United States v. Pearce

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
v. No. 98-4416
KENNETH ROBERT PEARCE,
Defendant-Appellee.
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
v. No. 98-4563
HOMER GRADY CHAPMAN,
Defendant-Appellee.
Appeals from the United States District Court
for the District of South Carolina, at Columbia.
Matthew J. Perry, Jr., Senior District Judge.
(CR-97-438)
Argued: April 9, 1999
Decided: September 13, 1999
Before MURNAGHAN, WILKINS, and NIEMEYER,
Circuit Judges.
_________________________________________________________________
Reversed and remanded by published opinion. Judge Niemeyer wrote
the opinion, in which Judge Murnaghan and Judge Wilkins joined.
_________________________________________________________________
COUNSEL
ARGUED: Thomas Ernest Booth, UNITED STATES DEPART-
MENT OF JUSTICE, Washington, D.C., for Appellant. W. Frank
Cantrell, Banner Elk, North Carolina, for Appellee Chapman; Greg-
ory Poole Harris, Columbia, South Carolina, for Appellee Pearce. ON
BRIEF: J. Rene Josey, United States Attorney, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Appellant.
_________________________________________________________________
OPINION
NIEMEYER, Circuit Judge:
Kenneth Pearce and Homer Chapman pled guilty to conspiracy to
distribute cocaine in violation of 21 U.S.C. § 846. At their sentenc-
ings, the government made a motion under U.S.S.G.§ 5K1.1 for a
downward departure for both defendants based on their substantial
assistance, recommending a three-level departure. The district court
disregarded the government's recommendation and, claiming a "rare
instance" of "total discretion," departed downward 24 levels for
Pearce (from level 29 to level 5) and 20 levels for Chapman (from
level 29 to level 9). The government appeals, claiming that the district
court abused its discretion by considering irrelevant factors, by
departing to an unreasonable extent, and by failing to provide an ade-
quate statement of reasons. We agree, and, for the reasons that follow,
we reverse and remand for resentencing in accordance with this opin-
ion.
I
Pearce's and Chapman's guilty pleas were based on their conspir-
acy to purchase one quarter kilogram of cocaine from an undercover
government agent. Chapman made the deal to purchase cocaine for
$4,500, and he sent Pearce to pick it up and deliver the money. After
government agents delivered pseudo-cocaine to Chapman, they
arrested both Pearce and Chapman. Thereafter, pursuant to plea
agreements, both defendants assisted the government in the investiga-
tion of other cases. Accordingly, at sentencing, the government filed
2
a motion for downward departure with respect to each defendant
under U.S.S.G. § 5K1.1. It stated that the defendants were "instru-
mental in assisting law enforcement agents in a particular investiga-
tion which resulted in the arrest of another individual who will be
prosecuted in either federal or state court." The government acknowl-
edged that each defendant provided this information"at the risk of his
personal safety" and that the assistance was"substantial."
At the time of their sentencings, both Pearce and Chapman were
classified as career offenders under the Sentencing Guidelines.1
Pearce had been convicted in April 1985 for importing and possessing
with the intent to distribute 980 pounds of marijuana on July 19,
1984. He was also convicted in May 1985 of conspiring to import
5,000 pounds of marijuana during the period from September to
December, 1980. Chapman had previously been convicted of partici-
pating with Pearce in the July 1984 importation of marijuana. In addi-
tion, in August 1988, he was convicted of manufacturing and selling
over 200 grams of cocaine. After the South Carolina Supreme Court
vacated that conviction, Chapman pled guilty in October 1990 to the
lesser offense of possession with intent to distribute cocaine in
exchange for time served.
The offense level in this case was 29 for each defendant, calculated
by taking a base offense level of 20 plus a 12-level increase for career
offender status minus a 3-level reduction for acceptance of responsi-
bility. This offense level of 29, when coupled with a career history
category of VI, yields a sentencing range of between 151 and 188
months imprisonment.
_________________________________________________________________
1 Under the Sentencing Guidelines, a person is a "career offender" if,
at the time of his conviction for a felony that is a crime of violence or
a controlled substance offense committed while he was at least 18, he has
previously been convicted of at least two felonies, each of which was
either a crime of violence or a controlled substance offense. U.S.S.G.
§ 4B1.1. A "career offender" is automatically assigned to criminal his-
tory category VI, the highest criminal history category. Id.
3
Pearce's sentencing.
At Pearce's sentencing on April 30, 1998, the government recom-
mended a three-level departure based on Pearce's participation in a
controlled drug buy from an individual who was to be prosecuted in
state court. This departure would have resulted in an offense level of
26, yielding a sentencing range of 120 to 150 months imprisonment.
Pearce, however, requested a departure of 24 levels, from 29 to 5,
yielding a sentencing range of 9 to 15 months imprisonment. In sup-
port of his request, Pearce's counsel cited Pearce's seven months of
assistance to the government, although he conceded that Pearce's util-
ity was limited because of his relative lack of"knowledge of the [nar-
cotics] industry." Counsel also pointed to the fact that Pearce was
under supervision that included regular drug testing and that Pearce
had successfully completed these tests as well as"each and every task
set to him by the pretrial services office." Counsel asserted that
Pearce had been "drug-free" for the previous ten years, although this
assertion contradicted the presentence report which showed that while
Pearce was on special parole from his April 1985 conviction, he
tested positive for cocaine twice in 1990 and once in 1992, and posi-
tive for amphetamines in 1993. Counsel also noted that Pearce was
a "good father," a "good husband," and a"hard worker." Finally,
counsel noted that the offenses that made Pearce a career offender
occurred more than a decade earlier, suggesting that a downward
departure would counterbalance the enhancement caused by Pearce's
career offender status.
In response to Pearce's argument, the district court stated, "I under-
stand that once the government makes its motion[for a downward
departure under U.S.S.G. § 5K1.1], the court has total discretion.
That's -- this is one of the rare instances that a federal judge has dis-
cretion which the Congress has completely removed from federal
judges." Exercising this claimed "total discretion," the court granted
the requested 24-level departure and sentenced Pearce to 10 months
of incarceration, one-half of which was to be served in a halfway
house.
Chapman's sentencing.
At Chapman's sentencing on July 1, 1998, the government recom-
mended, as it did with Pearce, a three-level departure for his substan-
4
tial assistance. Chapman had made a controlled delivery of pseudo-
cocaine to an individual who subsequently pled guilty to federal drug
charges based on the transaction. After the government filed its
motion for a downward departure, Chapman continued to provide
assistance, arranging the controlled buy in which Pearce participated
and for which Pearce received a downward departure. The departure
recommended by the government would have given Chapman an
offense level of 26 and a sentencing range of 120 to 150 months.
Chapman, however, requested a departure of 20 levels, from 29 to 9,
to give him a sentencing range of 21 to 27 months. In support of this
request, Chapman's counsel argued that Chapman's status as a career
offender overstated his actual history due to the events surrounding
his second conviction. According to counsel, Chapman had initially
been convicted of trafficking in cocaine, but this conviction was over-
turned and remanded without comment by the South Carolina
Supreme Court. Chapman remained in jail for several months pending
retrial on a new indictment for the lesser charge of possession with
intent to distribute cocaine. In the meantime, a federal parole warrant
was issued against Chapman because of the vacated state conviction.
Chapman agreed to plead guilty to the lesser charge in exchange for
a sentence of time served. Counsel suggested that Chapman pled
guilty when he had a "defensible" case only to be released from state
incarceration and to avoid reincarceration by the federal government
for a parole violation.
Counsel also supported his request for a 20-level departure by stat-
ing his opinion that "in view of the basic crime that the defendant is
charged with, which is a conspiracy to obtain one quarter of a kilo of
cocaine, that it requires a substantial downward departure from a level
29 to come back to serve the ends of justice." The government
responded that "departure of that magnitude [20 levels] is not war-
ranted [by] the assistance offered by this defendant," and that
its recommended three-level departure was consistent with recom-
mendations made in similar cases throughout South Carolina. After
hearing both sides, the district court noted its understanding that
"once the government moves for downward departure, there is no lim-
itation, save that of reasonableness on the authority of the court." The
court then granted a 20-level departure and sentenced Chapman to 24
months in prison.
5
The government filed this appeal, contending that the district court
erred in concluding that the government's § 5K1.1 motion gave the
court unlimited discretion to depart downward. As a result, the gov-
ernment maintains that the district court based its departures on fac-
tors that were unrelated to the defendant's assistance. In addition, the
government contends that the extent of the downward departures was
unreasonable and that the court failed to support its departure with an
adequate statement of reasons.
II
Once the government files a motion for a downward departure
under U.S.S.G. § 5K1.1, the district court has broad discretion in
deciding whether to depart downward and to what extent, but this dis-
cretion is not unlimited. See United States v. Casiano, 113 F.3d 420,
429 (3d Cir. 1997). We review the district court's decision for abuse
of discretion. See Koon v. United States, 518 U.S. 81, 100 (1996);
United States v. Barber, 119 F.3d 276, 282 (4th Cir. 1997) (en banc).
Because a "district court by definition abuses its discretion when it
makes an error of law," Koon, 518 U.S. at 100 (citing Cooter & Gell
v. Hartmarx Corp., 496 U.S. 384, 405 (1990)), our review for abuse
of discretion includes the determination of whether the discretion
exercised by the district court was "guided by erroneous legal conclu-
sions." Id.
Congress requires that district courts sentence defendants within
the range established by the Sentencing Guidelines to the extent appli-
cable. See 18 U.S.C. §§ 3551, 3553(b). It has, however, directed that
the Sentencing Guidelines "reflect the general appropriateness of
imposing a lower sentence than would otherwise be imposed . . . to
take into account a defendant's substantial assistance in the investiga-
tion or prosecution of another person who has committed an offense."
28 U.S.C. § 994(n). Congress has even provided that district courts
may, on the government's motion, depart below statutory minimum
sentences so as to reflect a defendant's substantial assistance. See 18
U.S.C. § 3553(e); 28 U.S.C. § 994(n). The Sentencing Guidelines
provide the criteria to guide the sentencing court's discretion in
departing downward for substantial assistance. See U.S.S.G. § 5K1.1.
6
Section 5K1.1 provides that upon the government's motion to
depart downward, the sentencing court may depart from guideline
sentences, taking into account five specified factors, see § 5K1.1(a),2
as well as other "relevant factors," see § 5K1.1, comment. (backg'd).
In every case, and particularly when the "extent and value of the
assistance are difficult to ascertain," the court should give
"[s]ubstantial weight" to the government's evaluation of the defen-
dant's assistance. U.S.S.G. § 5K1.1, comment. (n.3). In any event,
any factor considered by the district court on a§ 5K1.1 motion must
relate to the "nature, extent, and significance" of the defendant's
assistance. U.S.S.G. § 5K1.1, comment. (backg'd). This holding,
which is mandated by the text and purpose of the applicable statutes
and the Sentencing Guidelines, is consistent with the law in other cir-
cuits that have considered this issue. See, e.g., Casiano, 113 F.3d at
429-30 (stating that in choosing to depart downward on a § 5K1.1
motion, a district court may only consider factors relating to a defen-
dant's cooperation); United States v. Aponte, 36 F.3d 1050, 1052
(11th Cir. 1994) (holding that a court, in considering a § 5K1.1
motion to depart below a statutory minimum, should only consider
factors relative to a defendant's substantial assistance); United States
v. Campbell, 995 F.2d 173, 175 (10th Cir. 1993) (holding that a sen-
tencing court may depart from a statutory minimum sentence "only to
reflect substantial assistance" by the defendant); United States v.
Mariano, 983 F.2d 1150, 1156 (1st Cir. 1993) (holding that in depart-
ing from the guideline range on a § 5K1.1 motion, a court may con-
sider mitigating factors "only to the extent that they can fairly be said
_________________________________________________________________
2 The five enumerated factors are:
(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 infor-
mation 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; [and]
(5) the timeliness of the defendant's assistance.
U.S.S.G. § 5K1.1(a).
7
to touch upon the degree, efficacy, timeliness, and circumstances of
a defendant's cooperation"); United States v. Valente, 961 F.2d 133,
134-35 (9th Cir. 1992) (holding that a sentencing court may not, on
a motion under § 5K1.1, depart downward from a statutory minimum
sentence because of defendant's "aberrant behavior"); United States
v. Thomas, 930 F.2d 526, 529 (7th Cir. 1991) (concluding that
"§ 5K1.1 permits departure only on the basis of the quality of assis-
tance rendered"), overruled on other grounds by United States v.
Canoy, 38 F.3d 893 (7th Cir. 1994). The procedural mechanism that
permits reviewing courts to monitor these limitations is the require-
ment that the sentencing court state its reasons for any departure pur-
suant to a motion under § 5K1.1. See 18 U.S.C. § 3553(c)(2);
U.S.S.G. § 5K1.1, comment. (backg'd).
In addition to these statutory restrictions on a district court's discre-
tion in deciding whether and to what extent to grant a § 5K1.1 motion
to depart downward, the district court is in every instance required to
act reasonably as to the extent of its downward departure. As we
noted in United States v. Wilson, 896 F.2d 856 (4th Cir. 1990), while
there is no fixed limit on how many levels a court may depart for sub-
stantial assistance by the defendant, "the limit of the district court's
discretion is the question of whether or not the sentence imposed was
reasonable." Id. at 859. "The reasonableness determination looks to
the amount and extent of the departure in light of the grounds for
departing." Williams v. United States, 503 U.S. 193, 203 (1992). A
sentence, however, can be upheld on appeal as reasonable "even if
some of the reasons given by the district court to justify the departure
from the presumptive guideline range are invalid, provided that the
remaining reasons are sufficient to justify the magnitude of the depar-
ture." Id. at 204.
The sentencing court, when deciding the government's motion to
depart downward pursuant to U.S.S.G. § 5K1.1, thus faces two dis-
tinct limitations on its otherwise broad discretion. First, it may only
consider the nature, extent, and significance of the defendant's assis-
tance, and second, the extent of any departure must be reasonable.
III. PEARCE'S SENTENCE
When the district court sentenced Pearce to ten months imprison-
ment, it did not state the specific reasons on which it based its deci-
8
sion. This omission itself was error. See 18 U.S.C. § 3553(c)(2) ("The
court, at the time of sentencing, shall state in open court the reasons
for its imposition of the particular sentence, and, if the sentence . . .
is outside the [pre-departure guideline] range, . . . the specific reason
for the imposition of a sentence different from that[range]"). Even
though the district court in this case did not articulate its reasons, the
evidence it considered and the arguments counsel made to it reveal
much about the district court's reasons for deciding to depart down-
ward 24 levels in this case.
Prior to granting the 24-level departure, the district court heard
substantial argument from Pearce's counsel who requested specifi-
cally that the court depart 24 levels. Counsel touched only briefly on
Pearce's assistance to the government, noting that Pearce had been
assisting for seven months but acknowledging that Pearce was not
particularly helpful because of his lack of knowledge about the nar-
cotics business. The only other information relating to the nature,
extent, and significance of Pearce's assistance was the government's
assertion that Pearce's assistance was substantial and its recommenda-
tion for a three-level downward departure.
The bulk of defense counsel's argument centered on factors that
did not relate to the nature, extent, and significance of Pearce's assis-
tance and that were therefore not relevant under§ 5K1.1. Counsel
referred to Pearce's success under pretrial supervision. He described
Pearce as a "good father," a "good husband," and a "hard worker" and
asked the court "to consider the family history, not just the family his-
tory prior to this, but the family history of Kenny[Pearce] over the
last months, as well as what's going to happen to Kenny's family over
the next 11 to 12 months or over the next ten years." Counsel also
implied that Pearce's criminal history did not warrant "career
offender" status. He stated that Pearce had been"drug-free" for the
previous ten years, a statement that was belied by the presentence
report, which showed that on at least four occasions during that period
Pearce tested positive for drugs. Counsel advised the court that "when
fashioning the appropriate sentence, this court has the discretion to
weigh all reliable and all information brought to it to determine
whether or not somebody is entitled to a five-level departure or a ten-
level departure or a one-level departure." (Emphasis added). Rather
than taking exception to this statement as inconsistent with the law,
9
the district court appeared to agree, responding,"I understand that
once the government makes its motion, the court has total discretion."
After presenting these arguments on factors that may not properly
be considered on a § 5K1.1 motion, defense counsel then issued what
can only be described as a thinly veiled invitation for the court to
ignore completely the sentencing guidelines:
I have heard from all of the judges [of the District of
South Carolina] that used to be on the bench prior to the
[sentencing] guidelines, I have heard each one of them
speak of a time when they had discretion, when they could
look at a man in the eye and look at his family and look at
what he had done since he had been arrested and whether he
has tried to make his life better, make the lives of people
around him better, whether or not he had worked, whether
or not he had provided assistance to the government, look
at all that.
At that time, Judge, before 1987, before guidelines, you
know, the judge had the discretion to look somebody in the
eye -- if it wasn't a mandatory minimum sentence, they had
to look somebody in the eye and say, I think this person is
someone who has successfully flourished under the structure
of home detention. And you could give them home deten-
tion, without having to worry about guidelines and sentenc-
ing commissions and things like that.
That's where we are, Judge, and that's why we are asking
you today to consider the family history [of Pearce]. . . .
That's why we are asking you to look at what he has done
recently . . . .
We ask you to consider that Judge, just like you could
prior to sentencing guidelines.
Reminding a sentencing judge of the "good ole days" when judges did
not have "to worry about guidelines and sentencing commissions and
things like that" was without question an inappropriate argument. The
10
Sentencing Guidelines are the law, and inviting a judge to ignore
them and apply the law as it was more than a decade earlier is
improper.
While counsel gave a long, inappropriate legal argument and made
repeated references to issues irrelevant to Pearce's substantial assis-
tance, the court did nothing to discourage counsel or to indicate that
it would not take into account the irrelevant factors or accept the invi-
tation to ignore the law. Rather, the court's responses indicate that it
agreed with counsel that it could ignore the guidelines and consider
factors other than Pearce's assistance to the government. The court
stated, for example, that "the court has total discretion. . . . [T]his is
one of the rare instances that a federal judge has discretion which the
Congress has completely removed from federal judges."
Considering the improper arguments made by counsel, which made
up the great majority of his comments; the court's permissive
response to these improper arguments; the lack of any significant dis-
cussion of Pearce's assistance; and the fact that the court failed to per-
form its statutory duty to state in open court the reasons for its
sentence, we can only conclude that the court improperly based its
decision in substantial part on factors unrelated to Pearce's assistance
to the government. The district court's decision therefore cannot be
reconciled with our holding that in considering a downward departure
under § 5K1.1, a court may only take into account factors relating to
the nature, extent, and significance of the defendant's assistance.
In addition, based on the record presented to the court and the gov-
ernment's evaluation of the appropriate downward departure, we con-
clude that the 24-level departure granted by the district court was
unreasonable. The record supports the conclusion that Pearce aided
the government by participating in a single sting operation that led to
the arrest of one individual who then was to be prosecuted in state
court. There is no evidence that this individual was a particularly
important target. Additionally, the record suggests that Pearce was
merely a go-between who would not have been able to set up a deal
without Chapman's assistance. Even Pearce's counsel conceded that
Pearce did not know much about the narcotics business and was
therefore of limited use to the government. Moreover, there is no evi-
dence that the district court gave "substantial weight" to the govern-
11
ment's evaluation as required by the sentencing guidelines. See
U.S.S.G. § 5K1.1 comment. (n.3). Based on this record about the
nature, extent, and significance of Pearce's assistance and the govern-
ment's evaluation that only a 3-level departure was justified, we can
find no record support for imposing a 24-level downward departure.
No assistance-related factors justify the "magnitude" of the departure.
Williams, 503 U.S. at 204.
Because the district court apparently considered irrelevant factors;
failed to give substantial weight to the government's evaluation;
failed to give its reasons for departing; and, based on the record,
departed to an unreasonable extent, we vacate the sentence and
remand for resentencing in accordance with the principles set forth in
this opinion.
IV. CHAPMAN'S SENTENCE
Chapman's sentencing proceeding differed in two relevant respects
from Pearce's. First, at Chapman's proceeding, there was significant
discussion regarding the assistance that Chapman had rendered to the
government. Second, the government joined the defense in presenting
irrelevant factors, such as Chapman's two recent arrests on domestic
violence charges. But Chapman's hearing was similar to Pearce's in
that the court entertained argument on factors that were not relevant
to deciding the § 5K1.1 motion to depart downward.
With regard to Chapman's assistance, the government told the
court that Chapman had advised the government of various individu-
als with whom he had engaged in previous drug activity. Chapman
then agreed to set up and engage in a sham drug transaction with one
of the individuals, leading to that individual's arrest and subsequent
guilty plea on federal drug charges. When asked by the court whether
the sham transaction had placed Chapman in danger, the government
acknowledged that "there is a certain level of danger inherent any
time a defendant -- I mean a cooperating individual is working at the
direction of law enforcement," but indicated that the danger in this
case was not particularly great because Chapman was a friend of the
person he was setting up and because government agents were moni-
toring the transaction. Defense counsel then told the court that after
the government had made the substantial assistance motion, Chapman
12
had rendered further assistance, setting up the sham transaction that
Pearce consummated and for which Pearce received a downward
departure. The government conceded that Chapman had indeed set up
this transaction and, after prodding from the court, conceded that
Chapman's assistance in this second transaction was"substantial."
However, the government maintained that this additional assistance
did not change the government's recommendation that Chapman
receive a three-level downward departure.
Chapman's counsel did not rest solely on the descriptions of Chap-
man's assistance to justify his request for a 20-level downward depar-
ture. He also made an argument based upon the way in which the
instant conviction was obtained, asserting that Chapman had been out
of "the drug business for some time" and that he was drawn back in
by repeated phone calls from a government informant encouraging
him to set up a drug deal.
In addition, Chapman's counsel relied on what he claimed were the
unusual circumstances surrounding Chapman's 1990 state conviction,
which was used as a predicate offense for career-offender status.
Chapman's current counsel was joined by Chapman's former counsel
who told the court that Chapman's initial South Carolina state convic-
tion for trafficking was overturned by the South Carolina Supreme
Court apparently because of evidence of "certain misrepresentations
by the government [of South Carolina], and the failure to disclose the
confidential informant [used in that case]." He further told the court
that Chapman had a defensible case but chose to forego a second trial
and plead guilty to a lesser charge of possession with intent to distrib-
ute cocaine in exchange for the recommendation that he serve no fur-
ther time and an understanding that such a plea would satisfy the
federal government so that it would not hold a parole violation hear-
ing.
Finally, the court asked the government whether Chapman was
more or less culpable than Pearce. The government responded that
Chapman was more culpable; the defense argued that the two were
similarly culpable and that Chapman's family was a"backbone" of
the community.
Although the court entertained all of these arguments regarding
factors that are plainly irrelevant to the nature, extent, and signifi-
13
cance of Chapman's assistance to the government, prior to granting
the defense's request for a 20-level departure, the court stated as
grounds for the sentence only its assessment of Chapman's assistance.
During this explanation, the court did not reference the improper fac-
tors that defense counsel had argued. Thus, even though there was a
substantial discussion about factors that were not appropriate for con-
sideration on a § 5K1.1 motion, because there was also substantial
discussion regarding the level of assistance rendered by Chapman and
because the court only referenced this later discussion when imposing
Chapman's sentence, we will not assume that the court relied on
improper factors when granting the 20-level departure.
Nevertheless, as with Pearce, we conclude that a 20-level departure
in the circumstances of this case was unreasonable in extent. Chap-
man participated in a sham drug transaction that the record suggests
involved a minimal threat to his safety. He also set up a separate sham
transaction which Pearce consummated. Each of these transactions
resulted in a single arrest and at least one of them resulted in a convic-
tion. While Chapman's assistance was substantial, as acknowledged
by the government, it was not so substantial as to warrant a 20-level
departure, particularly when taking into account the government's
evaluation that the appropriate level of assistance for Chapman was
a three-level downward departure.
The district court appeared to downplay the government's recom-
mendation because it was the result of an internal policy whereby the
United States Attorney's office sought to give similar departure rec-
ommendations to defendants who had provided similar assistance. We
believe, however, that the existence of such a policy credits the gov-
ernment's recommendation because it suggests that the government
has made an effort to evaluate the assistance of defendants accurately
and consistently and to avoid arbitrary recommendations.
Accordingly, we also vacate Chapman's sentence and remand for
resentencing.
V
Chapman contends that even if the circumstances surrounding his
guilty plea in the 1990 South Carolina case do not constitute an
14
appropriate factor for consideration on a § 5K1.1 motion, they consti-
tute a relevant consideration for a downward departure under
U.S.S.G. § 4A1.3. That section states, "There may be cases where the
court concludes that a defendant's criminal history category signifi-
cantly over-represents the seriousness of a defendant's criminal his-
tory or the likelihood that the defendant will commit further crimes.
. . . The court may . . . therefore consider a downward departure from
the guidelines." And we have held that "a district court may, in an
atypical case, downwardly depart where career offender status over-
states the seriousness of the defendant's past conduct." United States
v. Adkins, 937 F.2d 947, 952 (4th Cir. 1991). Such departures, we
emphasized, "are reserved for the truly unusual case." Id.
The record shows that Chapman had two prior felony convictions
for drug violations that qualify him as a career offender. In 1985, he
was convicted in federal court for importation of marijuana and pos-
session of marijuana with intent to distribute and sentenced to five
years imprisonment. When he and his associates (one of whom was
Pearce) were arrested for these offenses, officers seized 980 pounds
of marijuana, a quantity of cocaine,3 a .38 caliber revolver, two .22
caliber handguns, two fully automatic inoperable machine guns, a
silencer, a 21-foot motor boat, two Ford pickup trucks, a travel-trailer,
and a 40-foot sailboat. He was indicted on 12 counts, but after he pled
guilty to 2 counts, 10 were dismissed.
While on parole for that 1985 conviction, Chapman was again con-
victed in 1988 by a jury in South Carolina state court of trafficking
in between 200 and 400 grams of cocaine. He was sentenced to 25
years in prison and a $100,000 fine. On appeal, the South Carolina
Supreme Court reversed this conviction without opinion and
remanded the case. Chapman was then reindicted on the charge of
possession with intent to distribute cocaine. In October 1990, he pled
guilty to this charge and was sentenced to time served, which was 25
months. Chapman now contends that he pled guilty to this charge
when he had a "defensible" case only because he wanted to get out
of state prison and to avoid problems with his federal parole. Accord-
_________________________________________________________________
3 Chapman's presentence report states that 73 grams of cocaine were
seized. Pearce's presentence report, detailing the same incident, states
that 7.3 grams of cocaine were seized.
15
ingly, he maintains that to include this offense as a predicate offense
for career offender status overstates his criminal history.
In addition to these two qualifying convictions, Chapman also
experienced problems complying with conditions of his federal
parole. In May 1991, his parole was revoked for reasons not revealed
in the record, and a 34-month confinement was imposed. The next
month, however, he was reparoled. He subsequently violated his spe-
cial parole by committing two separate offenses of disorderly conduct
and by testing positive for cocaine in September 1996 and May 1997.4
Chapman argues that his career offender status overstates his crimi-
nal history because his 1990 conviction should not be counted. To
make this argument, however, he has to go behind his 1990 convic-
tion. Even if, as he maintains, his case was defensible, a grand jury
did reindict him for a drug felony after the Supreme Court reversed
his earlier conviction, and he did plead guilty while represented by
counsel. Neither this court nor the district court can now retry that
case. See United States v. Kirksey, 138 F.3d 120, 124 (4th Cir. 1998)
("Neither Congress nor the Sentencing Commission intended to per-
mit sentencing courts to retry the facts of prior offenses"). And, as a
general rule, we will not look behind a conviction. See id. at 124-25
(discussing a limited exception to the general rule that courts will not
look behind a conviction in determining career offender status
because the sentence enhancement is "based on the official record of
prior convictions and not on any reconsideration of the facts"). More-
over, we "never [engage in] a factual inquiry into the facts previously
presented and tried." Id. (holding that even when a court looks behind
the conviction, it looks only to the charging document and the jury
instructions).
_________________________________________________________________
4 Chapman was also convicted in 1980 of possession with intent to dis-
tribute marijuana. This conviction resulted in a five-year suspended sen-
tence on the condition that he serve one year. However, because this one-
year sentence was imposed more than ten years prior to Chapman's
engagement in the instant offense, it is not relevant for career offender
classification, and we do not consider it. See U.S.S.G. § 4A1.1(b) com-
ment. (n.2), § 4A1.2(b), (e); see also U.S.S.G. § 4B1.2(c)(2) & comment.
(n.3) (stating that a conviction that does not count under § 4A1.1 will not
count toward career offender status).
16
With two prior, serious felony drug convictions, as well as his
parole violations, Chapman cannot sustain his claim that his record
overstates the seriousness of his past conduct or the likelihood of
future criminal conduct. Such an argument can be made, perhaps,
where a defendant has two relatively minor prior assault convictions
that do not suggest that the defendant is truly a"career offender." See
Adkins, 937 F.2d at 950-52 (remanding for consideration of a § 4A1.3
departure where defendant had two state law misdemeanor convic-
tions that were classified as felonies under federal law). But we can-
not conceive of any drug felony that would be considered minor. See
United States v. Brown, 23 F.3d 839, 840-42 (4th Cir. 1994) (holding
that a § 4A1.3 departure is not justified by the fact that a prior drug
conviction involved a small quantity of drugs); see also Adkins, 937
F.2d at 952 (noting that Congress deemed two types of recidivism,
including controlled substances "especially dangerous"). Chapman's
prior drug convictions, in particular, are quite serious. Because Chap-
man has been convicted of drug felonies on two occasions, he was
properly classified as a career offender. See U.S.S.G. § 4B1.1.
VI
In sum, we vacate the sentences of Pearce and Chapman and
remand for resentencing to permit the district court to reconsider the
government's § 5K1.1 motions for downward departure for substan-
tial assistance in light of this opinion.
REVERSED AND REMANDED FOR RESENTENCING
17