UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellant,

v. No. 96-6043

KIM LUCRETIA COPELAND,

Defendant-Appellee.

Appeal from the United States District Court

for the Eastern District of Virginia, at Norfolk.

John A. MacKenzie, Senior District Judge.

(CA-93-156-N)

Argued: October 28, 1996

Decided: September 11, 1997

Before WIDENER and ERVIN, Circuit Judges, and BULLOCK,

Chief United States District Judge for the

Middle District of North Carolina, sitting by designation.

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Affirmed by unpublished opinion. Judge Ervin wrote the opinion, in

which Judge Widener and Chief Judge Bullock joined.

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COUNSEL

ARGUED: Fernando Groene, Assistant United States Attorney, Norfolk, Virginia, for Appellant. Bruce Christopher Sams, Norfolk, Virginia, for Appellee. ON BRIEF: Helen F. Fahey, United States

Attorney, Norfolk, Virginia, for Appellant.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

ERVIN, Circuit Judge:

The government appeals the district court's decision to grant Kim

Copeland (Copeland) a sentence reduction pursuant to Federal Rule

of Criminal Procedure 35(b), arguing that the court was without

power to make such a reduction absent a motion by the government.

For the reasons hereinafter explored, we affirm Copeland's reduced

sentence.

I

In November 1993, Copeland and ten others were charged, in an

eighty five count indictment, with numerous narcotics offenses. On

January 20, 1994, Copeland pleaded guilty to conspiracy to possess

with intent to distribute in excess of 50 grams of crack. The plea

agreement she entered provided that Copeland would cooperate with

the United States in its investigations, would testify at trials and grand

jury proceedings, and would submit to polygraph tests at the request

of the United States. The agreement also provided that the government reserved its option to move the court for a sentence reduction

based upon substantial assistance if the government,"in its sole discretion," determined that such assistance had been rendered.

By the end of January, 1994, seven of the eleven indicted conspirators had entered guilty pleas and agreed to testify against their coconspirators. Two of the remaining four conspirators, Howard Hudson and Michael Hunter, were scheduled to stand trial, and the

remaining two indicted conspirators were still at large. The Hudson/Hunter trial, conducted in March 1994, lasted five days. Copeland

testified on behalf of the prosecution for the first day and one-half of

the trial. Copeland testified extensively despite the fact that she and

Hudson had been romantically involved and she still had strong feelings for him. The jury ultimately convicted Hudson on eighteen

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counts related to drug offenses and convicted Hunter on one conspiracy count. Hudson received a sentence of life plus 300 months and

Hunter received a sentence of 235 months imprisonment.

Copeland was sentenced in May 1994. The sentencing court was

at odds with the government regarding the appropriate sentences for

several of the conspirators who had pleaded guilty. With respect to

Copeland, the government sought life imprisonment and several specific sentencing enhancements. The court declined to give Copeland

an enhancement for her alleged role in the conspiracy and for her

alleged possession of a firearm in the course of the conspiracy, finding that there was no evidence to support either enhancement. The

court also found that the very high quantity of drugs upon which the

government based its request for a life sentence could only be proven

by Copeland's own statements given to the government in the course

of her cooperation. Because the evidence was the fruit of her cooperation, the court concluded that it would violate Copeland's plea agreement to use that information against her in sentencing, and therefore

sentenced her based upon a much lower quantity of drugs. The court

sentenced Copeland at the bottom of her Guideline range, to 168

months imprisonment. The government initially sought to appeal the

court's denial of its sentencing requests but later withdrew its motion.

At Copeland's sentencing hearing the government declined to

make a motion for downward departure, but indicated that it would

likely make such a motion at a later time. Copeland continued to

cooperate with the government after her sentencing. She was prepared

by the government to testify before the grand jury against unindicted

narcotics co-conspirators. Although Copeland was willing to testify,

she continually denied knowledge of the involvement of one of the

government's targets in the conspiracy, Kiddy Campbell. Copeland

agreed to take, but failed, a polygraph test to confirm the information

she gave denying the involvement of Campbell. Because she would

not incriminate Campbell, the government declined to use her testimony to secure his indictment.

After all the conspirators had been sentenced, the government

moved for downward departures for the other six conspirators who

had cooperated with the government. The court granted each motion

and significantly reduced each defendant's sentence. The government

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did not move for a departure for Copeland alone, citing Copeland's

inability to incriminate Campbell and her failure on the polygraph

test. The government also asserted that during at least one of Copeland's debriefings and during her own sentencing hearing, she minimized the extent of the overall conspiracy below the level she had

originally described, and below the level that the government believed

was accurate.

One year after her sentencing, Copeland herself moved the court to

reduce her sentence pursuant to Federal Rule of Criminal Procedure

35(b). An evidentiary hearing was held on the issue. The district court

concluded that the government's refusal to depart downward for

Copeland when it did so for each of her six fellow cooperators, whose

assistance to the government had been much less, was not rationally

related to a legitimate government end. The court found that the

record and his own observation of the Hunter/Hudson trial proved that

Copeland rendered substantial assistance and that she was essential to

securing both convictions. Finally, although the government submitted to the district court evidence of Copeland's poor behavior in

prison and argued that such behavior justified the government's

refusal to make a Rule 35(b) motion, the sentencing court declined to

find that her discipline problems bore any relationship to her compliance with the plea agreement. After concluding that the government

had no rational basis for denying Copeland a motion for downward

departure, the court granted a departure down to 75 months, which the

court noted was proportional to the departures granted to other defendants. The government now appeals that decision.

II

The issue before us is whether the district court erred in finding

that the government's failure to move for a downward departure for

substantial assistance was not rationally related to a legitimate government end and in therefore granting a downward departure absent

a government motion. On the unique facts of this case, we affirm the

lower court's decision.

A

We have fashioned a sliding-scale standard of review for use in

appeals involving application of the Sentencing Guidelines. United

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States v. Daughtrey, 874 F.2d 213, 217 (4th Cir. 1989). Factual findings made by the district court in connection with a sentencing decision are reviewed for clear error while legal interpretations of the

Guidelines are reviewed de novo. Id.; see also United States v. Blake,

81 F.3d 498, 503 (4th Cir. 1996). Therefore, in this case we will give

deference to the factual findings underlying the district court's conclusion that the government had no rational basis for denying Copeland a downward departure. However, we will review closely the

legal conclusion that those facts do not constitute a rational basis for

government policy.

B

Three provisions of federal law address departure downward from

the Sentencing Guidelines and from congressionally-mandated statutory minimums as a reward for substantial assistance: § 5K1.1 of the

Sentencing Guidelines, 18 U.S.C. § 3553(e), and Rule 35(b) of the

Federal Rules of Criminal Procedure. In the instant case, Rule 35(b)

is implicated because it alone covers departure motions made after

sentence has initially been entered.

Rule 35(b) provides:

Reduction of Sentence for Changed Circumstances. The

court, on motion of the Government made within one year

after the imposition of the sentence, may reduce a sentence

to reflect a defendant's subsequent, substantial assistance in

the investigation or prosecution of another person who has

committed an offense, in accordance with the guidelines and

policy statements issued by the Sentencing Commission

pursuant to section 994 of title 28, United States Code. . . .

The court's authority to reduce a sentence under this subsection includes the authority to reduce such sentence to a level

below that established by statute as a minimum sentence.

Although U.S.S.G. § 5K1.1 and 18 U.S.C. § 3553(e) are not directly

implicated in the instant decision, our previous interpretations of

those provisions are certainly relevant and useful when addressing

Rule 35(b).

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C

The law governing downward departures for substantial assistance

is well established. In Wade v. United States , 504 U.S. 181, 185

(1992), the Supreme Court decided that the plain language of

§ 3553(e) permits only the government to move for a departure to

reward cooperation. The Court found that the government has a

power, but "not a duty," to file a motion when a defendant has substantially assisted. The Court recognized only two narrow exceptions

to this rule: a defendant may have relief from the district court when

the government's failure to file a substantial assistance motion is

based upon an unconstitutional motive, such as racial or religious animus, or when the decision not to make the motion is"not rationally

related to any legitimate Government end." Id. at 185-86.

We have followed the Supreme Court's lead and interpreted the

Wade exceptions narrowly, generally holding that the decision not to

make a downward departure motion is properly within the government's power. See, e.g., United States v. Maddox, 48 F.3d 791, 795-

96 (4th Cir. 1995) (reversing district court's decision to grant downward departure pursuant to § 5K1.1 and 18 U.S.C. § 3553 absent

motion from the government); United States v. Wallace, 22 F.3d 84,

87-88 (4th Cir. 1994) (affirming district court's refusal to depart for

substantial assistance absent government motion). We have never,

however, held or implied that government discretion in this arena is

unfettered. See, e.g., United States v. Dixon, 998 F.2d 228, 231 (4th

Cir. 1993) (holding that because defendant had provided substantial

assistance, government had to fulfill promise to move for downward

departure at sentencing). We reaffirm today the importance of the

constitutional constraints placed on government power in the realm of

substantial assistance.

We agree with the court's analysis that the government's refusal to

request a departure in this case was not rationally related to any legitimate government end. However, we limit our holding in this respect

to the unique facts of the case before us.

As an initial matter, we are persuaded that the court below had a

great deal of knowledge about the unique facts and circumstances of

all aspects of this case. The district court presided over many proceed-

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ings related to Copeland's case and the cases of her co-conspirators

and has direct knowledge of the assistance she provided. The court

was in a unique position to judge Copeland's cooperation in comparison with the six other conspirators who received a downward departure and to determine whether the distinction the government made in

denying a departure to Copeland alone was a legitimate and rational

one.

We specifically affirm several of the district court's factual findings and agree that they support the conclusion that the government's

decision in this case was not rationally related to a legitimate government end. First, the court found that Copeland's extensive cooperation with the government constituted substantial assistance. The court

found the government's attempt to characterize Copeland's participation at the Hudson/Hunter trial as not helpful to be disingenuous. It

is apparent from the record that Copeland's cooperation was essential

to the convictions secured at that trial. In our unpublished opinion

affirming Hunter and Hudson's convictions, United States v. Hudson,

No. 94-5392 (4th Cir. Dec. 7, 1995), we named Copeland as a cooperating witness and relied in part upon information she provided.

Second, the district court refused to find that Copeland was minimizing the scope of the conspiracy when she testified and when she

met with government agents, and we agree with this conclusion. The

court credited Copeland's estimates of the quantities of drugs

involved at various points in the conspiracy more than the "generalized and unsubstantiated estimates provided by an obviously overzealous law enforcement officer with an interest in enlarging the

proverbial notch on his belt." Moreover, the district court was rightly

troubled by the government's implication that if a witness cooperates,

but gives information other than that which the government had

expected, the government can say that the defendant failed to cooperate.

Third, the court found that the government, in not requesting a

departure, was motivated by the fact that Copeland could not implicate one of their investigation's targets, Kiddy Campbell. However,

the district court credited testimony that Copeland had not seen

Campbell conduct any drug deals and had never participated in illicit

activity with him. The district court concluded that she had not been

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dishonest when she told prosecutors that she lacked knowledge that

Campbell was a drug dealer.1

One fact which supports the government's decision not to seek a

departure in this case is that Copeland did not completely pass a polygraph examination. Specifically, the test suggested that she was not

fully truthful when asked if she had given the complete truth about

Kiddy Campbell. However, the district court made several findings

regarding the polygraph examination and, upon examination of the

record, we agree with those findings. The court discredited the polygraph result as unreliable given the circumstances of the examination

and the types of questions asked, and found the test to be inadmissible

for any purpose. The court further found that, at worst, the false statement represented only one error during numerous debriefings by the

government and during days of testimony. The district court was particularly convinced about Copeland's honesty with respect to Campbell because she had testified so completely and damningly against

Hudson, a man with whom she was in love. The court reasoned that

there was a strong presumption against Copeland lying to protect

Campbell, a man she scarcely knew, when she had fully incriminated

Hudson. Furthermore, the court was able to make its own credibility

determinations about Copeland's cooperation when she testified

extensively and under strenuous cross-examination at the hearing on

her Rule 35(b) motion. Given these facts, the court declined to find

that the single polygraph question provided a rational basis for denial

of a downward departure and we agree.

We believe that the district court's factual findings are thoroughly

supported by the record and the government has not shown us that

any of those findings are clearly erroneous. We further agree with the

conclusion that, based upon these facts, the government's decision not

to request a downward departure was not rationally related to any

legitimate government end.

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1 It is noteworthy that Copeland's plea agreement bound her to testify

truthfully, not to exclusively provide inculpatory evidence regarding

other conspirators or evidence which supports the government's case.

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III

Although we agree with the above factually-grounded reasoning

upon which the district court based its decision to depart, we conclude

that the same result is independently mandated by our decision in

United States v. Martin, 25 F.3d 211 (4th Cir. 1994).2 In Martin the

defendant pleaded guilty and his plea agreement, like the one Copeland signed, allowed the government, in its sole discretion, to make

a motion for downward departure pursuant to either§ 5K1.1 or Fed.

R. Crim. P. 35(b). Id. at 213. Martin cooperated significantly, and, at

his sentencing, the government told the court that it intended to make

a downward departure motion at a later time to reward his cooperation. The government wanted the defendant to continue to cooperate

in the meantime and perhaps secure an even greater reduction in his

sentence. Id. at 214. After sentencing, however, Martin had no opportunities for further cooperation. The government made a Rule 35(b)

motion for downward departure to reward him for the cooperation he

had provided prior to sentence. Id. at 215. However, the district court

held that Rule 35(b) only allowed departure for cooperation after sentencing and that § 5K1.1, employed at the time of sentencing, was the

proper vehicle to reward presentence assistance. The court felt that

because of this it could not reward Martin for his presentence cooperation. Id. at 215. Martin and the government joined in an appeal of

that decision.

On appeal, we found that the district court's reading of the applicable provisions to require § 5K1.1 motions to encompass pre-sentence

cooperation and Rule 35 motions to cover post-sentence cooperation

was correct. However, we did not agree that no relief was available

to Martin. Id. at 216. We held that the government cannot delay a

request for downward departure until after sentencing where a depar-

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2 Martin is still good law in this circuit. See, e.g., United States v.

Speed, 53 F.3d 643, 645 n.3 (4th Cir. 1995) (stating that Martin is still

binding authority, absent intervention by the en banc court or revision of

Rule 35(b) by Congress). We note, however, that Judge Ellis' concurrence in Speed, 53 F.3d at 647, questions whether Martin's interpretation

of Rule 35 is valid, and the District of Colombia Circuit criticized the

Martin decision and declined to follow it in United States v. White, 71

F.3d 920, 926 (D.C. Cir. 1995).

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ture would be proper in light of pre-sentencing assistance. Id. at 216.

We reasoned:

If the government defers making a U.S.S.G. § 5K1.1 motion

on the premise that it will make a Fed. R. Crim. P. 35(b)

motion after sentencing, the sentence that follows deprives

a defendant of due process, and is therefore "in violation of

law."

Id. at 216 (internal citations omitted). We concluded that cases such

as Martin should be remanded to allow the government to consider

anew the assistance at the time of sentencing and whether it merited

a departure. Id.

Martin's reasoning supports the district court's decision in this case

to grant Copeland relief from the government's refusal to make a

downward departure motion. It is clear that Copeland would have

received a motion for downward departure had the government made

its decision at the time of sentencing. All of the government's proffered reasons for declining to seek a departure occurred after Copeland was already sentenced, and her cooperation before sentencing

was undeniably significant. Therefore, pursuant to Martin the government should not have been allowed to continue to withhold a departure motion from Copeland given that she had, as of sentencing,

substantially assisted.

IV

In sum, we agree with the district court's decision to grant Copeland a downward departure for her substantial assistance. The government's decision not to seek such a departure in this case is not

rationally related to a legitimate government end; that decision also

violates Copeland's Due Process rights as we warned of in Martin.

The district court crafted an appropriate remedy when it granted

Copeland a downward departure commensurate with those received

by her fellow cooperators. Therefore Copeland's reduced sentence is

AFFIRMED.

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