United States Court of Appeals

Fifth Circuit

FILED

May 22, 2006

Charles R. Fulbruge III

Clerk

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________________

No. 05-30401

_______________________

UNITED STATES OF AMERICA,

Plaintiff-Appellant,

versus

ROBERT GUS “BOBBY” DESSELLE, 

also known as Uncle, 

also known as Tio, also known as Pops

Defendant-Appellee.

_________________________________________________________________

Appeal from the United States District Court

for the Middle District of Louisiana

________________________________________________________________

Before JONES, Chief Judge, and BARKSDALE and BENAVIDES, Circuit

Judges.

EDITH H. JONES, Chief Judge:

The United States appeals from the extent of the district

court’s departure for Desselle’s assistance to law enforcement

under U.S.S.G. § 5K1.1 and 18 U.S.C. § 3553(e). Because the

district court reversibly erred in allowing improper factors to

govern its decision, we VACATE and REMAND for resentencing.

BACKGROUND

Bobby Desselle worked as a funeral director at his

family’s funeral home in Baton Rouge. On the side, he sold large

quantities of cocaine and marijuana, earning a substantial profit

which he laundered through extravagant purchases and business
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ventures. In 2004, Bobby Desselle pleaded guilty to money

laundering and conspiracy to distribute more than five kilos of

cocaine. As part of the plea agreement, Desselle cooperated with

officials, and the United States made a motion to reduce Desselle’s

sentence for his substantial assistance under both U.S.S.G. § 5K1.1

and 18 U.S.C. § 3553(e). Based on Desselle’s “minimal” substantial

assistance, however, the United States recommended only a two-level

reduction in his base offense level, which would have resulted in

a guideline range of 210-262 months. The district court calculated

Desselle’s total offense level at 39 (which had a guideline range

of 262-327 months), granted a ten-level reduction for Desselle’s

substantial assistance, and sentenced him to eighty-seven months,

the minimum within the guideline range after the ten-level

reduction was made. The departure reduced Desselle’s sentence by

sixty-seven percent from the minimum sentence for his calculated

offense level and nearly twenty-eight percent from the statutory

minimum of ten years.

In so departing and sentencing Desselle, the district

court explained that it considered the Guidelines, documents

presented to it, and “the medical status of the defendant”:

And I do not at all take what you did, Mr. Desselle,

lightly in any factor. You were a major drug dealer here

in this area. You, you know, got a lot of folks, you

know, wrapped up in a lot of things and – you know, and

all of you are now having to serve prison sentences.

You certainly, I think, were in it to make money,

and you made a lot of money. And your money has been

forfeited and your assets have been forfeited. And I

considered that aspect as well. You have lost, in that
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sense, a lot of money, you know, by the forfeiture of all

of the property and assets that you have — or most of

your assets.

You, on the other hand, have serious medical

problems. You are now 57 years old. You know, 87 months

from now, I do not think you are going to be wanting to

go into the drug business. I think by that time you will

be of sufficient age to just, you know, live out your

life in a manner that does not involve dealing with drugs

and breaking the law.

I think that the sentence that I have imposed, based

on the circumstances of the offense, the history and the

characteristics of the defendant, meet the needs of

society; and it does reflect the seriousness of the

offense; and it will show people that you are eventually

going to get caught; and that you are eventually going to

go, you know, to prison; and that this is a just

punishment, along with the forfeitures that you have made

and the fine that will be paid, for the offense.

And I think that the sentence that I render will

also afford adequate deterrence to further criminal

conduct as much as those things have a tendency to do.

I do not think that any further or longer sentence would

protect the public from any crimes that you may commit in

the future. If that does not get the message to you,

then I do not think a longer sentence would. And it will

also, hopefully, provide you with needed medical care and

help you with the drug problem that you have.

Now, as I have said, this is within the range that

is applicable under the finding by the court. It is not

the lowest sentence that you could get; it is not the

highest sentence you would get, but I think it is

adequate for the needs here. I, you know, cannot

overlook the things that you have done, you know, on the

good side as well. But you are now going to have to pay

for what you have done.

This statement was made in open court. In a sealed proceeding, the

Government objected to the § 5K1.1 departure, but the district

court did not make any comments about why the extent of the

departure was reasonable or discuss the § 5K1.1 factors.

DISCUSSION

In sentencing defendants after Booker, district courts
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must first calculate the guideline range, a calculation which is

reviewed de novo. United States v. Smith, 440 F.3d 704, 706 (5th

Cir. 2006). If a sentencing court imposes a sentence that includes

an upward or downward departure as allowed by the Guidelines, this

court reviews both the decision to depart and the extent of that

departure for abuse of discretion. Id. at 707; see also United

States v. Simkanin, 420 F.3d 397, 415-16 (5th Cir. 2005) (using

that standard in reviewing an upward departure). “In assessing the

extent of a departure, we continue to look to our pre-Booker case

law for guidance.” Smith, 440 F.3d at 707. “A district court

abuses its discretion if it departs on the basis of legally

unacceptable reasons or if the degree of the departure is

unreasonable.” United States v. Harris, 293 F.3d 863, 871 (5th

Cir. 2002) (cited favorably in Simkanin, 420 F.3d at 416 & n.21).

Appellate courts must ultimately “determine whether the sentence

‘is unreasonable’ with regard to” the factors outlined in 18 U.S.C.

§ 3553(a). United States v. Booker, 543 U.S. 220, 261, 125 S. Ct.

738, 765 (2005). 

Although judges have latitude under § 5K1.1, they must

“conduct[] a judicial inquiry into each individual case before

independently determining the propriety and extent of any departure

in the imposition of sentence.” United States v. Johnson, 33 F.3d

8, 9 (5th Cir. 1994). Section 5K1.1 requires the court to state

its reasons for imposing the departure, reasons “that may include,

but are not limited to, consideration of the following:”
1 See, e.g., United States v. Pepper, 412 F.3d 995, 998 (8th Cir. 2005)

(even though § 5K1.1 provides a non-exhaustive list of factors to consider, the

maxim that words are known by their companions requires that any additional

factors a district court uses must be related to the defendant’s assistance);

United States v. Davis, 407 F.3d 1269, 1271 (11th Cir. 2005) (“While the

sentencing court had discretion under § 5K1.1 in deciding whether to depart from

the guidelines and the extent of that departure, it did not have the discretion

to consider factors unrelated to the nature and type of [the defendant’s]

assistance.”); United States v. Bullard, 390 F.3d 413, 416 (6th Cir. 2004) (so

holding); United States v. Auld, 321 F.3d 861, 867 (9th Cir. 2003) (same);

United States v. Pearce, 191 F.3d 488, 492 (4th Cir. 1999) (same); United States

v. Thomas, 11 F.3d 732, 737 (7th Cir. 1994) (“[A] downward departure from the

statutory minimum sentence for any purpose other than that provided in U.S.S.G.

§ 5K1.1 would conflict with and therefore violate the statute [§ 3553(e)].”);

United States v. Campbell, 995 F.2d 173, 175 (10th Cir. 1993) (so holding);

United States v. Mariano, 983 F.2d 1150, 1156 (1st Cir. 1993) (“While the

Commission’s list is representative rather than exclusive, the five enumerated

factors should be considered the mother lode of substantial assistance inquiries.

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(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; 

(5) the timeliness of the defendant’s assistance.

U.S.S.G. § 5K1.1.

Although the enumerated reasons are not the only factors

a court may consider in determining the extent of the § 5K1.1

departure, a court must begin to assess a § 5K1.1 departure using

the criteria listed by the Guidelines. Further, the additional

factors a court may consider must be related to determining the

“nature, extent, and significance of assistance.” See U.S.S.G.

§ 5K1.1 Application Note Background. We thus join the majority of

circuits in holding that the extent of a § 5K1.1 or § 3553(e)

departure must be based solely on assistance-related concerns.1
. . . As a basis for departing, a court may consider mitigating factors only to

the extent that they can fairly be said to touch upon the degree, efficacy,

timeliness, and circumstances of a defendant’s cooperation.”). But see United

States v. Carey, 382 F.3d 387, 391 (3d Cir. 2004) (“On occasion, and despite the

terms of a government recommendation, factors other than those listed in 5K1.1

have been considered in deciding the extent of a departure.”).

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The district court here abused its discretion by

considering non-assistance-related factors in determining the

extent of the § 5K1.1 departure. See Harris, 293 F.3d at 871

(abuse of discretion if district court departs for an impermissible

reason); see also United States v. McVay, No. 04-13455, slip. op.

at 16 (11th Cir. May 5, 2006) (consideration of improper factors in

the context of a § 5K1.1 departure “was error as a matter of law

and must be reversed”). Although the district court had discretion

to decide “(1) whether to depart from the guidelines based on

substantial assistance, and (2) if so, the reasonable extent of

that departure, plainly it did not have discretion to consider

factors altogether unrelated to the nature and extent of [the

defendant’s] assistance.” Id. at 17.

Moreover, on the record, the extraordinary departure is

not supported by the nature of Desselle’s assistance. “An

extraordinary reduction must be supported by extraordinary

circumstances.” United States v. Dalton, 404 F.3d 1029, 1033 (8th

Cir. 2005). Without such a rule, there would be “little room for

greater departures for defendants who actually participate in

controlled buys, wear wires, give grand jury and trial testimony,

or are subjected to significant risk of injury or death to
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themselves or their family.” United States v. Haack, 403 F.3d 997,

1005-06 (8th Cir. 2005). Desselle did not follow instructions from

the FBI agents with whom he dealt and provided little helpful

information. These are clearly not the “extraordinary

circumstances” required to support a departure of sixty-seven

percent.

CONCLUSION

We VACATE and REMAND Desselle’s sentence for resentencing

in a manner consistent with § 5K1.1, this opinion, and the Supreme

Court’s decision in Booker.

VACATED AND REMANDED.