# United States v. Thomas A. Demonte > Court of Appeals for the Sixth Circuit · August 25, 1994 · 25 F.3d 343 URL: https://www.frixlaw.com/law-library/cases/9486805 ## Case - **Full name:** UNITED STATES of America, Plaintiff-Appellant, v. Thomas A. DeMONTE, Defendant-Appellee - **Court:** Court of Appeals for the Sixth Circuit - **Decided:** August 25, 1994 - **Citations:** 25 F.3d 343; 1994 WL 233963 - **Precedential status:** Published - **Opinion:** Concurring in part by Batchelder - **Judges:** Jones, Batchelder, Celebrezze - **Cited by:** 11 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9486805 ## How later opinions describe it (automated extraction) - stating that “we have acknowledged that restitu-tionary payments may constitute ‘exceptional circumstances’ that justify a downward departure” (citing United States v. Brewer, 899 F.2d 503, 509 (6th Cir.1990)) - rejecting departure based on restitution in this case while recognizing extraordinary restitution may be ground for departure but holding that defendant’s extraordinary cooperation in revealing criminal conduct of which the government was wholly unaware warranted departure und… ## Opinion text BATCHELDER, Circuit Judge, concurring in part and dissenting in part. While I agree with Judge Jones that De-Monte’s restitution in this case cannot support the downward departure taken by the district court, I do not agree that DeMonte’s cooperation with the government was sufficiently unusual to support the downward departure. I therefore dissent. The majority’s view on the cooperation issue is wholly unsupportable. The majority writes, While DeMonte’s admission that he committed a prior theft of which the government was completely unaware was formally required under the terms of the Plea Agreement, it was nevertheless a manifestation of an unusual willingness to cooperate. First, DeMonte could have bargained for a plea agreement that did not require the potentially damning disclosure. From this it follows that DeMonte voluntarily undertook his obligation to disclose the prior theft. Second, and more importantly, as a practical matter, had DeMonte kept the prior theft a secret notwithstanding the existence of the plea agreement, it is highly unlikely that authorities would have found out about it. Thus, there is no sense in which DeMonte was forced or compelled, either by the government or by the plea agreement, to risk disclosing the prior theft. Under these circumstances, it was unusual indeed for DeMonte to have made the disclosures that he did. We are not holding, of course, that merely abiding by the terms of one’s plea agreement constitutes grounds for a downward departure. We are holding, however, that in the absence of any hint by the government that it suspected anything, DeMonte’s potentially damning admissions are not the sort of admissions that judges expect to hear every day. This is true regardless of whether the admissions were made pursuant to a plea agreement or not. Maj. op. at 349 (emphasis added). The majority is holding, of course, that “merely abiding by the terms of one’s plea agreement constitutes grounds for a downward departure,” although its protest to the contrary indicates that it does recognize, in theory, the folly in permitting simple compliance with one’s plea agreement to support a downward departure. By stating that De-Monte was not “forced or compelled” by the plea agreement to reveal his earlier schemes, the majority implicitly denies the unquestionable enforceability of that agreement. Upon acceptance by the district court, the plea agreement became a “type of contract,” a type immune to sua sponte modification or selective enforcement by the court. United States v. Skidmore, 998 F.2d 372, 375-76 (6th Cir.1993); accord United States v. Olesen, 920 F.2d 538, 540-41 (8th Cir.1990); United States v. Partida-Parra, 859 F.2d 629 (9th Cir.1988). The government performed its end of the deal. DeMonte’s signature on the plea agreement bound him to do the same. The majority, however, concludes otherwise. Have plea agreements come to mean nothing more than unilateral commitments on the government’s part? Does not the government have the right to take each case to trial, without so much as a thought to entering into a mutually beneficial bargain with the defendant? Does a man’s word mean so little that when, in exchange for a benefit, he promises to disclose other fraudulent activities, it can be said that unless he can effectively be “forced or compelled” to keep his word, his adherence to the contract is “unusual indeed”? It is an insult to De-Monte himself — one who has shown great signs of penitence and moral fortitude — to say that his word meant nothing. And could the government, adopting the majority’s view, maintain that this information was not provided pursuant to the plea agreement and thus not subject to the government’s commitment not to use it in the calculation of De-Monte’s sentence and not to file additional charges against him? Does the majority really believe that De-Monte’s conduct was not required by the plea *352 agreement? What would have happened if the government had done a brief investigation of DeMonte’s work and found another pattern of fraud, which DeMonte had not disclosed? Certainly, under the plea agreement, the government would have been entitled to withdraw from the agreement and take DeMonte to trial not only on the charge in the one-count Information, but also on ¿very other known fraudulent act. See Plea Agreement ¶ 6 (quoted in maj. op. at 345 n. 2). This condition substantially upped the ante, providing DeMonte strong incentive to abide by his promise. Why does this not qualify as an enforceable provision of the plea agreement? Quite revealing is the majority’s complete failure to provide any supporting law for this novel proposition. Under the first step of United States v. Brewer, 899 F.2d 503, 506 (6th Cir.), cert. denied, 498 U.S. 844 , 111 S.Ct. 127 , 112 L.Ed.2d 95 (1990), we must consider whether, as a matter of law, DeMonte’s conduct is sufficiently unusual to warrant departure. Although DeMonte’s agreement to enter into a contract in which he promised to disclose his other fraudulent activities was commendable, his compliance with his own bargain was not sufficiently unusual to warrant departure. Compliance with a plea agreement that has been approved by the court is not sufficiently unusual to warrant downward departure, unless the defendant’s performance under the plea agreement is above and beyond the call of duty, making the case unusual and extraordinary. Presumably, the government takes into account the defendant’s obligations under the plea agreement in making its offer to compromise, and the added benefit of a downward departure is rarely warranted simply because one abides by his plea agreement. See U.S.S.G. § 6B1.2 (p.s.) [Standards for Acceptance of Plea Agreements] (“A defendant who enters a plea of guilty in a timely manner will enhance the likelihood of his receiving a reduction in offense level under § 3E1.1 (Acceptance of Responsibility). Further reduction in offense level (or sentence) due to a plea agreement will tend to undermine the sentencing guidelines.” § 6B1.2 comment, (emphasis added).). Consider the Sentencing Commission’s view: If the defendant voluntarily discloses to authorities the existence of, and accepts responsibility for, the offense prior to the discovery of such offense, and if such offense was unlikely to have been discovered otherwise, a departure below the applicable guideline range for that offense may be warranted. For example, a downward departure under this section might be considered where a defendant, motivated by remorse, discloses an offense that otherwise would have remained undiscovered. This provision does not apply where the motivating factor is the defendant’s knowledge that discovery of the offense is likely or imminent, or where the defendant’s disclosure occurs in connection with the investigation or prosecution of the defendant for related conduct. U.S.S.G. § 5K2.16 (p.s.) [Voluntary Disclosure of Offense] (emphasis added). In this statement the Commission rejects the majority’s view that DeMonte’s disclosures were a proper basis for a downward departure; the Commission approves as worthy of a downward departure voluntary disclosures motivated by exemplary character, not disclosures made “in connection with the investigation or prosecution of the defendant for related conduct.” The majority states that “De-Monte’s conduct does not come under § 3E1.1, comment, n. 1(a) insofar as the pri- or theft was not ‘relevant conduct.’” See- maj. op. at 349. But it should be noted that in § 5K2.16 the Commission avoided using the term of art “relevant conduct,” choosing instead to use the generic language “related conduct.” While not conclusive, this suggests that DeMonte’s other fraud scheme is taken into account by the Guidelines and thus should not be given special status. Moreover, the proposed plea bargain alerted DeMonte to the government’s suspicion that DeMonte, having committed one fraudulent scheme, may have committed others. It is therefore reasonable to suppose that De-Monte felt that investigation and discovery of his other scheme were “likely or imminent,” a motivating factor on which a downward departure may not be based under § 5K2.16. In any event, DeMonte’s acceptance of the plea agreement decisively established his *353 previous scheme as “related” to the discovered offense for the purpose of § 5K2.16. Because DeMonte’s disclosure of his other offense was required by his plea agreement, and further, is a factor taken into account by the Guidelines, see §§ 3E1.1, 5K1.1 (p.s.) comment, (n.2), 5K2.16 (p.s.), the majority errs in approving the downward departure based on DeMonte’s disclosure of another fraud scheme. The majority notes with apparent approval the district court’s use of United States v. Lieberman, 971 F.2d 989 (3d Cir.1992), in support of the downward departure. The distinguishing feature here is that DeMonte’s confession followed his promise in his plea agreement to confess, while Lieberman’s admissions immediately followed confrontation by the bank authorities and occurred before any criminal investigation and long before any anticipated quid pro quo. DeMonte’s confession was bargained for; Lieberman’s was given without any expectation of reward or benefit. Clearly, Lieberman is materially different from this case. The majority’s view essentially holds that it is “sufficiently unusual” for a defendant to abide by his plea agreement. This is a view that I believe this Court cannot and should not take. I would hold that the district court’s departure based on DeMonte’s cooperation was reversible error. The majority declines to review the extent of the district court’s departure. Were my colleagues to address the issue, I should hope they would conclude, as I do, that the magnitude of the departure is unacceptable. The third step of Brewer requires that the departure be “ ‘measured by a standard of reasonableness.’ ” Brewer, 899 F.2d at 506 (citation omitted). The guideline range was 12-18 months based on an offense level of 13 and a criminal history category of I. The court departed downward to an offense level of 6, leaving a guideline range of 0-6 months. The court then sentenced DeMonte to probation. When one considers that the Sentencing Commission assigned only two points for the aceeptance-of-responsibility credit, this additional seven-level departure can hardly be justified on reasonableness grounds: if, in the Commission’s view, owning up is good for two points, how can owning up big be worth two plus seven points? Cf. Lieberman, 971 F.2d at 994-96 (departure of one level upheld for immediate confession and voluntary restitution of $34,000 more than defendant thought he owed). The departure is even more unreasonable in light of fact that, after giving DeMonte a seven-level reduction in his offense level, the district court then sentenced him at the very bottom of the post-departure guideline range. The extent of the departure here is clearly unreasonable and thus does not satisfy the third step of Brewer, 1 It is generally known that many district courts would like more discretion in sentencing. District courts may at times feel that the Guidelines reach harsh, even unjust, results. However, the solution to this problem lies not with the courts but with Congress, and until Congress changes the Guidelines, the courts must follow the law. I believe that the sentence of the district court should be vacated in its entirety and this case remanded for resentencing within the guideline range. I respectfully dissent. . Judge Jones's discussion (in relation to the restitution issue) of the Commission's intent to eliminate the disparities in sentencing between white-collar crimes and similar common-law crimes (in which I concur) is equally applicable to the downward departure the majority sanctions on the cooperation issue. Judge Jones quotes Brewer (quoting Judge Breyer's article) for this point: "[T|he Commission decided to require short but certain terms of confinement [for white-collar criminals].” (Emphasis added by Brewer court). And Judge Jones himself writes, “To the extent, then, that the district court used DeMonte’s restitution to drop the total offense level to the point where probation could be imposed without any confinement, the sentence manifests the very same unequal treatment of white-collar and 'street' criminals that the sentencing guidelines sought to eradicate.” Maj. op. at 348 (citation omitted). I believe the same must be said regarding DeMonte's cooperation: To the extent that the district court used DeMonte's cooperation to drop the total offense level to a point where probation could be imposed without any confinement, the court violated both the letter and the spirit of the guidelines. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9486805. Public record. Not legal advice.