Appeal from the United States District Court for the Western District of Pennsylvania, D.C. Criminal No. 88-159.
Dennis Hiler, defendant, appeals a sentence imposed under the sentencing guidelines promulgated by the Sentencing Commission pursuant to 28 U.S.C. §§ 991-998 (Supp. II 1984). We review defendant's sentence under 18 U.S.C. § 3742(a)(2) (1988).
Defendant pled guilty to the charge of conspiracy to possess with intent to distribute cocaine in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B)(ii), 846 (1988) pursuant to a plea agreement with the government. As part of that plea bargain, the government agreed to bring defendant's cooperation to the attention of the sentencing court at the time of sentencing. The agreement also provided that the government, in its discretion, either before defendant's sentencing or up to one year thereafter, could file a motion under § 5K1.1 of the sentencing guidelines. Such a motion would permit the district court to reduce defendant's sentence below the guideline range based on defendant's cooperation. See United States Sentencing Commission, Guidelines Manual, § 5K1.1 (Oct. 1988).*fn1
At a sentencing hearing, the government detailed the extent of defendant's cooperation up to that point in time, but it did not file a motion under § 5K1.1. The court determined that the guidelines provided a range for defendant's crime of between 63 and 78 months and sentenced defendant to 72 months of imprisonment. The court also imposed a $50.00 special assessment*fn2 and five years of supervised release following imprisonment.
Refusal to Adjust Sentence within the Guideline Range
Defendant argues that the district court erred in sentencing him because it failed to consider his cooperation with the government up to the date of sentencing. The plea agreement did require the government to inform the sentencing court of the assistance provided by defendant. This it did. But it is not necessary to consider whether, as defendant argues, the cooperation provision of the plea agreement required the sentencing court to consider the cooperation factor, at least when imposing a sentence within the guideline range. This is so because 18 U.S.C. § 3661 (1988) provides: "No limitation shall be placed on the information concerning the background, character, and conduct of a person convicted of an offense which a court of the United States may receive and consider for the purpose of imposing an appropriate sentence." Given the section's purpose to inform the sentencing judge of the pertinent circumstances, we believe the "information" which a district court may consider includes information tendered by a defendant. We are also satisfied, in view of § 3661's global language, that its "conduct" provision embraces cooperation by a defendant. See United States v. Newsome, 894 F.2d 852, slip op. at 10 (6th Cir. 1990); United States v. Huerta, 878 F.2d 89, 93 (2d Cir. 1989) (dictum), cert. denied, 493 U.S. 1046, 110 S. Ct. 845, 107 L. Ed. 2d 839 (1990); see also Roberts v. United States, 445 U.S. 552, 63 L. Ed. 2d 622, 100 S. Ct. 1358 (1980) (pre-guideline case concluding that refusal to cooperate may be considered in sentencing).
Thus, under our reading of the statute, the district court was required to consider defendant's cooperation when sentencing within the guideline range, though it retained discretion as to whether to give effect to that cooperation. Nothing in the Sentencing Reform Act of 1984 or in the guidelines is to the contrary. We are not called upon to decide a case in which consideration of information tendered under § 3661 would be made irrelevant to adjustment within the guideline range by some section of the guidelines.
Defendant contends that the district court refused to consider his cooperation as a factor going to a reduction of his sentence because it believed it was without power to do so in the absence of a motion by the government under § 5K1.1.*fn3 The government, on the other hand, asserts that the court recognized its power to consider cooperation within the guideline range and did consider it, but refused to exercise its discretion affirmatively. If defendant is correct, the district court erroneously concluded that it lacked power to consider defendant's cooperation within the guideline range, and we will have to vacate defendant's sentence. We turn to the record.
The district court held three hearings in connection with the sentencing. The government points to statements by the court at the second hearing held on May 15, 1989, when it said: "The ruling is that at this point I will consider his cooperation only within the guideline range, and that if and when a motion is filed with the Court, then I will consider a downward departure." However, at the final sentencing hearing on July 6, 1989, after defendant's counsel asked the court to consider defendant's cooperation, the court stated:
Well, I don't think it's fair to give Mr. Hiler a double-dip. [The prosecutor] is going to weigh that when he files [a motion under § 5K1.1] -- if he does.
So, for me to take that into consideration at this point, when it's going to be taken into consideration in due course, would give Mr. Hiler an unfair double-dip as to cooperation.
The court reiterated its position in response to a request by defendant's counsel, Mr. White, that ...