Filed: Jan. 28, 2003
Latest Update: Mar. 02, 2020
Summary: Opinions of the United 2003 Decisions States Court of Appeals for the Third Circuit 1-28-2003 USA v. Waller Precedential or Non-Precedential: Non-Precedential Docket 02-1452 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2003 Recommended Citation "USA v. Waller" (2003). 2003 Decisions. Paper 857. http://digitalcommons.law.villanova.edu/thirdcircuit_2003/857 This decision is brought to you for free and open access by the Opinions of the United States Cou
Summary: Opinions of the United 2003 Decisions States Court of Appeals for the Third Circuit 1-28-2003 USA v. Waller Precedential or Non-Precedential: Non-Precedential Docket 02-1452 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2003 Recommended Citation "USA v. Waller" (2003). 2003 Decisions. Paper 857. http://digitalcommons.law.villanova.edu/thirdcircuit_2003/857 This decision is brought to you for free and open access by the Opinions of the United States Cour..
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Opinions of the United
2003 Decisions States Court of Appeals
for the Third Circuit
1-28-2003
USA v. Waller
Precedential or Non-Precedential: Non-Precedential
Docket 02-1452
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2003
Recommended Citation
"USA v. Waller" (2003). 2003 Decisions. Paper 857.
http://digitalcommons.law.villanova.edu/thirdcircuit_2003/857
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2003 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
Nos. 02-1452 & 02-1453
_________________________________
UNITED STATES OF AMERICA
v.
KENNETH WALLER
a/k/a Waffeq X. Shabazz a/k/a Blockhead
a/k/a Fathead a/k/a Bighead
Kenneth Waller,
Appellant
__________________________________
On Appeal From the United States District Court
For the District of New Jersey
(D.C. Nos. 98-cr-00105-11 & 98-cr-00325-01)
District Judge: Honorable Joseph H. Rodriguez
Submitted Under Third Circuit L.A.R. 34.1(a)
January 13, 2003
Before: SCIRICA, BARRY and SMITH, Circuit Judges
(Opinion Filed: January 28, 2003)
OPINION OF THE COURT
SMITH, Circuit Judge:
I.
This is an appeal by the defendant Kenneth Waller from a judgment in a criminal case
entered pursuant to a plea to conspiracy to distribute and to possess with intent to distribute more
than five kilograms of cocaine in violation of 21 U.S.C. §§ 841(a)(1) and 846; and knowingly
possessing as a convicted felon a semiautomatic handgun on November 16, 1993 and June 2, 1997
in violation of 18 U.S.C. §§ 922(g)(1) and (2). As part of the plea agreement, Waller agreed to
cooperate fully with the government. In exchange, the government agreed to move for a downward
departure pursuant to United States Sentencing Guidelines Manual § 5K1.1 (2001) (hereinafter
“U.S.S.G.” or “the Guidelines”) if Waller provided “substantial assistance in the investigation of
one or more persons who have committed offenses.” The government also stated that it “m[ight]
move the sentencing judge, pursuant to 18 U.S.C. § 3553 (e), to depart from any applicable
statutory minimum sentence.” The applicable statutory minimum term of imprisonment for the
cocaine conspiracy charge is 120 months. 21 U.S.C. § 841 (b)(1)(A)(ii)(II).
Based on Waller’s offense level of 35 and a criminal history category of V, the District
Court determined at sentencing that the appropriate Guidelines range was 262 to 327 months. The
government moved for a downward departure under § 5K1.1 based on Waller’s substantial
assistance, and the District Court sentenced Waller to 160 months, departing downward by 102
months. The government did not, pursuant to 18 U.S.C. § 3553(e), move to depart downward from
the applicable statutory minimum sentence.
II.
In this appeal, Waller complains that the District Court failed to conduct a legally sufficient
assessment of U.S.S.G. § 5K1.1's enumerated factors when ruling upon the government’s § 5K1.1
motion. We exercise plenary review over claims of sentencing error based upon a mistake of law
or an incorrect application of the sentencing guidelines. United States v. Torres, 251 F.3d 138,
145 (3d Cir. 2001). We find that the District Court properly indicated its consideration of §
5K1.1's enumerated factors, and we will affirm.
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In United States v. Torres, we held that when considering a downward departure for
substantial assistance,
[A] sentencing court not only must conduct a qualitative, case-by-case analysis but
also must examine § 5K1.1's enumerated factors. That is, when presented with a
motion for downward departure a sentencing judge must, at a very minimum,
indicate his or her consideration of § 5K1.1's five factors in determining whether
and to what extent to grant a sentencing reduction. Further, a sentencing judge must
indicate his or her consideration of any factors outside those listed in § 5K1.1.
251 F.3d at 147. Courts must consider the following five factors under § 5K1.1:
(1) the court’s evaluation of the significance and usefulness of the defendant’s
assistance, taking into consideration the government’s evaluation of the
assistance rendered;
(2) the truthfulness, completeness, and reliability of any information or
testimony provided by the defendant;
(3) the nature and extent of the defendant’s assistance;
(4) any injury suffered, or any danger or risk of injury to the defendant or his
family resulting from his assistance; [and]
(5) the timeliness of the defendant’s assistance.
U.S.S.G. § 5K1.1. In Torres, we also “strongly urge[d],” but did not require, sentencing judges to
“make specific findings regarding each factor and articulate thoroughly whether and how they used
any proffered evidence to reach their decision.” 251 F.3d at 147.
We are satisfied that the District Court more than met the requirements of Torres. The
government’s letter brief and the sentencing transcript demonstrate that the District Court
expressly considered arguments regarding 5K1.1's enumerated factors, and that the District Court
considered several non-enumerated factors. The government’s letter brief properly brought the
Torres decision to the District Court’s attention, stating that:
Consistent with the decision of United States v. Torres, 251 F.3d 138 (3d Cir.
2001), in ruling on the Government’s motion for a downward departure under
Section 5K1.1, the Court must conduct “a qualitative, case by case analysis [and]
also . . . examine Section 5K1.1's enumerated factors” as well as any other factor the
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Court deems relevant.
In addition, the government presented arguments concerning each of the § 5K1.1 factors in both
its letter brief and at sentencing. Defense counsel provided additional evidence regarding Waller’s
assistance pursuant to the five factors.
After hearing the arguments of the parties, the District Court indicated on the record that it
recognized its duty to consider § 5K1.1's five enumerated factors. The Court stated that “in
considering the cooperation [of the defendant] under 5K1.1, the Court has to review certain
relevant factors; the nature and extent of the assistance given by the defendant.” The District Court
then explicitly discussed each of the five factors, and how the defendant’s conduct was relevant to
each factor. We conclude that the Court satisfied its duty “to indicate [its] consideration” of the
5K1.1 factors.
The Court also clearly stated on the record that it had considered the following non-
enumerated factors: the seriousness of the drug conspiracy, the firearms offenses that Waller
committed separately from his co-defendants, and the relative responsibility of the various
defendants involved in the drug conspiracy. Accordingly, the District Court properly indicated its
consideration of § 5K1.1's enumerated and non-enumerated factors under Torres.
We turn briefly to the defendant’s argument that the District Court did not conduct an
individualized, qualitative analysis in sentencing the defendant by failing to ask the government
why it did not file a motion to depart below the statutory mandatory minimum pursuant to 18
U.S.C. § 3553(e). This argument lacks merit. The defendant conceded that the plea agreement
gave the government sole discretion to decide whether to move pursuant to § 3553(e). The
District Court had no duty to question the government on why it chose not to exercise its
4
discretion to file such a motion. The government’s recommended sentence of 168 months
represented a substantial departure, but did not come close to falling below the statutory
minimum of 120 months. Even Waller himself did not ask for a sentence below the mandatory
minimum. Hence, the government is correct that the question of whether to impose a sentence
below the statutory mandatory minimum was not at issue.
The judgment of the District Court will be AFFIRMED.
TO THE CLERK OF COURT:
Please file the foregoing opinion.
/s/ D. Brooks Smith
Circuit Judge
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