceeds of and derived from, directly and
indirectly, the foregoing offenses.” Timewell early on
manifested a desire to cooperate with the government. Upon his
arrival in the United States, he was extensively debriefed by
agents of the DEA as well as officials of foreign governments.
He provided information to them about his own criminal conduct
and assets and shared with them his knowledge regarding the
activities of the co-conspirators with whom he associated in the
United States and throughout the world.
In a Cooperation Agreement dated February 5, 1998, Timewell
agreed, inter alia, to plead guilty to conspiracy to import
hashish into the United States and further agreed to provide
truthful, complete, and accurate information to the Office of the
United States Attorney for the Eastern District of New York.
Timewell also agreed to testify at any proceedings, regardless of
location, when requested to do so by the Office and to make full
and complete financial disclosure. The Agreement identified
numerous assets belonging to Timewell, consisting of bank
accounts as well as real estate and currency in various countries
throughout the world, all of which he agreed to forfeit to the
government. For its part, the government agreed, inter alia, to
“file a motion pursuant to Guidelines Manual § 5K1.1 and 18
4
U.S.C. § 3553(e) with the sentencing [c]ourt setting forth the
nature and extent of [Timewell’s] cooperation,” thereby enabling
the court to impose a sentence below the Guidelines range and
below any applicable mandatory sentence, and “not [to] oppose a
downward adjustment of three levels for acceptance of
responsibility under Guidelines Manual § 3E1.1.” The Agreement
provided that, as determined by the United States Attorney’s
Office, if Timewell “intentionally violated any provision of
th[e] agreement, [he would] not be released from his plea of
guilty but th[e] Office [would] be released from its obligation .
. . (a) not to oppose a downward adjustment of three levels for
acceptance of responsibility . . ., and (b) to file the motion
described” relating to the nature and extent of Timewell’s
cooperation. Timewell pleaded guilty to the conspiracy charge on
February 5, 1998.
Timewell entered into a Supplemental Plea Agreement with the
United States Attorney dated March 1, 2001, in which he agreed to
waive indictment and plead guilty to a superseding information
charging him with making a false statement to federal officers in
violation of 18 U.S.C. § 1001. This charge was occasioned by the
discovery that Timewell had misled agents regarding more than
$4.8 million in Swiss francs that he had concealed in
Switzerland. The discovery came about through continuing
investigations relating to the arrests of Timewell’s co-
conspirators, including Bowler, who was arrested in Switzerland.
Confronted with his failure to reveal these drug proceeds,
5
Timewell arranged through his counsel to surrender to the
government $2,089,000 in Swiss francs, that amount being the
remainder of the proceeds. Timewell’s story was that he
originally believed that the funds in question had been removed
by Bowler or those acting for Bowler. He later learned that Jim
Wilson, a Canadian friend, had obtained the money and was sending
monthly payments to Timewell’s family. Timewell failed to notify
the government of these developments and thereby violated the
terms of his Cooperation Agreement. It is not contested by the
government that Timewell otherwise provided extensive and
substantial assistance to the government in identifying and
describing the international narcotics operation of numerous
individuals, including Bowler, Thomas Sherrett, and Michael
Vondette, Timewell having testified as a witness at the trial of
Vondette. See United States v. Vondette, 248 F. Supp. 2d 149,
164 (E.D.N.Y. 2001).
II. Of the Sentencing
The pre-sentence report recommended a total offense level of
41. Starting with the base level of 38, predicated upon 120,975
kilograms of marijuana, see U.S.S.G. § 2D1.1(a)(3), four levels
were added for leadership role, see U.S.S.G. § 3B1.1(a), and two
levels were added for obstruction of justice in the concealment
of assets, see U.S.S.G. § 3C1.1. From the 44 levels thus arrived
at was subtracted 3 levels for acceptance of responsibility, see
U.S.S.G. § 3E1.1, with level 41 as the final result. Applying
Criminal History Category I as recommended, the Guidelines
6
Sentencing range was 324-405 months of incarceration. Prior to
sentencing, the government submitted pursuant to U.S.S.G. § 5K1.1
a letter dated March 4, 2004, setting forth the basis for its
recommendation that “the Court grant a significant downward
departure in formulating Timewell’s sentence.” The letter,
signed by an Assistant United States Attorney for the Eastern
District of New York, described in detail Timewell’s extensive
cooperation with the authorities and noted that the information
provided “was detailed, corroborated and consistently aided the
agents in developing their investigation.” According to the
letter, Timewell’s substantial assistance “resulted in the arrest
and conviction of major drug violators and the seizure of
millions of dollars in drug proceeds.”
Timewell was sentenced on March 5, 2004. During the
sentencing proceeding, Timewell’s counsel, urging a substantial
Guidelines reduction, recounted at length Timewell’s extensive
cooperation, assistance to various law enforcement authorities,
and testimony provided at the trial of Vondette. Before imposing
sentence, the court noted that Timewell had not fully cooperated
and therefore was in violation of the Cooperation Agreement.
Counsel for Timewell pointed out that the pre-sentence
calculation accounted for that by including a two-level upward
adjustment for obstruction of justice. The court responded:
I saw that. But it doesn’t affect the
[G]uidelines as such, the [G]uideline computation.
As I said in 99 percent of the cases where this
happens the government says you don’t get any
cooperation letter by breaching your opportunity to
7
cooperate fully. And that’s a fact I had to take into
consideration in this case with respect to other
features.
The court then observed that, according to the pre-sentence
report,
information received from the government indicates that
between January 1993 and May 1995 Timewell and others
conspired to import and distribute 22,000 kilograms of
hashish into the United States via Pakistan. This has
been going on for many, many years.
. . . .
The volume is staggering of what [Timewell] did.
It’s mind boggling, with the exception of Vondette. It
is one of the biggest I have ever come across in my 30
years here.
The court further observed:
The money involved in addition to the drug
quantities [is] mind boggling. It is to me, maybe not
to other people: But it is an enormous amount of money
involved.
Were it not for the government’s letter I would
have had no hesitancy in imposing 405 months, the upper
end of the [G]uidelines and departing upward.
. . . .
So I will depart down effectively from the 405
months, and that’s to the minimum of 275 months.
The court also imposed a term of imprisonment of 60 months on the
false statement count, to be served concurrently. A timely
appeal followed.
III. Of the Initial Appeal
On his initial appeal, Timewell
assert[ed] that (1) his sentence [was] unconstitutional
because it [was] premised on facts not proved beyond a
reasonable doubt to the jury as required by the Sixth
Amendment, see Blakely v. Washington, 542 U.S. 296(2004); and (2) the district court erred in granting a
8
§ 5K1.1 departure from the guidelines because (a) it
mistakenly thought defendant’s guidelines were not
affected by his § 1001 conviction, and (b) it was
improperly influenced by the United States Attorney’s
Office’s policy of not making specific sentencing
recommendations in connection with its § 5K1.1 motions.
United States v. Timewell, 124 F. App’x 55, 56 (2d Cir. 2005).
We rejected these arguments, holding that downward departure from
the Sentencing Guidelines generally is not reviewable on appeal,
id.; that even if the District Court erred in misapprehending the
effect of the § 1001 conviction on the Guidelines calculations (a
fact of which we were not convinced), it was not mistaken that
the false statements had obstructed justice and therefore
properly considered that fact in determining the extent of
departure, id. at 57; and that there was no abdication of
judicial responsibility, since the District Court carefully
considered the parties’ submissions as well as the facts outlined
in the pre-sentence report, id. As to Timewell’s claim that the
Guidelines-determined sentence was imposed in violation of his
Sixth Amendment rights, we made the following determination: “In
light of the Supreme Court’s decision in United States v. Booker,
543 U.S. 220 (2005), and this court’s decision in United States
v. Crosby, 397 F.3d 103 (2d Cir. 2005), this case is remanded to
the district court for further proceedings in conformity with
Crosby.” Id. at 57-58.
IV. Of the Proceedings on the Crosby Remand
Seeking on remand “a post-Booker sentence significantly
lower than the 275-month term of imprisonment handed down on
9
March 5, 2004,” Timewell’s attorney submitted to the court a
letter dated July 11, 2005, arguing that Timewell’s original
sentence was “keyed to the mandatory Guidelines then in place”
and urging a sentence taking into account “the factors . . . set
out in 18 U.S.C. § 3553(a).” In the letter, Counsel recounted
the extensive cooperation provided by his client to the
authorities and again explained Timewell’s failure to disclose
his knowledge of the transfer of the $5 million Swiss bank
account. Counsel took special note of the sentence imposed upon
co-conspirator Sherrett, whose original sentence of 188 months
(which took into account a three-level downward departure for
assisting a prison guard attacked by inmates) was reduced to 120
months for cooperation, which included testimony at the trials of
Vondette. Counsel’s letter concluded as follows:
I urge Your Honor to reflect carefully about an error
you may have made with regard to the Guidelines
computation relating to the 18 U.S.C. § 1001 conduct,
to consider the 10-year sentence you imposed on co-
defendant Thomas Sherrett, and to consider the
government’s functional equivalent of its highest
recommendation of Timewell as the best of 146
cooperators in this case.
The government’s submission on remand consisted of a letter
dated July 7, 2005, signed by Assistant United States Attorney
Burton T. Ryan Jr. The letter included a brief review of the
history of the case and a description of the purpose of a Crosby
remand as well as the procedure to be followed on such a remand.
Noting that the government’s 5K1.1 letter enabled the court to
depart from the Guidelines and impose a sentence of 275 months,
10
the letter concluded as follows:
[O]nly the Court can determine to what extent the then
mandatory nature of the Guidelines [a]ffected the
sentence the Court imposed. The question of whether
the sentence would have . . . been materially different
if the guidelines were only advisory, we leave . . . to
the Court’s discretion.
An additional submission came in the form of a letter dated
July 1, 2005, from David S. Katz, President and CEO of Global
Security Group, Inc. Katz was a former Special Agent of the Drug
Enforcement Administration and was the Agent charged with
debriefing Timewell. In his 8-page letter to the court, Katz
detailed the extensive information he gleaned from Timewell’s
cooperation during the period 1996-1998. According to Katz, the
overwhelming majority of information provided by Timewell was
previously unknown to the government and would never have been
known without Timewell’s cooperation. Katz characterized
Timewell as “an extremely valuable source of information that
furthered the investigation [he] had been conducting.” Katz
noted that the international drug trafficking information
provided not only furthered his own investigation but “was also
provided to the law enforcement authorities of Canada,
Switzerland, Australia, Thailand, Belgium, Pakistan, Singapore,
Spain, Portugal, the Netherlands, Ireland and the United
Kingdom.”
In a letter submission dated September 10, 2007, counsel for
Timewell noted that Timewell’s cooperation was much more
extensive than that of Sherrett. Counsel also noted that
11
Assistant United States Attorney Ryan had commented as follows in
comparing the sentences of Timewell and Sherrett: “While their
roles were similar, the amounts of the drugs Mr. [Sherrett] was
held accountable for were much less.” (alteration in original;
emphasis omitted).
The proceedings on remand concluded with extensive arguments
by counsel and colloquies with the court on September 20, 2007.
Counsel for Timewell argued that co-conspirators more culpable
than Timewell received more lenient sentences, with special
references to co-conspirators Sherrett and Johnson. Although
Johnson was sentenced after this Court ordered Timewell’s Crosby
remand, the government had consented to an adjournment of
Timewell’s Crosby hearing to permit consideration of Johnson’s
sentence, which was to a term of incarceration of fifteen years
(180 months).
At the hearing, Assistant United States Attorney Kelly
advised the court that Timewell may have been put in a situation
worse than Johnson because of his extensive disclosures. He
noted that dealing with Johnson’s proffers was like “pulling
teeth” and that Johnson was in no way as forthcoming as Timewell.
Johnson did not receive a letter recommending consideration for
his cooperation. Kelly referred to the “good faith” of Timewell
and made this statement: “And so we ask the [c]ourt to give
serious consideration and weight to the argument that there
should not be a significant disparity between Mr. Johnston [sic]
and Mr. Timewell.”
12
Despite the urging of the government, the District Court was
concerned that Timewell failed to disclose the account in
Switzerland and therefore, in accordance with past practices in
the United States Attorney’s Office, should not have had the
benefit of the cooperation letter supplied by the government:
Well, mainly my understanding of . . . this case,
probably, and the principle that the U.S. Attorney’s
Office in this district — which is unique as far as any
district is concerned in this country as far as I can
determine — if you didn’t cooperate properly, and you
violated your agreement with the government and didn’t
give full and accurate descriptions of everything, you
lose all your benefits. Not just a partial, or not
just some of it, but all benefits in the cooperation
letter.
Now, when you hide 2 and-a-half million dollars in
drug money in Switzerland, and it comes out through
other sources than the defendant — what happened to
that rule?
Assistant United States Attorney Kelly, to whom the court’s
remarks were addressed, responded that his Office decided “to
continue with the cooperation and penalize him by having him
plead to the false statement charge.” Mr. Kelly went on to
emphasize the importance of Timewell’s cooperation and the
resultant benefit to the government, specifically pointing out
the disparity in sentences between Timewell and Johnson and the
failure of Johnson, who did not receive a 5K1.1 letter, to make
full disclosure. The court persisted in expressing its concern:
[I]n several prior cases, the moment a defendant has
told the government a material falsehood, the
[G]uidelines go like hard rock rules in those days.
And there was no such thing as a reduction once he has
taken that position. And I think there was a universal
rule. I know it happened many times in this court.
Timewell’s counsel then stated that in his experience
13
“[t]here is no rule” that requires the government to “shred a
cooperation agreement” for failure to disclose assets. The court
responded: “There is no rule. But it has been invoked in this
[c]ourt more times than you can imagine.” In a later colloquy
with Timewell’s counsel in which counsel argued that the court
had erroneously referred to the government’s customary practice
as a rule, the court responded: “[T]hey said to me it was a
rule. And they have been representing that to me for years. . .
. Not my rule. I certainly don’t make up the rules.”
The District Court also discussed with the government the
sentencing range that would have applied to Timewell absent the
submission of a 5K1.1 letter. Mr. Kelly indicated that Timewell
“was at [an offense level of] 45 at one point,” which carried a
minimum sentence of life imprisonment. The District Court
appeared to accept this summary of the applicable Guidelines
calculation, suggesting that Timewell had benefitted
substantially from his cooperation since he received a sentence
of only 275 months. In fact, however, and as previously noted,
Timewell’s actual Guidelines sentencing range was 324 to 405
months, not life imprisonment as represented by the government.
V. Of the Decision on Remand
By Memorandum and Order entered on October 4, 2007, the
District Court issued its decision on remand. Classifying the
matter before it as a motion to reconsider its 275-month
sentence, the court noted that counsel had advanced a claim of
unwarranted disparities. According to the District Court,
14
Timewell’s counsel put forth the names of four defendants for
comparison as similarly situated to Timewell: Michael Vondette,
Mark Johnson, Patrick Bowler and Thomas Sherrett. The court
reviewed the sentences imposed upon these co-defendants and the
quantities of marijuana for which they were held responsible and
found that Timewell was in a position different from the others:
The major factor in the difference between
Timewell and three other defendants — Johnson, Bowler
and Sherrett — was and is the fact that Timewell
violated his plea agreement with the government by
failing to reveal five million dollars ($5,000,000) in
drug proceeds that he had concealed in Europe. When
confronted with this fact, he revealed only $2,890,000
[sic], i.e., leaving about $2,000,000 for which there
has been no account.
In view of the foregoing facts, the court justified its
disparate treatment of Timewell as follows:
In innumerable cases (notwithstanding counsel for
Timewell’s claim to the contrary) that have come before
this [c]ourt, the Government has advised that when a
defendant violates his plea agreement with the
Government, the agreement is voided. This Court took
that into account in substantially increasing
Timewell’s sentence from what it otherwise would have
been.
(emphasis supplied). Accordingly, the court denied Timewell’s
motion and this appeal followed. On appeal, Timewell argues that
the District Court decision was procedurally as well as
substantively unreasonable. He also requests that any remand of
his case be to a different judge for sentencing.
ANALYSIS
A. Of the District Court’s Mandate on Remand
Following the Supreme Court’s determination in United States
v. Booker, 543 U.S. 220 (2005), that the Sentencing Guidelines
15
were to be considered advisory and not mandatory, this Court
formulated the rule in Crosby for plain error review of pre-
Booker sentences. See United States v. Garcia, 413 F.3d 201,
224–26 (2d Cir. 2005) (discussing rationale and procedure for
Crosby remand). Concluding that such a review requires a
resolution of the issue of whether the sentence originally
imposed is materially different from the sentence that would have
been imposed under the Booker regime, we formulated the protocol
now known as the Crosby remand to enable the District Court to
decide the issue in the first instance. On such remand, District
Judges are to re-examine sentences in light of the following:
[A]ny of the errors in the procedure for selecting the
original sentence . . . would be harmless, and not
prejudicial under plain error analysis, if the judge
decides on remand, in full compliance with now
applicable requirements, that under the post-
Booker/Fanfan regime the sentence would have been
essentially the same as originally imposed.
Conversely, a district judge’s decision that the
original sentence would have differed in a nontrivial
manner from that imposed will demonstrate that the
error in imposing the original sentence was harmful and
satisfies plain error analysis.
Crosby, 397 F.3d at 118.
Accordingly, the question to be resolved by the District
Court is “whether the challenged sentence is materially different
from the one that the district court would have imposed with a
correct understanding of federal sentencing law as now explained
by the Supreme Court.” Garcia, 413 F.3d at 224. If the District
Court decides not to resentence, it should explain that decision
on the record; if it decides that the sentence should be vacated,
it must resentence in accordance with Booker, with an
16
explanation. Crosby, 397 F.3d at 120. The explanation referred
to in Crosby is required by 18 U.S.C. § 3553(c), which provides
in part that “[t]he court, at the time of sentencing, shall state
in open court the reasons for its imposition of the particular
sentence.”
To sentence in compliance with Booker, the court is
constrained to consider the sentencing factors set out in 18
U.S.C. § 3553(a):
(1) the nature and circumstances of the offense and the
history and characteristics of the defendant;
(2) the need for the sentence imposed —
(A) to reflect the seriousness of the offense, to
promote respect for the law, and to provide just
punishment for the offense;
(B) to afford adequate deterrence to criminal
conduct;
(C) to protect the public from further crimes of
the defendant; and
(D) to provide the defendant with needed
educational or vocational training, medical care,
or other correctional treatment in the most
effective manner;
(3) the kinds of sentences available;
(4) the kinds of sentence and the sentencing range
established for —
(A) the applicable category of offense committed
by the applicable category of defendant as set
forth in the guidelines . . . issued by the
Sentencing Commission pursuant to [28 U.S.C. §
994(a)(1)] . . .
. . . .
(5) any pertinent policy statement — (A) issued by the
Sentencing Commission pursuant to [28 U.S.C. §
994(a)(2)] . . .;
17
(6) the need to avoid unwarranted sentence disparities
among defendants with similar records who have been
found guilty of similar conduct; and
(7) the need to provide restitution to any victims of
the offense.
However, all sentencing proceedings must commence with the
District Court’s calculation of the applicable Guidelines range,
with the Guidelines as “the starting point and the initial
benchmark.” Gall v. United States, 128 S. Ct. 586, 596 (2007).
The court must then consider all the § 3553(a) factors and then
undertake “an individualized assessment based on the facts
presented.” Id. at 597. If a non-Guidelines sentence is
indicated, the court “must consider the extent of the deviation
[from the Guidelines] and ensure that the justification is
sufficiently compelling to support the degree of the variance.”
Id. Finally, “[a]fter settling on the appropriate sentence, [the
District Court] must adequately explain the chosen sentence to
allow for meaningful appellate review and to promote the
perception of fair sentencing.” Id. (citation omitted).
B. Of the Standards of Review
Following Booker, we are constrained to review sentences for
reasonableness. See Booker, 543 U.S. at 260–61; see also United
States v. Fernandez, 443 F.3d 19, 26–27 (2006). Reasonableness
review requires an examination of the length of the sentence
(substantive reasonableness) as well as the procedure employed in
arriving at the sentence (procedural reasonableness). See United
States v. Canova, 485 F.3d 674, 679 (2d Cir. 2007). In our
review of district court sentences, we are required to apply a
18
“deferential abuse-of-discretion standard.” Gall, 128 S. Ct. at
591. We recently stated that “[a]s to substance, we will not
substitute our own judgment for the district court’s on the
question of what is sufficient to meet the § 3553(a)
considerations in any particular case” and that the substantive
determination of a District Court will be set aside only in those
special cases where the range of permissible decisions does not
encompass the District Court’s determination. See United States
v. Cavera, 550 F.3d 180, 189 (2d Cir. 2008) (en banc).
Accordingly, “when conducting substantive review, we take into
account the totality of the circumstances, giving due deference
to the sentencing judge’s exercise of discretion, and bearing in
mind the institutional advantages of district courts.” Id. at
190.
However, the deference due the district court in sentencing
requires that we first be satisfied that the procedural
requirements for sentencing have been satisfied. Id. at 189.
Procedural error occurs when the district court (1) fails to
calculate the Guidelines range; (2) is mistaken in the Guidelines
calculation; (3) treats the Guidelines as mandatory; (4) does not
give proper consideration to the § 3553(a) factors; (5) makes
clearly erroneous factual findings; (6) does not adequately
explain the sentence imposed; or (7) deviates from the Guidelines
range without explanation. Id. at 190. We have noted that a
sentence is procedurally unreasonable if a district court
“committed an error of law in the course of exercising
19
discretion,” Crosby, 397 F.3d at 114 (emphasis supplied), erred
“in determining the applicable Guideline range or the
availability of departure authority,” United States v.
Selioutsky, 409 F.3d 114, 118 (2d Cir. 2005) (emphasis supplied),
or misapprehended its ability to impose a non-Guidelines
sentence, see United States v. Sanchez, 517 F.3d 651, 661-62 (2d
Cir. 2008). Our identification of significant procedural error
may be a cause for remanding to the district court for
explanation or correction. Cavera, 550 F.3d at 190.
We undertake a reasonableness review “even after a District
Court declines to resentence pursuant to Crosby.” United States
v. Williams, 475 F.3d 468, 474 (2d Cir. 2007). Such a review is
precluded, however, where (1) the court determines that the
discharge of its obligations under post-Booker procedures,
treating the Guidelines as advisory only, would not result in a
sentence materially different from the sentence imposed under the
mandatory Guidelines procedure; or (2) the law of the case
doctrine applies to bar challenges to sentencing rulings that
were, or could have been, adjudicated in the initial appeal. Id.
at 475. “The law of the case doctrine will not, however, bar a
defendant who is not resentenced after a Crosby remand from
challenging the procedures used by the district court during the
Crosby remand,” and one not resentenced may therefore
“challeng[e] the manner in which the district court conducted the
Crosby remand.” Id. at 476.
C. Of the District Court’s Procedural Errors
20
On a Crosby remand, the district court must determine
whether its sentence under the Booker regime would have been
materially different from the sentence originally imposed; if the
answer is “yes,” nothing further is required; if the answer is
“no,” there must be a resentencing. See United States v.
Ferrell, 485 F.3d 687, 688-89 (2d Cir. 2007). The District Court
here did not respond directly to the required inquiry. Indeed,
the court and counsel immediately began to discuss whether a more
lenient sentence should be imposed in light of the sentencing
disparities identified by counsel. This was procedural error
because “[o]nly if the district court answers the threshold
[Crosby] determination in the affirmative does a resentencing
occur.” Id.We are unable to conclude that the District Court’s Crosby
error was harmless. See United States v. Williams, 524 F.3d 209,
214 (2d Cir. 2008) (recognizing that procedural error at
sentencing can be reviewed for harmlessness). First, the
District Court adhered to its original sentence after it “took
. . . into account” what the court perceived to be the
government’s customary practice of voiding plea agreements where
a defendant violates the terms of the agreement. That such a
customary practice exists is unsupported by the record before the
District Court. See Cavera, 550 F.3d at 190 (noting that a
district court commits procedural error when it “rests its
sentence on a clearly erroneous finding of fact”).
Second, although a district court alone may determine what
21
effect to give to a 5K1.1 letter, in so doing may consider the
extent of downward departures or variances received by other
similarly situated defendants who have cooperated, and may even
decline a reduction from the Guidelines altogether, the court
here erred in the course of exercising its discretion by (1)
“substantially increasing Timewell’s sentence from what it
otherwise would have been” and (2) giving as a reason for the
increase the government’s failure to comply with the purported
customary prosecutorial practice of voiding cooperation
agreements upon breach by the defendant. The 5K1.1 letter, which
the government saw fit not to revoke in Timewell’s case despite
his breach of the cooperation agreement, allows a downward
departure from the Sentencing Guidelines in cases where a
defendant provides substantial assistance to the government.
Whether such a letter is merited is confided to the sole
determination of the government, subject only to constitutional
limitations. See Wade v. United States, 504 U.S. 181, 185–86
(1992). That the government usually voids cooperation agreements
upon a breach by the defendant should not be reason to constrain
a district court from giving proper effect to a 5K1.1 letter if
the government decides to submit a 5K1.1 letter notwithstanding
the defendant’s breach of the cooperation agreement.
In addition, the government indicated, and the District
Court appeared to accept, that, absent a downward departure for
substantial cooperation, the Guidelines would have recommended
that Timewell serve a life sentence. As previously discussed,
22
however, the pre-sentence report, to which the District Court
adhered when calculating the Guidelines recommendation at
Timewell’s initial sentencing, established a total offense level
of 41 carrying a sentencing range of only 324 to 405 months. The
description of the sentencing range to which Timewell would have
been subject absent his substantial cooperation therefore
substantially overstated Timewell’s actual Guidelines range. See
Cavera, 550 F.3d at 190 (indicating that a District Court errs
when it “makes a mistake in its Guidelines calculation”).
Because we cannot determine the extent to which these errors
affected the District Court’s analysis, we are unable to discern
how the District Court would have answered the threshold Crosby
question in the absence of these errors. See Crosby, 397 F.3d at
115 (noting that procedural error is “cause for concern because,
in many cases, it will be impossible to tell whether the judge
would have imposed the same sentence had the judge not felt
compelled to impose a Guidelines sentence”).
The District Court also erred in its written opinion by
mischaracterizing the unwarranted disparities argument made by
defense counsel. The District Court wrote that counsel for
Timewell argued that Timewell received a disparate sentence as
compared to Michael Vondette, Stephen Johnson, Patrick Bowler,
and Thomas Sherrett. However, Timewell’s application listed only
Sherrett and Johnson as comparators. Indeed, a determination of
whether to be resentenced on a Crosby remand must be based only
on the circumstances existing at the time of the original
23
sentence. See Ferrell, 485 F.3d at 688; Crosby, 397 F.3d at 118,
n.19. Under this rule, the court could not, in the course of its
threshold Crosby analysis, consider the sentence of Bowler or
Johnson, both of which were imposed after Timewell’s original
sentence was pronounced. Notably, the District Court also erred
in stating that Johnson “testified against Vondette in this
Court.”
Accordingly, we find that the District Court erred in
neglecting to answer the question posed by the Crosby remand of
Timewell’s original sentence, namely, whether, based on the
circumstances at the time of the original sentence, the District
Court would have imposed a materially different sentence under
the post-Booker sentencing regime, and that this error was not
harmless. See Crosby, 397 F.3d at 118. The law of the case does
not bar Timewell from challenging the manner in which the Crosby
remand was conducted despite the Court’s adherence to the
original sentence. We are therefore constrained to remand the
case once more to enable the District Court to formulate a proper
response to the Crosby inquiry. The District Court should state
the reasons for the response without consideration of past
practices of the government in regard to the rescission of
cooperation agreements. Such consideration was error. Should
the court determine to revisit its original sentence, we ask it
to consider: (1) that a district court may — but is not required
to — consider sentencing disparity among co-defendants under 18
U.S.C § 3553(a)(6); United States v. Frias, 521 F.3d 229, 236 n.8
24
(2d Cir. 2008); (2) that the United States Attorney’s Office
recommended a “substantial” departure from the Guidelines
sentence in view of Timewell’s excellent cooperation and asserted
that a significant disparity in the sentences imposed upon
Timewell, Johnson and Sherrett was not warranted; (3) that the
appropriateness of any reduction of sentence below the Guidelines
should be governed by the provisions set out in U.S.S.G. § 5K1.1:
(a) The appropriate reduction shall be determined by
the court for reasons stated that may include, but are
not limited to, consideration of the following:
(1) the court’s evaluation of the significance
and usefulness of the defendant’s assistance,
taking into consideration the government’s
evaluation of the assistance rendered;
(2) the truthfulness, completeness, and
reliability of any information or testimony
provided by the defendant;
(3) the nature and extent of the defendant’s
assistance;
(4) any injury suffered, or any danger or risk of
injury to the defendant or his family
resulting from his assistance;
(5) the timeliness of the defendant’s assistance.
In the absence of a showing of any unfairness or the
appearance of any unfairness on the part of the District Judge,
we reject Timewell’s claim that the case should be reassigned to
another judge on remand. See United States v. Bradley, 812 F.2d
774, 782 n.9 (2d Cir. 1987).
CONCLUSION
This case is remanded to the District Court for further
proceedings consistent with the foregoing.
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