On Appeal From the United States District Court For the Eastern District of Pennsylvania (D.C. Crim. Action No. 96-cr-00299-1)
Before: Stapleton, Alito and Seitz, Circuit Judges
The opinion of the court was delivered by: Stapleton, Circuit Judge
Opinion Filed April 29, 1998
Defendant Juan Faulks entered into a plea agreement with the government which required him to cooperate in the investigation of individuals participating in the distribution of narcotics. In return for Faulks' assistance, the government agreed to file a motion pursuant to U.S.S.G. § 5K1.1 requesting a downward departure from the Sentencing Guidelines. Faulks asserts that the district court misapplied the Sentencing Guidelines because it granted the government's motion but, nevertheless, imposed a sentence within the applicable guideline range. Faulks also contends that the district court erred in declining to depart pursuant to U.S.S.G. § 5K2.0 based on his agreement not to oppose certain administrative forfeitures. Finally, Faulks submits that the district court erred in finding that the controlled substance he distributed was crack cocaine.
We will remand for further sentencing proceedings.
On two occasions in 1996, Faulks sold approximately eleven and one half ounces of cocaine base to a confidential informant. He was later arrested and charged with two counts of distributing a "substance containing cocaine base (crack)" in violation of 21 U.S.C. § 841(a)(1), two counts of money laundering in violation of 18 U.S.C. § 1956, one count of criminal forfeiture of real property pursuant to 18 U.S.C. § 982, and four counts of criminal forfeiture of personal property pursuant to 21 U.S.C. § 853. App. at 8-9.
Faulks entered into a plea agreement which required him to plead guilty to the counts of cocaine distribution, money laundering and criminal forfeiture of real property. The government agreed to dismiss the remaining counts of criminal forfeiture in return for Faulks' acquiescence in the administrative forfeiture of the personal property described in the indictment. It also committed itself to:
[m]ake a motion to allow the Court to depart from the Sentencing Guidelines pursuant to Sentencing Guidelines § 5K1.1, and to impose a sentence below any mandatory minimum term of imprisonment pursuant to 18 U.S.C. § 3553(e), if the government, in its sole discretion, determines that the defendant has provided substantial assistance in the investigation or prosecution of another person who has committed an offense.
When Faulks entered his guilty pleas, the court asked him at the outset to identify the charges to which he wished to plead guilty. He responded, "Two counts of distribution of crack cocaine, and forfeiture of my home, and to money laundering." App. at 45. Thereafter, the government made a proffer of evidence during which the prosecutor consistently and on six occasions referred to the substance distributed by Faulks as "crack cocaine." She reported during the proffer that the substance purchased by the informant on both occasions was tested by the DEA lab and determined to be "crack cocaine base." App. at 49-50. After the proffer, with one exception not here relevant, both Faulks and his counsel expressly confirmed that the government's version of the facts was substantially correct.
The Presentence Investigation Report ("PSI") calculated the guideline range to be 87 to 108 months. This calculation assumed that the substance distributed was crack cocaine and that Faulks was entitled to escape the ten-year mandatory minimum provisions of 21 U.S.C. § 841(b)(1)(A) under the safety valve provisions of U.S.S.G. ...