United States v. Villar , 67 F. App'x 103 ( 2003 )

Opinions of the United
2003 Decisions States Court of Appeals
for the Third Circuit
5-14-2003
USA v. Villar
Precedential or Non-Precedential: Non-Precedential
Docket 02-2946
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Recommended Citation
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 02-2946
UNITED STATES OF AMERICA
v.
RICARDO VILLAR,
a/k/a RICHARD AGOSTO,
a/k/a ROBERTO VILLAR,
a/k/a EDWARD DELGADO,
a/k/a MR. LOPEZ,
a/k/a JOSE LUIS
Ricardo Villar,
Appellant
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
D.C. Criminal No. 00-cr-00465-1
(Honorable Marvin Katz)
Submitted Pursuant to Third Circuit LAR 34.1(a)
April 22, 2003
Before: SCIRICA, Chief Judge*, AMBRO and W EIS, Circuit Judges
(Filed: May 14, 2003)
*Judge Scirica began his term as Chief Judge on May 4, 2003.
OPINION OF THE COURT
SCIRICA, Chief Judge.
In this sentencing appeal, Ricardo Villar contends the District Court erroneously
declined to grant him a downward departure for cooperation with state authorities, even in
the absence of a government motion. We will affirm.
I.
Villar was arrested on August 25, 1998, by Philadelphia Police Officers for
possession of crack, heroin, cocaine, and drug paraphernalia. Following his arrest, Villar
agreed to cooperate with state authorities. The federal government took over the state
prosecution of Villar. Villar agreed to cooperate with the federal law enforcement
officers and was charged by information. But, on October 13, 2000, the day he was
scheduled to plead guilty to the federal charges, Villar fled. On September 6, 2001, he
was rearrested and found in possession of large amounts of crack, cocaine, and tools used
in the manufacture and distribution of crack. Villar pleaded guilty to a superseding
indictment charging him with the crimes he committed on August 25, 1998, and drug
crimes related to his September 6, 2001, crack and cocaine distribution.1 In his plea
agreement, Villar agreed that: “any of his cooperation prior to becoming a fugitive on or
1
21 U.S.C. § 841(a)(1) and 21 U.S.C. § 860(a).
2
about October 13, 2000, shall not be the basis of a downward departure pursuant to
U.S.S.G. § 5K1.1.”
On July 11, 2002, the District Court sentenced Villar to 324 months imprisonment,
ten years supervised release, a $2,000 fine, and a $500 special assessment. 2 Finding
Villar’s cooperation not substantial in light of his flight, his continuation of large-scale
drug distribution upon returning to Philadelphia, and his failure to continue to cooperate
following his rearrest on September 6, 2001, the government elected not to file a motion
pursuant to U.S.S.G. § 5K1.1.
Villar did not challenge the government’s decision. Instead, Villar argued that the
District Court should depart anyway, pursuant to U.S.S.G. § 5K2.0, based on the totality
of the circumstances including his cooperation. The District Court rejected Villar’s
argument, finding that it had no discretion to grant a downward departure absent a
government motion.
II.
The District Court properly denied Villar’s motion for a downward departure
based on his “cooperation” with law enforcement. U.S.S.G. § 5K1.1 provides that a
motion for a downward departure based on a defendant’s cooperation may be made only
2
Upon the government’s motion, the District Court dismissed Counts V and VII of the
superseding indictment at the time of sentencing.
3
by the government. The District Court lacks authority to grant such a departure when the
government has properly refused to file such a motion.
Villar contends on appeal that the District Court had the authority to depart, even
in the absence of a government motion under § 5K1.1, based solely on his cooperation
with state law enforcement authorities. Villar claims that § 5K1.1 applies only to
cooperation with federal authorities, not with state authorities. He argues that
cooperation with state authorities is governed by § 5K2.0 and may be granted even
without the government’s concurrence.
We rejected this argument in United States v. Love, 985 F.2d 732 (3d Cir. 1993).
We said “there is no indication in the language of § 5K1.1 or in the accompanying
commentary that the Commission meant to limit ‘assistance to authorities’ to assistance to
federal authorities.” Id. at 734 (emphasis in original). We also said “[t]here is no
suggestion that the offense [investigated or prosecuted] need be a federal offense or that
the investigators need to be federal authorities.” Id. at 735. We concluded that if the
Sentencing Commission had intended to limit the provision to federal offenses
investigated only by federal authorities it could have explicitly done so. Id.; see also
United States v. Emery, 34 F.3d 911, 913 (9 th Cir. 1994).
Villar asks us to reconsider Love, relying on United States v. Kaye, 140 F.3d 86(2d Cir. 1998), in which a divided court held that § 5K1.1 only governs cooperation with
federal authorities and that cooperation with state authorities was not contemplated by the
4
sentencing guidelines. Villar recognizes that Kaye is inconsistent with Love and that Love
has not been overruled by this Court en banc. This is correct. Love is binding on this
panel. See IOP 9.1.3
III.
For the foregoing reasons, we will affirm the judgment of conviction and sentence.
3
Nonetheless, we find the Kaye rationale problematic.
5
TO THE CLERK:
Please file the foregoing opinion.
/s/ Anthony J. Scirica
Chief Judge
DATED: May 14, 2003