United States v. Jose Pizano ( 2005 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 04-1348
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United States of America, *
*
Plaintiff - Appellant, *
* Appeal from the United States
v. * District Court for the Northern
* District of Iowa.
Jose Pizano, *
*
Defendant - Appellee. *
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Submitted: November 16, 2004
Filed: April 13, 2005
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Before MURPHY, HANSEN, and MELLOY, Circuit Judges.
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MURPHY, Circuit Judge.
Jose Pizano pled guilty to conspiracy to distribute methamphetamine mixture
and conspiracy to launder money. Although he faced a mandatory minimum sentence
of 120 months for the drug conviction, he qualified for the safety valve. His
guideline range was calculated at 70-87 months, and the government moved for a
downward departure for his substantial assistance in investigating and prosecuting
other members of the conspiracy. The district court1 granted the substantial
assistance motion and sentenced Pizano to 18 months. The government appeals the
1
The Honorable Mark W. Bennett, Chief Judge, United States District Court
for the Northern District of Iowa.
sentence, asserting that the extent of the court's departure was unreasonable. After
carefully reviewing the record, we affirm.
Pizano was a real estate agent living in the Chicago area. His niece, Alejandra
Pizano, and her husband, Joel Sanchez, were involved in a drug ring in Sioux City,
Iowa. Alejandra asked Pizano to supply her with some MSM, a horse vitamin which
is used as a methamphetamine dilutant. Pizano ordered some MSM from a veterinary
supply store in Omaha and had it delivered to his house, where his niece picked it up.
Pizano later bought MSM for Salvador Sanchez-Flores, another member of the drug
ring, and delivered it to him in Sioux City even though Alejandra and her husband
advised against it, telling Pizano that they thought Sanchez-Flores was dangerous.
Pizano supplied the conspirators with a total of 500 pounds of MSM, which they cut,
at a three to one ratio, into methamphetamine they obtained from California.
Members of the drug ring also forwarded cash and money orders to Pizano for him
to make purchases for them. He bought a 2002 Cadillac Escalade for Sanchez-Flores
and signed a purchase agreement and made a down payment for a house in Sioux City
for his niece and her husband.
Sioux City drug task force officers were alerted by Omaha police that Pizano
had purchased a large quantity of MSM. They followed Pizano to a meeting with
Sanchez-Flores and arrested him. Pizano was indicted on one count of participation
in a drug conspiracy and three counts of participation in a money laundering
conspiracy. He entered into a plea agreement, under which he pled guilty to two
counts: (1) distributing methamphetamine mixture in violation of 21 U.S.C. §§
841(a)(1), 841(b)(1)(A), and 846 (stipulating that he was responsible for at least 15
kilograms of methamphetamine mixture), and (2) conspiracy to launder money in
violation of 18 U.S.C. § 1956(h).
Pizano faced a mandatory minimum sentence of 120 months on the drug
conviction, but he was found eligible to benefit from the safety valve which permits
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a sentence below the mandatory minimum. See 18 U.S.C. § 3553(f); U.S.S.G. §
5C1.2. He satisfied the five statutory criteria for the safety valve because he had no
prior offenses, his crime did not involve violence or a firearm, no one was killed or
seriously injured, he did not play a leading role in the drug offense, and the
government agreed that he had made a truthful proffer of all the information he had
about the drug conspiracy. See 18 U.S.C. § 3553(f).
The large quantity of methamphetamine attributed to Pizano resulted in a base
offense level of 38 for his drug conviction, but it was conceded that he was a minor
participant eligible for a mitigating role adjustment under United States Sentencing
Guidelines (U.S.S.G.) § 3B1.2. That capped his base offense level at 30, pursuant to
§ 2D1.1(a)(3). Downward adjustments of two levels were made to account for minor
role under § 3B1.2(b) and for the safety valve under § 5C1.2, resulting in an adjusted
offense level on the drug count of 26. Pizano's base offense level of 28 for money
laundering was enhanced two levels because he had been convicted under 18 U.S.C.
§ 1956. See § 2S1.1(b)(2)(B). The two counts of conviction were then grouped as
closely related counts under § 3D1.2(c) with a resulting offense level of 30, which
was the higher of the two adjusted offense levels. See § 3D1.3(a). After a three level
reduction for acceptance of responsibility under § 3E1.1, his total offense level was
27. Since Pizano had no criminal history points, his criminal history category was I.
The resulting guideline sentencing range was 70-87 months.
At sentencing neither party objected to the presentence report calculations, the
district court adopted the report's factual findings and recommended guideline
applications, and the government moved for a substantial assistance reduction under
§ 5K1.1. The government stated that its motion was based on Pizano's grand jury
testimony, which was expected to lead to the indictment of his niece for drug charges
and of Sanchez for drug and money laundering offenses. The prosecutor
recommended a 10% reduction from Pizano's guideline range, which the government
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says would have resulted in a sentence of 63 months. Pizano asked the court for
"substantial time off" from the calculated sentencing range.
During the sentencing hearing, the court engaged in an extended colloquy with
the prosecutors to learn what the government had considered in evaluating Pizano's
assistance and making its recommendation on sentencing. The court asked how
helpful Pizano's testimony was expected to be in indicting Alejandra Pizano and Joel
Sanchez. Counsel responded that Pizano was the primary witness against his niece
for drug charges, one of the primary witnesses against Sanchez for money laundering
charges, and a corroborating witness against Sanchez for drug charges. The court
also wanted to know whether Pizano was being credited for the likelihood that his
testimony would help induce guilty pleas or obtain convictions through trial. Counsel
answered that the government was not crediting Pizano for what was still speculative.
The court asked whether the government would later move for a substantial assistance
reduction under Federal Rule of Criminal Procedure 35(b) if Pizano's testimony
helped secure their convictions, and the prosecutors responded that they were unsure.
After this discussion the court decided that it would credit Pizano for the
usefulness of his testimony in respect to the other cases. The court considered the
probability that Alejandra Pizano and Joel Sanchez would be indicted and convicted,
as well as the significance for these prosecutions of Pizano's readiness to testify. The
court observed that if the timing were different and Pizano were being sentenced after
the other two had been indicted and were facing trial with him as a key witness, the
government would likely recommend a greater departure. It then sentenced him to
18 months on each count, to run concurrently.
The government contends on appeal that the departure granted by the district
court was almost 75% below Pizano's guideline range and that it was unreasonably
excessive. It argues that the extent of the departure is not commensurate with the
assistance Pizano rendered and that the court did not give proper consideration to its
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evaluation of his assistance and its recommendation of a 10% reduction. It states that
substantial weight is due its recommendation according to the commentary in the
guideline manual. U.S.S.G. § 5K1.1 cmt. n.3. At oral argument it declined to specify
any particular percentage point that would separate a reasonable departure in this case
from an unreasonable one.
The government also alleges that the court's evaluation of the significance and
usefulness of Pizano's testimony was impermissibly based on factors unrelated to
assistance. The government contends that courts ruling on downward departure
motions cannot consider factors unrelated to the defendant's assistance, citing cases
from other circuits and the commentary to § 5K1.1. It asserts that the district court
relied on reasons that were too speculative to be tied to the assistance Pizano had
provided.
We disagree with the government's contention that in this case the district court
considered factors unrelated to assistance. The court made its decision based on its
evaluation of how Pizano's grand jury testimony had helped the government in
prosecuting other members of the conspiracy. Moreover, the guideline commentary
is not explicitly so limiting as the government contends. It discusses a court's
evaluation of the "nature, extent, and significance" of a defendant's assistance but
does not say that only these considerations are legitimate, and it refers to "relevant
factors" without specifying what they are. See § 5K1.1 cmt. background; cf. United
States v. Anzalone, 148 F.3d 940, 942 (8th Cir. 1998) (suggesting that a district court
may appropriately consider factors unrelated to substantial assistance when exercising
its downward departure discretion).
We review a sentence for unreasonableness, guided by the sentencing factors
listed in 18 U.S.C. § 3553(a). United States v. Booker, 125 S. Ct. 738, 765, 766
(2005). To make the reasonableness determination, we ask whether the district court
abused its discretion. See United States v. Dalton, No. 04-1361; United States v.
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Haack, No. 04-1594 (both decisions also filed on today's date). Although the federal
sentencing guidelines are no longer mandatory, a sentencing court is still to begin its
analysis by considering the guidelines. See Booker, 125 S Ct. at 767 ("The district
courts . . . must consult [the] Guidelines and take them into account while
sentencing.").
The sentencing guidelines provide five factors for courts to consider when
deciding whether and to what extent a sentence should be reduced because of a
defendant's substantial assistance: the court's evaluation of the significance and
usefulness of the assistance, the reliability of the information, the nature and extent
of the assistance, any injury or risk of injury to the defendant or his family resulting
from the assistance, and the timeliness of the assistance. U.S.S.G. § 5K1.1. In
reviewing the reasonableness of the sentence imposed by the district court, we will
consider each of these factors in turn.
The first factor in §5K1.1 is "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." In this case the district court attempted to
learn from the government how helpful Pizano's testimony would be in obtaining
indictments of other conspirators, and it made a detailed exploration with government
counsel about how they had evaluated Pizano's assistance. The court expressed its
concern that the government's recommendation did not reflect the likelihood that the
other two conspirators would plead guilty or go to trial with Pizano as a key witness,
and it inquired about the government's evaluation of that and how it might be
credited. The court thus did not ignore the government's evaluation of the usefulness
of Pizano's testimony, but it attempted to calculate the probability of there being
additional future benefits to the government from his assistance.
The colloquy at the sentencing hearing did not devote equal time to all
guideline factors, but each was addressed in some way. The second § 5K1.1 factor
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is "the truthfulness, completeness, and reliability of any information or testimony
provided by the defendant," and the government stated at the hearing that it "had no
concerns about [Pizano's] truthfulness." The third factor was directly related to the
court's extended inquiries, for it addresses "the nature and extent of the defendant's
assistance." Pizano cooperated in the investigation of his niece, a close family
member, and her husband, a major figure in the conspiracy. His cooperation involved
debriefings and supplying sworn testimony before a grand jury. In addition to
helping the government prosecute these individuals, Pizano's testimony could be
instrumental in seizing assets from the group's money laundering scheme. The
district court had reason to find that Pizano's assistance was of a nature and extent
that warranted a significant reduction in sentence.
The fourth factor is "any injury suffered, or any danger or risk of injury to the
defendant or his family resulting from his assistance," and Pizano's attorney advised
the court at the sentencing hearing that the members of the conspiracy are "dangerous
people" and that Pizano was "in fear." The government did not challenge those
assertions, and the presentence report stated that Sanchez-Flores, another actor in the
conspiracy, was considered dangerous by other conspirators. The district court had
reason to believe that Pizano put himself or his family at risk when he testified. The
final factor in § 5K1.1 is "the timeliness of the defendant's assistance," and the parties
agree that Pizano assisted the government about one month after his indictment. The
government comments that he could have begun cooperating earlier in the
investigation, but it does not argue that the assistance was untimely.
The commentary and background notes in the guideline manual give further
guidance for the court's consideration of a substantial assistance departure. While
"[l]atitude is . . . afforded the sentencing judge to reduce a sentence based upon
variable relevant factors," § 5K1.1, cmt. background, the judge is also to give
"substantial weight" to the prosecutor's evaluation of the extent of the defendant's
assistance, § 5K1.1, cmt. n.3. The manual does not define "substantial," a word whose
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meaning varies depending on its legal context. See, e.g., Eichelberger v. Barnhart,
390 F.3d 584, 589 (8th Cir. 2004) ("substantial evidence" meaning less than a
preponderance). Reading § 5K1.1 together with the related guideline notes suggests
that courts are to give the government's evaluation serious, but not necessarily
decisive, weight. If the Sentencing Commission had intended that courts were
obligated to adopt the government's recommendation, it would not have started §
5K1.1 with a factor focusing on "the court's evaluation of the significance and
usefulness of the defendant's assistance," § 5K1.1(a) (emphasis added), or talked
about the latitude a sentencing court has, § 5K1.1, cmt. background.
We conclude that serious consideration needs be given the government's
recommendation, but that it is certainly not controlling. The record indicates that the
district court seriously considered the government's recommendation before arriving
at its own evaluation of the significance and usefulness of Pizano's assistance. In
accordance with 18 U.S.C. § 3553(c)(2), the district court stated its reasons for
departing from the guidelines range, and these reasons were based on its examination
of the facts and were related to the nature, extent, and significance of Pizano's
assistance.
The district court sentenced Pizano before the Supreme Court decided Booker,
and it did not explicitly analyze § 3553(a) factors other than those tied to the then
mandatory guidelines. We have considered the statutory factors in our review of the
sentence and conclude that they support the reasonableness of the district court's
sentencing decision. Relevant to "the nature and circumstances of the offense and the
history and characteristics of the defendant," § 3553(a)(1), are the facts that Pizano
was not personally involved in the distribution of methamphetamine or in any
criminal conduct until these offenses when he was in his early forties and purchased
the horse vitamin at the behest of his young niece. His expression of regret at the
sentencing hearing was also perceived by the district court to be genuine. We
conclude from the record that the district court's sentence was not inconsistent with
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the statutory goals of adequately deterring criminal conduct, § 3553(a)(2)(B), and
protecting the public from the defendant's further crimes, § 3553(a)(2)(C). Finally,
we are satisfied that the extent of the district court's departure would not create an
unwarranted disparity under all the circumstances of Pizano's case. See § 3553(a)(6);
Booker, 125 S. Ct. at 767.
Although the extent of the court's departure was well below the government's
recommendation, we conclude that the district court did not abuse its discretion in
this case and that the sentence imposed was not unreasonable. Accordingly, the
judgment of the district court is affirmed.
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