United States v. Forrest , 67 F. App'x 200 ( 2003 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.
 No. 02-4808
KENNETH LEONARD FORREST, a/k/a
Fuski,
Defendant-Appellant.

Appeal from the United States District Court
for the District of South Carolina, at Charleston.
Sol Blatt, Jr., Senior District Judge.
(CR-00-263)
Submitted: May 27, 2003
Decided: June 17, 2003
Before MICHAEL, KING, and GREGORY, Circuit Judges.
Affirmed in part and dismissed in part by unpublished per curiam
opinion.
COUNSEL
Melisa W. Gay, GAY & ASSOCIATES, P.C., Mt. Pleasant, South
Carolina, for Appellant. J. Strom Thurmond, United States Attorney,
Nancy C. Wicker, Assistant United States Attorney, Robert H. Bick-
erton, Assistant United States Attorney, Charleston, South Carolina,
for Appellee.
2 UNITED STATES v. FORREST
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Kenneth Leonard Forrest pled guilty to conspiracy to possess with
intent to distribute more than 50 grams of crack cocaine, 21 U.S.C.
§ 846 (2000), and was sentenced to 425 months imprisonment. He
appeals his sentence, contending that the district court made inade-
quate findings to support an adjustment for obstruction of justice, U.S.
Sentencing Guidelines Manual § 3C1.1 (2001), erred in refusing to
require the government to move for a substantial assistance departure
under the terms of the plea agreement, and erred when it decided not
to depart below the guideline range pursuant to USSG § 4A1.3, p.s.
We affirm in part and dismiss in part.
The charged conspiracy involved twenty-one defendants who dis-
tributed crack between 1996 and 2001 in the Hilton Head and Bluff-
ton areas of South Carolina. In a proffer made before he entered into
a plea agreement, Forrest stated that from 1996 to 1998 he sold a
large quantity of cocaine powder to Sabra* Robinson, who then dis-
tributed the cocaine as both powder and crack through a number of
subordinates including Jermaine Robinson, Forrest’s cousin, and
Tyrone Robinson. Forrest stated that Jermaine lived in a trailer with
Sabra and sold cocaine and crack for Sabra. He also said that Tyrone
Robinson sold cocaine and crack for Sabra.
Forrest’s plea agreement provided that, if he gave truthful coopera-
tion and the government deemed that his cooperation resulted in "sub-
stantial assistance in the investigation or prosecution of another
person," the government would move for a downward departure pur-
suant to USSG § 5K1.1, p.s.
*Also spelled "Saber" and "Sabre."
UNITED STATES v. FORREST 3
However, after Forrest’s guilty plea, in interviews before the
August 2001 trial of nine other defendants, including the Robinsons,
Forrest denied making his previous statements about Jermaine and
Tyrone. After Forrest failed a polygraph examination in which he was
questioned about Jermaine’s and Tyrone’s involvement, the govern-
ment decided not to call him as a witness at trial. After the trial began,
Forrest’s attorney sent a letter to the government attorneys stating that
Forrest had realized that he was "wrong to hold back information
about Jermaine," and that he was willing to testify at trial. Lacking
other hard evidence against Jermaine and Tyrone, the government
interviewed Forrest again briefly and called him to testify. In his testi-
mony, Forrest denied having first-hand knowledge that Jermaine was
involved with crack distribution and denied having "any crack deal-
ings" with Tyrone. He also was forced to admit that he had previously
lied to the government to protect Jermaine, which detracted from his
credibility as a witness. Both Jermaine and Tyrone were acquitted; the
other seven defendants were convicted. After the trial concluded, the
government scheduled another polygraph examination to inquire into
Forrest’s knowledge of Tyrone’s drug activities. Before the test was
given, Forrest admitted that he had seen Sabra give Tyrone one ounce
of crack in 1997 and had personally given Tyrone small amounts of
crack several times.
At sentencing, the district court determined that Forrest obstructed
justice after his guilty plea by being completely untruthful with
respect to Tyrone and by telling only part of the truth with respect to
Jermaine. The court declined to compel a motion for a substantial
assistance departure, finding that the government had "ample
grounds" for not requesting a departure and that Forrest had not
shown that the government acted from any unconstitutional motive.
Finally, the court refused to depart pursuant to § 4A1.3 or any of the
other grounds urged by Forrest.
On appeal, Forrest argues that the district court made inadequate
findings to support the adjustment for obstruction of justice. The dis-
trict court’s factual findings with respect to an obstruction of justice
adjustment are reviewed for clear error; legal conclusions are
reviewed de novo. United States v. Sun, 278 F.3d 302, 313 (4th Cir.
2002). Forrest contends, first, that the district court’s findings con-
cerning his trial testimony were unclear because the court failed to
4 UNITED STATES v. FORREST
make the findings required for an adjustment under § 3C1.1 based on
perjury. See United States v. Dunnigan, 507 U.S. 87, 95 (1993) (hold-
ing that district court must find that defendant willfully testified
falsely about a material matter before making adjustment based on
perjury). To the extent that the district court based the adjustment on
perjured trial testimony, we are satisfied that its findings encompassed
all the factual predicates for perjury. See United States v. Akinkoye,
185 F.3d 192, 205 (4th Cir. 1999). However, the court found that,
during the government’s preparation for trial, as well as at trial, For-
rest willfully withheld information that he had previously provided
about the involvement of Jermaine and Tyrone within the crack con-
spiracy and that his conduct impeded their prosecution. The facts sup-
porting the court’s conclusion were well-known to the parties and
were set out at length in the presentence report and the government’s
sentencing memorandum which explained why it would not move for
a § 5K1.1 departure. The court summarized the facts briefly in finding
that Forrest had withheld all he knew firsthand about Tyrone’s drug
activity and much of what he knew about Jermaine’s connection with
crack.
Forrest also argues that his conduct did not obstruct the prosecution
of the "instant offense;" however, Application Note 1 to § 3C1.1 cur-
rently specifies that the adjustment applies to obstructive conduct that
occurs during the prosecution of a "closely related case, such as that
of a co-defendant." We conclude that the district court did not clearly
err in finding that Forrest obstructed the prosecution of Jermaine and
Tyrone Robinson and that the court’s conclusions and reasoning were
adequately explained to the parties at sentencing and were sufficient
to permit review of its ruling.
Next, Forrest contends that the government breached the plea
agreement when it refused to move for a substantial assistance depar-
ture and that the district court erred by failing to compel a departure
motion. When a defendant alleges a breach of this nature, the sentenc-
ing court may determine whether the government has "bargained
away its § 5K1.1 discretion" to determine whether the defendant has
rendered substantial assistance. United States v. Snow, 234 F.3d 187,
190 (4th Cir. 2000); United States v. Conner, 930 F.2d 1073, 1076
(4th Cir. 1991). If so, the district court must evaluate the strength of
the defendant’s assistance and decide whether a departure motion is
UNITED STATES v. FORREST 5
due under the agreement. Id. However, this court held in Snow that
any waiver of the government’s discretion must be explicit, not
implied, in the language of the agreement. 234 F.3d at 190. Forrest
relies on contrary decisions from other circuits which are not binding
on this court. See, e.g., United States v. Courtois, 131 F.3d 937, 938-
39 (10th Cir. 1997) (holding that government may waive § 5K1.1 dis-
cretion by failing to state that it retains discretion to evaluate defen-
dant’s assistance).
Moreover, in Forrest’s plea agreement, the government explicitly
retained its discretion to evaluate Forrest’s assistance under the terms
of the plea agreement by promising to move for a § 5K1.1 departure
if Forrest’s cooperation "is deemed by the Attorneys for the Govern-
ment as providing substantial assistance in the investigation or prose-
cution of another person. . . ." Having deemed that Forrest did not
provide substantial assistance, the government did not breach the plea
agreement by refusing to move for a downward departure for that rea-
son.
When the government has not waived its § 5K1.1 discretion, the
district court may review the government’s decision not to move for
a departure only on the grounds of bad faith or unconstitutional
motive. Snow, 234 F.3d at 190. A defendant may be entitled to relief
on this ground "if the prosecutor’s refusal to move was not rationally
related to any legitimate Government end." Wade v. United States,
504 U.S. 181, 186 (1992). Forrest alleges as he did in the district
court that the government’s decision was made in bad faith in that it
conditioned Forrest’s substantial assistance on the outcome of the
trial. Given that the district court found that he had withheld informa-
tion concerning Tyrone and Jermaine during the government’s prepa-
ration for trial and in his trial testimony, the district court did not err
in refusing to compel the departure motion.
Finally, Forrest argues that the district court committed reversible
error by denying his request for a downward departure based on his
assertion that criminal history category VI overstated his prior crimi-
nal conduct. A district court’s decision not to depart below the guide-
line range is not reviewable on appeal unless it is based on a mistaken
belief that the court lacks authority to depart. United States v. Carr,
6 UNITED STATES v. FORREST
271 F.3d 172, 176-77 (4th Cir. 2001). In this case, we conclude that
the court understood its authority to depart.
We therefore affirm the sentence, but dismiss that portion of the
appeal that contests the district court’s decision not to depart pursuant
to § 4A1.3. We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED IN PART, DISMISSED IN PART