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
WALD, Circuit Judge,
dissenting in part:
Watson contends that in attempting to assist the government, he faced such an extraordinary degree of risk that the district court should have granted downward departure under § 5K2.0 of the Sentencing Guidelines, which authorizes departure when there is a “mitigating circumstance ... to a degree not ádequately taken into consideration by the Sentencing Commission,” U.S.S.G. § 5K2.0 (emphasis added). The per curiam opinion holds that he failed to make this argument below.
As I read the record, Watson did indeed make that argument. His attorney stated that “Mr. Watson’s efforts in this case have been so extensive and so complex and so personally endangering that under 5K2.0, the Court can and should find that Mr. Watson’s entitled to a departure for those grounds.” Presentencing Hearing, tr. at 3 (emphasis added). He then advanced the theory that “5K2 was inserted for a specific reason and that reason was to allow the facts of a particular case that was out of the norm *1098 to be left for the trial judge to determine whether or not it’s such an exception ... to give departure.” Id. at 4 (emphasis added). The clear implication is that this is an exceptional case, where the extraordinary degree of risk undertaken by Watson warrants departure under § 5K2.0.
Chief Judge Edwards notes that Watson made no detailed factual proffer concerning the degree of risk he faced. Edwards concurrence at 1097. But at the presentencing hearing the court sought from counsel only legal arguments concerning its authority to grant downward departure under § 5K2.0, see Presenteneing Hearing, tr. at 4, 8-9, and once the court ruled that it did not have such authority, Sentencing tr. at 4-5, a detailed proffer on that issue would be pointless. Having stated his claim, Watson was told that it was not legally cognizable. Any further proffer would clearly have been futile.
Because in my view Watson raised the argument below, I would decide the legal issue of whether a district court does indeed have discretion under § 5K2.0 to grant downward departure based on a defendant’s assumption of an extraordinary degree of risk in attempting to assist the government. Section 5K2.0 is a broadly-worded, open-ended provision, granting district courts discretion to take into account any mitigating circumstance of a kind or degree not adequately considered by the Sentencing Commission. The Sentencing Commission “took into consideration” factors of this kind when it formulated § 5K1.1, which grants eligibility for downward departure if the defendant succeeds (by the government’s reckoning) in substantially assisting the government; “danger or risk of harm” is one factor that the court may consider in such cases. But § 5K2.0 independently authorizes departure when a factor of a kind considered elsewhere is nonetheless present to a degree not adequately taken into consideration. United States v. Sklar, 920 F.2d 107 , 115 & n. 7 (1st Cir.1990) (§ 5K2.0 authorizes departure if the district court “finds a material circumstance which, although considered by the Sentencing Commission, is present ‘to a degree’ neither readily envisioned nor frequently seen”). See, e.g., United States v. Gaither, 1 F.3d 1040, 1043 (10th Cir.1993) (although acceptance of responsibility is a factor of a kind taken into account in § 3E1.1, it may be “so exceptional that it is ‘to a degree’ not considered” elsewhere, justifying departure under § 5K2.0) (emphasis added); Sklar, 920 F.2d at 116 (presentence rehabilitation is considered in determining whether “acceptance of responsibility” warrants departure under § 3E1.1, but “on rare occasion” rehabilitation may be “so extraordinary as to suggest its presence to a degree not adequately taken into consideration,” justifying departure under § 5K2.0) (citation omitted) (emphasis added); United States v. Harrington, 947 F.2d 956, 962 (D.C.Cir.1991) (“leav[ing] open the possibility” of departure when rehabilitation is of an extraordinary degree, as described in Sklar).
If, for example, a defendant undertakes to ensnare his criminal colleagues in an undercover “sting” operation and is discovered before police backup arrives, he could face extreme risks, including the possibility of torture or death at the hands of his captors. Indeed, the danger is likely to be greatest when the informant’s cover is blown, but such an operation might easily prove unsuccessful, and under § 5K1.1 a failed effort, however valiant or dangerous, must go unrewarded. I think a district court might on such an occasion conclude that the degree of risk undertaken in such an operation so truly extraordinary, i.e., beyond the scope of those risks “readily envisioned [ ]or frequently seen,” Sklar, 920 F.2d at 115 , that downward departure is justified.
I would of course leave it to the sound discretion of the district court to determine, in each instance, whether the risk is of such an exceptional degree to warrant downward departure under § 5K2.0. The district court assumed — erroneously in my view — that it did not have discretion under § 5K2.0 to consider the degree of risk undertaken by Watson. I would remand for the district court to determine whether the risk in this case was so extraordinary as to justify downward departure.