rejecting section 5K2.0 request because section 5K1.1 manifests adequate consideration of mitigating circumstance
How later courts described this case
- rejecting section 5K2.0 request because section 5K1.1 manifests adequate consideration of mitigating circumstance
- "[I]t is well established that a court may not order a departure on the ground of the defendant's assistance if the government does not so move under section 5K1.1."
- plain error review of departure denial where basis of departure applicability changed on appeal
Written by the judges who cited it.
The opinion
HARRY T. EDWARDS, Chief Judge,
concurring:
I am not prepared to say whether the District Court ever has the authority to depart under U.S.S.G. § 5K2.0, p.s., in a situation where a defendant proffers a claim that the nature or extent of the risk faced during an attempt to cooperate with authorities was so extraordinary as to be beyond the compass of U.S.S.G. § 5K1.1, p.s. Cf. United States v. Romolo, 937 F.2d 20, 24-25 (1st Cir.1991) (noting that it is “theoretically possible” that unusual circumstances surrounding cooperation attempt might justify departure under section 5K2.0, even in absence of section 5K1.1 motion); United States v. Khan, 920 F.2d 1100, 1106-07 (2d Cir.1990) (noting same “theoreticalf ] possibility]”), cert. denied, 499 U.S. 969 , 111 S.Ct. 1606 , 113 L.Ed.2d 669 (1991).
I agree that the District Court in this case assumed that it had no authority to depart in the absence of a Government motion, whether on the broader ground that section 5K1.1 does not, as a matter of law, preclude consideration of risk as a separate basis for departure, or on the ground that an unusual degree of risk could provide the basis for departure. I am unwilling to reach the question of the scope of the District Court’s authority, however, because no proffer was made at trial to suggest that this case presented an extraordinary degree of risk incurred by the defendant in his cooperation attempts. Such a proffer by a defendant, and argument specifically based thereon, are necessary in order to bring before the District Court and preserve for appellate review the question of a possible departure based on degree of danger incurred. Cf. United States v. Bradshaw, 935 F.2d 295, 303 (D.C.Cir.1991) (sentencing court has no “affirmative obligation” to inquire into factual circumstances that might warrant departure; defendant must press specific argument for departure to preserve issue for review); United States v. Khan, 920 F.2d at 1107 (possible departure under section 5K2.0 not raised at sentencing or preserved for review; defendant failed to apprise District Court of mitigating circumstance possibly warranting departure).