filed: February 12, 1993; As Corrected April 12, 1993.
On Appeal From the United States District Court for the Western District of Pennsylvania. (D.C. Crim. No. 91-00197-01).
Before: Becker, Alito and Garth, Circuit Judges.
Under § 5K1.1 of the Sentencing Guidelines, district courts may grant a downward departure "upon motion of the government stating that the defendant has provided substantial assistance in the investigation or prosecution of another person who has committed an offense." U.S.S.G. § 5K1.1. This appeal from the judgment of the district court presents the question whether § 5K1.1 applies to assistance to any governmental authorities, including state and local authorities, or only to federal authorities. We agree with the Conclusion of the district court that § 5K1.1 applies to assistance to any governmental authorities, hence we affirm.
Love pled guilty to two counts of interstate transportation of stolen motor vehicles, in violation of 18 U.S.C. §§ 2312 & 2. He was sentenced by the district court to 24 months in prison, the low end of the applicable Guidelines sentencing range.*fn1
Before the sentencing hearing, Love submitted the affidavit of an Allegheny County police officer describing Love's assistance to state authorities for the preceding two and one-half years in the investigation and prosecution of a large number of criminal cases. At sentencing, Love requested a downward departure from his Guidelines range based on his assistance to state authorities, but the federal prosecutor declined to file a substantial assistance motion pursuant to § 5K1.1 of the Guidelines.*fn2 The government expressed the view that a downward departure would be inappropriate since Love's cooperation with state authorities occurred during the same time period as his offense in this case. The government also told the court that the government had no independent knowledge of Love's cooperation with state authorities other than from reading the affidavit.
Although the district court found "unrefuted evidence of record that the defendant had provided substantial assistance to the Commonwealth of Pennsylvania" in the investigation and prosecution of others who had committed criminal offenses, the court denied Love's request for a downward departure because the government had not filed a substantial assistance motion, as required by § 5K1.1, and because the court believed it lacked independent authority to depart downward based on evidence of substantial assistance to state authorities. However, the court delayed the date on which Love would begin serving his sentence until the court of appeals had reviewed this "issue of significant policy impact."*fn3
Love argues that, in spite of the absence of a government motion, the district court had authority to depart downward under the general departure provision of Guidelines § 5K2.0 because Love's assistance to state authorities is a "mitigating circumstance of a kind, or to a degree, not otherwise taken into consideration by the Sentencing Commission in formulating the Guidelines." U.S.S.G. § 5K2.0.*fn4 Love also argues that the circumstances in this case make it an "atypical case" in which the district court may independently depart from the Guidelines under § 5K2.0 even though the reason for departure is taken into consideration in the Guidelines because "in light of unusual circumstances, the guideline level attached to that factor is inadequate." U.S.S.G. § 5K2.0. See also U.S.S.G. Ch. 1, Pt. A, intro. 4(b) ("When a court finds an atypical case, one to which a particular guideline linguistically applies but where conduct significantly differs from the norm, the court may consider whether a departure is warranted.").
The government responds that it is clear from the plain language of § 5K1.1 that the provision applies to assistance to all governmental authorities, federal, state and local. Because assistance to state authorities is a factor specifically taken into consideration in Guidelines § 5K1.1, such assistance, the government contends, cannot be a basis for a § 5K2.0 departure. The government also submits that Love's "atypicality" argument is misplaced because, under § 5K1.1, the district court lacks authority to depart for substantial assistance without a government motion, regardless of the circumstances.
We agree with the government. 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. The provision is entitled "Substantial Assistance to Authorities," and describes the assistance as "substantial assistance in the investigation or prosecution of another person who has committed an offense." See U.S.S.G. § 5K1.1. There is no suggestion that the offense need be a federal offense or that the investigators need be federal authorities. The application notes and background commentary, like the provision itself, ...