United States v. Jones

Opinions of the United

2004 Decisions States Court of Appeals

for the Third Circuit

8-27-2004

USA v. Jones

Precedential or Non-Precedential: Precedential

Docket No. 03-1411

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PRECEDENTIAL David L. McColgin (Argued)

Assistant Federal Defender

UNITED STATES COURT OF Supervising Appellate Attorney

APPEALS FOR THE THIRD CIRCUIT Maureen Kearney Rowley

Chief Federal Defender

Robert Epstein

Federal Court Division

No. 03-1411 Defender Association of Philadelphia

Philadelphia, PA 19106

Attorneys for Appellant

UNITED STATES OF AMERICA

Patrick L. Meehan

v. United States Attorney

Laurie Magid

GARY W. JONES, Deputy United States Attorney

Appellant for Policy and Appeals

Robert A. Zauzmer

Assistant United States Attorney

Senior Appellate Counsel

On Appeal from the United States Peter D. Hardy(Argued)

District Court Catherine Votaw

for the Eastern District of Pennsylvania Assistant United States Attorneys

(D.C. Criminal No. 02-cr-00575) Philadelphia, PA 19106

District Judge: Hon. Eduardo C.

Robreno Attorneys for Appellee

Argued March 11, 2004 OPINION OF THE COURT

Before: SLOVITER and NYGAARD,

Circuit Judges, and SHADUR, District SLOVITER, Circuit Judge.

Judge*

Appellant states that the issue

(Filed: August 27, 2004) before us is “[w]hether the district court

had the authority under U.S.S.G. § 5K2.0

to grant a downward departure, in the

absence of a government motion, on the

*

H o n . M i l t o n I. Shad ur, U nite d basis of Mr. Jones’s substantial assistance

States District Court Judge for the in two civil matters.” We see the issue

Northern District of Illinois, sitting by differently, albeit related. The answer to

designation. the issue posed by appellant is clear – a

district court may depart under U.S.S.G. The Braids hired a new financial

Section 5K2.0 without a Government adviser who discovered the theft in

motion, and to the extent that the District October 1999 and they informed the FBI

Court in this case said otherwise, it and the SEC, which began investigating

misspoke. The more difficult question Jones. Jones eventually admitted his

raised by this appeal is whether appellant’s embezzlement and began cooperating with

assistance was a factor that falls within the the authorities in investigating IRL. Jones

scope of Section 5K2.0. states that in the course of assisting the

authorities, he made 60-70 phone calls,

I. two of which were monitored; attended

15-20 meetings; and wore a body wire for

From October 1998 to April 1999, the FBI during a meeting. After the FBI

Jones embezzled $236,626 in retirement decided not to pursue a criminal

funds from Arthur and Selma Braid, an investigation of IRL in August 2000, Jones

elderly couple for whom Jones worked as remained in contact with the SEC

an accountant and financial advisor. Jones regarding IRL until November 2000.

accomplished this crime by forging Mr. Jones alleges that he provided substantial

Braid’s signature on checks from Fidelity assistance, even purchasing a copy

Investments, where the Braids maintained machine from his own funds to copy

their retirement funds, and depositing the thousands of pages of relevant documents

checks into his own account. Also, during to present to the SEC, traveled to the

this period Jones advised the couple to Philippines to investigate IRL abroad, and

invest $10,000 and Jones himself invested provided three to four hours of testimony

his own funds and M r. Braid’s stolen under oath “as part of the investigation of

retirement funds in International Recovery, this company,” which he believed had

Limited (IRL) for what turned out to be a “broken some laws and would be subject

fruitless venture. Mr. Braid later sued to some kind of p[ro]secution for that.”

Fidelity, but recouped less than half of the App. at 31a-32a, 45a-46a. Jones concedes,

embezzled funds. 1 however, that he undertook many of these

efforts without having been instructed to

do so by the Government. Jones contends

1 that IRL stopped soliciting investors and

Fidelity paid Mr. Braid $125,000,

went out of business, in part, because of

and was reimbursed by its insurance

his actions. An SEC representative

company. The Braids’ losses exceeded the

informed the Government that it “never

amount of the embezzled funds as they

acted on the defendant’s statements

incurred legal expenses in seeking to

because they could not be corroborated.”

recoup the loss and were required to pay

Supp. App. at 3.

back taxes, penalties and interest, because

Jones failed to file their Pennsylvania tax

The Government indicted Jones for

returns for six or seven years.

2

bank fraud pursuant to 18 U.S.C. § 1344 Section 5K2.0 motion for a downward

and he pled guilty on October 24, 2002. departure, stating:

Jones moved for a downward departure

based on, inter alia,2 his cooperation with [D]istrict courts have no

the SEC and FBI in reporting IRL’s authority to grant substantial

activities, unco vering its financial departures under 5K2.0 in

“inaccuracies and misappropriations,” and the absence of a

exposing “undercover embezzling” by Government motion under

officers of the corporation. App. at 102a- 5K1.1. And in this case,

04a. Jones also argued that Mr. Braid there has been no motion

received a settlement from Fidelity, based under 5K1.1.

in part on his assistance and willingness to

testify, which provided additional grounds Additionally, there is no

for a downward departure. claim of unconstitutional

motive or discrimination or

Critically, Jones moved for this bad faith on the part of the

downward departure pursuant to U.S. Government.

Sentencing Guideline Section 5K2.0.

Section 5K2.0 permits departures for I think to the extent

“mitigating circumstance[s] . . . not that the defendant has

adequately taken into consideration by the cooperated, that should be

Sentencing Commission”; it does not taken care of and the

require a supporting motion from the defendant should be credited

Government, as is required for a motion with in the senten cin g

for substantial assistance under Section guid elines for his

5K1.1. The Government opposed Jones’ cooperation with the SEC

motion, arguing that he was not eligible and all the other efforts that

for a Section 5K2.0 departure because he have been outlined here.

had not alleged unconstitutional motive or

bad faith acts by the Government. And finally, I find

that the combination of all

The District Court denied Jones’ of those factors do not

warrant a departure under

Koon versus the United

2 States. And, again, I

Jones also argued that a departure

recognize that I have the

was warranted because of his post-offense

power to depart as a result

rehabilitation (alcoholism recovery) and

of a combination of these

his ability to make restitution to his victims

factors, but I find that this is

if he were not jailed. These grounds are

a case which does not

not at issue on appeal.

3

warrant or justify it States v. Dominguez, 296 F.3d 192, 195

and it’s not an (3d Cir. 2002) (holding that district court

appropriate case for had authority to grant Section 5K2.0

the exercise of that downward departure despite Government’s

discretion. opposition); see also United States v.

Vitale, 159 F.3d 810, 813 (3d Cir. 1998)

App. at 74a-75a. (noting that district court granted

defendant’s § 5K2.0 departure, without

The District Court sentenced Jones mention of Government support or

to imprisonment for 18 months and opposition thereto).

required him to make restitution to the

Braids. Jones timely appealed.3 The more difficult question raised

by this case is whether a defendant’s

II. assistance in connection with a civil

investigation or case falls within the scope

Jones’ primary contention on appeal of Section 5K2.0, as Jones contends, rather

is that the District Court improperly held than within the scope of Section 5K1.1.

that it did not have authority to grant a Jones contends that his assistance to the

downward departure under Section 5K2.0 SEC took him outside the ambit of Section

without an accompanying motion by the 5K1.1. Jones argues that we should

Government in support. Inasmuch as this confine the supporting motion requirement

presents a legal issue, we review the of Section 5K1.1 to substantial assistance

District Court’s conclusions of law de on criminal matters and that we should

novo. United States v. Abuhouran, 161 hold that the district courts have the

F.3d 206, 209 (3d Cir. 1998). discretion to grant departures for

assistance in civil matters under Section

Departures pursuant to Section 5K2.0, which does not require a

5K2.0 do not hinge upon a Government’s supporting Government motion.

motion in support thereof. U.S. Sentencing Guideline Section

Sentencing Guidelines Manual § 5K2.0. 5K2.0, as it applied to Jones, provided in

There is no such requirement in the part:

Guideline, and courts that have granted § 5K2.0 Grounds for Departure

such departures have done so without any (Policy Statement)

Government motion. See, e.g., Koon v.

United States, 518 U.S. 81 (1996); United Under 18 U.S.C. § 3553(b)

the sentencing court may

impose a sentence outside

3 the range established by the

W e h a v e j u r i sd i c t io n o v e r this

applicable guideline, if the

matter pursuant to 28 U.S.C. § 1291 and

court finds “that there exists

18 U.S.C. § 3742(a).

4

an aggravating or range may be relevant to

m i t i g a t i n g this determination if such

circumstance of a characteristic or

kind, or to a degree, circumstance is present to

not adequately taken an unusual degree and

into consideration by distinguishes the case from

the Sentencing t h e “ he a r tla nd” c as e s

Com m i s s io n in covered by the guidelines.

f o r m u l a t in g t h e

g u i d e l in e s t h a t

should result in a

sentence different U.S. Sentencing Guidelines Manual §

from that described.” 5K2.0.4

. . . [T]he court may

depart from the In Koon, the Supreme Court, in a

g u i d e l i n e, e v e n thorough discussion of Section 5K2.0,

though the reason for stated that although Section 5K2.0 does

departure is taken not impose a “limit on the number of

into consideration in potential factors that may warrant

the guideline range departure,” 518 U.S. at 106 (quoting Burns

(e.g., as a specific v. United States, 501 U.S. 129, 136-37

offense characteristic (1991)), downward departure factors may

or other adjustment), be categorized as falling into four primary

if the court groups: factors that are prohibited,

determines that, in encouraged, discouraged, or unmentioned.

light of unusual Koon, 518 U.S. at 94-95. Consideration of

circumstances, the

weight attached to

that factor under the 4

A l t h o u g h S e c t io n 5 K 2 . 0 w a s

guidelines is

amended in 2003 by the Prosecutorial

inadequate or

Remedies and Tools Against the

excessive....

Exploitation of Children Today Act of

2003 (PROTECT Act), Pub. L. No. 108-

[A]n offender characteristic

21, § 401(m)(2)(A), 117 Stat. 650, 675

or other circumstance that is

(Apr. 30, 2003), this amendment does not

in the Commission’s view,

apply to Jones, whose criminal conduct

“not ordinarily relevant” in

occurred and who was sentenced prior to

determining wh ether a

the amendment. The amendments do not

sentence should be outside

change the substance as applicable to

the applicable guideline

Jones.

5

substantial assistance in civil matters is not become overly-involved in executive and

prohibited, encouraged, or discouraged. investigative functions. Id. at 216. In both

Substantial assistance in civil matters is an of those instances, the departure at issue

unmentioned factor and thus this court was sought under Section 5K1.1.

“must, after considering the ‘structure and

theory of both relevant individual However, we acknowledged that

guidelines and the Guidelines taken as a other courts have recognized a third

whole,’ decide whether it is sufficient to category of cases in which a downward

take the case out of the Guideline’s departure for substantial assistance is

heartland.” Id. (quoting United States v. possible under Section 5K2.0 in the

Rivera, 994 F.2d 942, 949 (1st Cir. 1993)). absence of a Government motion. We

explained:

This court has not yet addressed the

issue whether assistance in civil matters Some cases have found that

falls within Section 5K2.0. In United a departure is permitted

States v. Abuhouran, 161 F.3d 206 (3d Cir. under § 5K2.0 in the

1998), we considered a somewhat related absence of a government

issue: whether Section 5K2.0 gave the mo tion for subs tantial

district court the authority to depart assistance to branches of

downward in a criminal case on the ground government other than those

that defendant offered su bstan tial that engage in prosecutorial

assistance to the Government even though a c t iv it i e s w h e n t h e

the Government had not moved for the assistance does not involve

departure under Section 5K1.1. In “ t h e i n v e st i g a ti o n o r

rejecting the defendant’s claim, we noted prosecution of an other

we had recognized only two “extraordinary person who has committed

circumstances” in which a district court an offense.” See, e.g.,

may depart from the Guidelines without United States v. Sanchez,

governmental acquiescence: where the 927 F.2d 1092, 1093-94 (9th

Government refused to file a substantial Cir. 1991) (assistance in the

a ssi st a n ce mo tio n based on an prosecution of a civil

unconstitutional motive, id. at 212 (citing forfeiture case); United

Wade v. United States, 504 U.S. 181 States v. Khan, 920 F.2d

(1992)); and where the Government acted 1100, 1107 (2d Cir. 1990)

in bad faith with regard to a plea (assistance in rescuing an

agreement, id. (United States v. Isaac, 141 informant kidnapped by

F.3d 477, 484 (3d Cir. 1998)). We foreign drug dealers);

reasoned that such a limited construction United States v. Stoffberg,

was necessary to ensure that the judiciary 782 F.Supp. 17, 19

not be forced to police prosecutors or (E.D.N.Y. 1992) (assistance

6

to a congressional assistance in connection with a civil

committee). matter, which he contends is cognizable

only under Section 5K2.0.

Abuhouran, 161 F.3d at 212 n.5. Although

we acknowledged this line of cases, we Jones would have us limit Section

declined to address the merits of the cases 5K1.1 to assistance in criminal

because the defendant in the case before us investigations. Application Note 1

on appeal had provided assistance “to the provides that “substantial assistance in the

executive branch in furtherance of its law investigation or prosecution of another

enforcement responsibilities.” Id. (citation person who has committed an offense may

omitted). Nonetheless, we declined to justify a sentence below a statutorily

foreclose this third exception, stating that required minimum sentence,” while

Section 5K2.0 departures are permissible Application Note 2 explains that

where the Government has acted with an “[s]ubstantial assistance is directed to the

unconstitutional motive, in bad faith with investigation and prosecution of criminal

regard to a plea agreement, “and possibly activities by persons other than the

those [cases] in which the assistance is not defendant.” U.S. Sentencing Guidelines

of the sort covered by § 5K1.1.” Id. at Manual § 5K1.1, cmt. nn. 1, 2. Also, the

214. Because the defendant in Abuhouran Background note refers to assistance in

did not qualify for any of the exceptions criminal investigations, stating that “[a]

and he conceded that his assistance defendant’s assistance to authorities in the

involved purely criminal investigations investigation of criminal activities has

and prosecutions, we concluded that he been recognized in practice and by statute

was not eligible for a departure under as a mitigating sentencing factor.” Id. at

Section 5K2.0. cmt. background. None o f the

commentary is preclusive of assistance

Section 5K1.1 provides that, beyond that to the criminal investigators.

“[u]pon motion of the government stating In fact, a portion of the Background note

that the defendant has provided substantial suggests a broader scope, as it states that,

assistance in the investigation or “[t]he nature, extent, and significance of

prosecution of another person who has assistance can involve a broad spectrum of

committed an offense, the court may conduct that must be evaluated by the

depart from the guidelines.” U.S. court on an individual basis.” Id. Jones’

Sentencing Guidelines Manual § 5K1.1. argument that the only assistance that can

The bare text of Section 5K1.1 is thus be considered under Section 5K1.1 is to

silent as to what type or types of assistance investigation of a person’s criminal

it includes. In the instant case, Jones activities is unpersuasive. After all, what

posits a sharp demarcation between is at issue are Sentencing Guidelines,

assistance in connection with a criminal applicable only to sentencing for “criminal

matter, the realm of Section 5K1.1, and activities.”

7

Jones calls our attention to case law Khan, 920 F.2d at 1107. The court did not

from the Courts of Appeals for the Second, actually decide the departure should have

Ninth, and Sixth Circuits supporting the been granted because the defendant had

c o n c l u s i o n t h a t S e ct i o n 5 K 2 .0 waived this argument by failing to alert the

encompasses assistance that was not district court at sentencing of these

provided in the in vestigation or activities. Shortly thereafter, the same

prosecution of another person even though court clarified its discussion in Khan by

it trenched on an underlying criminal stating that Khan limited this exception to

matter. In United States v. Khan, 920 F.2d “assistance to the Government other than

1100 (2d Cir. 1990), cert. denied, 499 U.S. the supplying of information relevant to

969 (1991), the court stated that a the prosecution of other individuals, e.g.,

departure under Section 5K2.0, without a assistance by the defendant that allegedly

Government motion, might be appropriate saved the life of a Government agent.”

where the defendant saved the life of a United States v. Agu, 949 F.2d 63, 67 (2d

kidnapped confidential informant because Cir. 1991).

the Sentencing Guidelines did not readily

provide a basis to account for such heroic In United States v. Sanchez, 927

efforts. Id. at 1107. The court stated that F.2d 1092 (9th Cir. 1991) (per curiam), the

a Section 5K2.0 departure may be Court of Appeals for the Ninth Circuit

available: held that assistance provided in a civil

forfeiture proceeding was not “substantial

where the defendant offers assistance” within the meaning of Section

i n f o r m a ti o n r e g a r d i n g 5K1.1. Although the defendant argued

actions [the defendant] took, that the district court had declined to grant

which could not be used by a Section 5K2.0 motion based on its belief

the government to prosecute that it lacked the authority to do so without

other individuals (rendering a Government motion in support thereof,

§ 5K1.1 inapplicable), but the court found no indication in the record

which could be construed as that the sentencing judge believed a

a “mitigating circumstance” downward departure under Section 5K2.0

for purposes of § 5K2.0. was impermissible and thus affirmed the

See Guidelines § 5K1.1, decision without clearly stating that

Commentary, Application assistance in civil forfeitures actions could

No te 2 (“Substa ntial be grounds for a Section 5K2.0 departure.

assistance is directed to the Id. at 1093-94. We need not express our

investigation and view of the holdings in these cases because

prosecution of criminal they do not discuss the situation in Jones’

activities by persons other case, where the investigation in which he

than the defendant”). provided assistance was both criminal and

civil.

8

Jones relies heavily on United defendant substan tially assisted in

States v. Truman, 304 F.3d 586 (6th Cir. proceedings “other than [those] toward the

2002), which did not arise under the joint prosecution of another person,” Section

or sequential investigation scenario. The 5K1.1 and its requirement of a

defendant in Truman, who had been Government motion do not apply. Id. The

caught attempting to sell drugs he stole Sixth Circuit also stated that a Section

from the pharmaceutical laboratory where 5K2.0 departure may have been warranted,

he worked, assisted the Government in apart from the acceptance of responsibility

exposing security lapses at the laboratory. departure that he received, because the

Drug Enforcement Agency (DEA) agents defendant’s cooperation in developing

shared this info rmatio n with the “prophylactic measures” to prevent future

laboratory, which then corrected and lab thefts had “extend[ed] beyond the

upgraded its security procedures based on garden variety acceptance of responsibility

the defendant’s identification of risk areas. and thus was either not taken into account

The defendant highlighted his significant by the Guidelines or was accounted for in

assistance to DEA investigators in their the Guidelines but was present in this case

effort to upgrade the lab’s security to an exceptional degree.” Id. at 592. The

procedures as grounds for departure. court thus clarified that on remand, the

Critically, he moved for a departure under district court was not bound by Section

Section 5K2.0, rather than Section 5K1.1, 5K1.1 and could determine if a Section

which would have required a Government 5K2.0 departure was, in fact, appropriate.

motion. Id.

The district court concluded that, Jones contends that his case is

absent a motion from the Government to analogous to the Truman case where the

depart, it lacked the discretion to grant defendant’s assistance did not lead to the

defendant a downward departure for investigation or prosecution of any party

“assistance offered by a defendant which for criminal matters. In fact, Jones’ case is

did not result in the investigation or distinguishable from Truman because it

prosecution of another individual.” Id. at does not appear that the laboratory in

587. The Court of Appeals for the Sixth Truman was the subject of a criminal

Circuit vacated and reversed the district investigation. The DEA was interested in

court decision, reasoning that Section preventing other potential wrongdoers

5K1.1 applies only to substantial from defeating the lab’s security systems

assistance for “the investigation and in the future, and it was in that connection

prosecution of another individual who has that Truman offered assistance. By

committed a crime,” based on Section contrast, here Jones alleges that IRL had

5K1.1’s commentary and description of “broken some laws and would be subject

assistance in “criminal” matters. Id. at to some kind of p[ro]secution for that.”

590. The court thus concluded that if a App. at 45a. It is in that connection,

9

clearly covered by Section 5K1.1, that the criminal prosecution does not

Jones proffered his assistance. constitute the type of extraordinary factor

contemplated by Section 5K2.0 or Koon.

At sentencing, the Assistant United This is not a situation as presented in

States Attorney conceded that Jones Truman where the assistance given by the

provided some assistance but stated that it defendant was unrelated to any prospective

could not be corroborated and therefore investigation into criminal actions by a

did not lead to any action by the person other than the defendant. In this

Government. App. at 80a. An FBI agent case, although the assistance which Jones

testified at sentencing to the same effect. relies on was to the SEC it was, in fact,

He stated that Jones wore a wire as related to a criminal investigation.

requested, and that he did what he said he

would do but the information provided As the Government emphasizes,

was not helpful. Jones assisted both the SEC and the FBI in

connection with a criminal investigation

The District Court declined to into fraud and securities violations. The

exercise its discretion to grant a downward Government points out that Jones’ own

departure. The court stated: motion for a downward departure

described his assistance to the SEC as

[T]here is no claim of based on his belief that IRL had “broken

unconstitutional motive or some laws” and committed “offenses”

discrimination or bad faith based o n “ i n a c curacies and

o n t h e pa r t o f t h e misappropriations” in financial statements

Government. and that a corporate officer had been

“embezzling” funds. App. at 45a, 103a.

I think to the extent The Government contends that these

that the defendant has allegations could only be construed as

cooperated, that should be “allegations of crimes.” Gov’t Br. at 39.

taken care of and the

defendant should be credited Lastly, the Government contends

wit hin the sentencing that we have previously interpreted

guidelines for his Section 5K1.1 to encompass assistance to

cooperation with the SEC all “authorities.” Gov’t Br. at 49. The

and all the other efforts that Government relies upon United States v.

have been outlined here. Love, 985 F.2d 732 (3d Cir. 1993), in

which we held that Section 5K1.1 applied

App. at 74a. to both federal and state authorities

because nothing in Ҥ 5K1.1 or in the

On appeal, the Government argues accompanying commentary [suggests] that

that cooperation in a civil suit related to the Commission meant to limit ‘assistance

10

to authorities’ to assistance to federal against this company [IRL].” App. at 31a.

authorities.” Id. at 734. In the same vein, Again, he stated,

the Government highlights a district court

decision from Virginia in which that court And – and, in fact,

rejected a defendant’s motion for a Judge, as you read through

downward departure under Section 5K2.0 t h e l i n e s h e r e , h is

based on his assistance to the SEC and cooperation with the FBI

foreign authorities. The court found that and later with the Securities

while those agencies were not involved in and Exchange Commission,

prosecuting offenses, the Sentencing a g a i n , t h o u s a nd s a n d

Commission likely assumed that Section thousands of boxes of

5K1.1 would encompass cooperation with documents, he copies for the

“a variety of government organizations,” SEC in their investigations.

including the SEC. United States v.

Dowdell, 272 F.Supp. 2d 583, 594 App. at 31a. Jones himself stated similarly

(W.D.Va. 2003), reconsideration granted at sentencing:

in part on other grounds, 2003 WL

22439643 (W.D.Va. Oct. 28, 2003). Following the work with

Special Agent Cosgraf and

Jones does not dispute that the SEC the FBI, it was immediately

may qualify as an authority to which followed by the Securities

substantial assistance can be provided in and Exchange Commission

criminal investigations, nor that the list of with a subpoena from them,

authorities may be expanded beyond the which required photocopies

federal government; instead, he argues that of an extreme amount of

he assisted the SEC in pursuing a civil documentation that was in –

investigation, a circumstance not in my files. There was –

contemplated by Love or Dowdell. there was probably well

over – you know – two

Jones can hardly argue that the transfer files full, that was –

SEC’s investigation was unrelated to the that was photocopied.

potential criminal action. At sentencing,

Jones’ lawyer stated not once but twice App. at 46a.

that Jones’ assistance to the two

government investigations was sequential. In light of Jones’ position in the

He stated that Jones bought the copy District Court, we need not remand for any

machine “so that he could copy the factual findings as to the relatedness of the

documents and get them to the FBI and FBI and SEC investigations because the

later to the Securities and Exchange record of such relatedness is clear. The

Commission as part of the investigation fact that the FBI discontinued its

11

investigation while Jones continued his within the heartland of a separate

assistance to the SEC does not negate the Guideline provision cannot be the basis of

interconnection between the investigations a departure under Section 5K2.0.

by both Government authorities. For Although substantial assistance in civil

example, had the SEC investigation matters may be recognized under Section

ultimately uncovered criminal acts by IRL, 5K2.0, we need not decide that issue under

there can be no doubt that those facts the facts of this case. Because Jones’

would have been transmitted to the FBI for cooperation fell within Section 5K1.1 (had

its consideration for future prosecution. the assistance been sufficiently substantial

to warrant the Government’s motion to

The p r e s e n te n c e r e p o rt depart) and Section 3E1.1, it was not

recommended that Jones’ cooperation be appropriate for consideration under

taken into account under U.S. Sentencing Section 5K2.0. We reject Jones’

Guideline Section 3E1.1 providing that a contention that the District Court erred as

district court may decrease a defendant’s a matter of law in denying his motion for

offense level “[i]f the defendant clearly departure under Section 5K2.0.

demonstrates acceptance of responsibility

for his [or her] offense,” which may be III.

demonstrated by, inter alia, “voluntary

assistance to authorities in the recovery of For the reasons set forth above, we

the fruits and instrumentalities of the will affirm the judgment of the District

offense.” U.S. Sentencing Guidelines Court.

Manual § 3E1.1 & cmt. n.1(e). The

District Court stated that it was doing so.

See App. at 74a (District Court stating, “I

think to the extent that the defendant has

cooperated, that should be taken care of

and the defendant should be credited

within the sentencing guidelines for his

cooperation with the SEC and all the other

efforts that have been outlined []”); App.

at 89a (District Court stating that Jones

“undertook efforts to cooperate with the

Government and provided reliable and

truthful information, however, it was not

significant enough to earn a 5K1[.1]

departure. Nevertheless, [] he should be

credited with that – with that effort”).

Under Koon, a factor that fits

12