1998 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

4-29-1998

United States v. Faulks

Precedential or Non-Precedential:

Docket 96-2056

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Recommended Citation

"United States v. Faulks" (1998). 1998 Decisions. Paper 96.

http://digitalcommons.law.villanova.edu/thirdcircuit_1998/96
Filed April 29, 1998 

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

NO. 96-2056 

UNITED STATES OF AMERICA 

v. 

JUAN FAULKS 

 Appellant 

On Appeal From the United States District Court 

For the Eastern District of Pennsylvania 

(D.C. Crim. Action No. 96-cr-00299-1) 

Argued October 17, 1997 

BEFORE: STAPLETON, ALITO and SEITZ, Circuit Judges 

(Opinion Filed April 29, 1998) 

 Michael R. Stiles 

 United States Attorney 

 Walter S. Batty, Jr. 

 Assistant U.S. Attorney 

 Wendy A. Kelly (Argued) 

 Assistant U.S. Attorney 

 Office of United States Attorney 

 615 Chestnut Street, Suite 1250 

 Philadelphia, PA 19106 

 Attorneys for Appellee 
 Peter Goldberger (Argued) 

 Pamela A. Wilk 

 James H. Feldman, Jr. 

 50 Rittenhouse Place 

 Ardmore, PA 19003-2276 

 Attorneys for Appellant 

OPINION OF THE COURT 

STAPLETON, Circuit Judge: 

Defendant Juan Faulks entered into a plea agreement

with the government which required him to cooperate in the 

investigation of individuals participating in the distribution 

of narcotics. In return for Faulks' assistance, the

government agreed to file a motion pursuant to U.S.S.G. 

S 5K1.1 requesting a downward departure from the 

Sentencing Guidelines. Faulks asserts that the district 

court misapplied the Sentencing Guidelines because it 

granted the government's motion but, nevertheless, 

imposed a sentence within the applicable guideline range. 

Faulks also contends that the district court erred in 

declining to depart pursuant to U.S.S.G. S 5K2.0 based on 

his agreement not to oppose certain administrative 

forfeitures. Finally, Faulks submits that the district court 

erred in finding that the controlled substance he 

distributed was crack cocaine. 

We will remand for further sentencing proceedings. 

I. 

On two occasions in 1996, Faulks sold approximately

eleven and one half ounces of cocaine base to a confidential 

informant. He was later arrested and charged with two 

counts of distributing a "substance containing cocaine base 

(crack)" in violation of 21 U.S.C. S 841(a)(1), two counts of 

money laundering in violation of 18 U.S.C. S 1956, one 

count of criminal forfeiture of real property pursuant to 18 

U.S.C. S 982, and four counts of criminal forfeiture of 

personal property pursuant to 21 U.S.C. S 853. App. at 8-9. 

 2 
Faulks entered into a plea agreement which required him 

to plead guilty to the counts of cocaine distribution, money 

laundering and criminal forfeiture of real property. The 

government agreed to dismiss the remaining counts of 

criminal forfeiture in return for Faulks' acquiescence in the 

administrative forfeiture of the personal property described 

in the indictment. It also committed itself to: 

 [m]ake a motion to allow the Court to depart from the 

 Sentencing Guidelines pursuant to Sentencing

 Guidelines S 5K1.1, and to impose a sentence below 

 any mandatory minimum term of imprisonment 

 pursuant to 18 U.S.C. S 3553(e), if the government, in 

 its sole discretion, determines that the defendant has 

 provided substantial assistance in the investigation or 

 prosecution of another person who has committed an 

 offense. 

App. at 36-37. 

When Faulks entered his guilty pleas, the court asked 

him at the outset to identify the charges to which he 

wished to plead guilty. He responded, "Two counts of 

distribution of crack cocaine, and forfeiture of my home, 

and to money laundering." App. at 45. Thereafter, the 

government made a proffer of evidence during which the 

prosecutor consistently and on six occasions referred to the 

substance distributed by Faulks as "crack cocaine." She 

reported during the proffer that the substance purchased 

by the informant on both occasions was tested by the DEA 

lab and determined to be "crack cocaine base." App. at 49- 

50. After the proffer, with one exception not here relevant, 

both Faulks and his counsel expressly confirmed that the 

government's version of the facts was substantially correct. 

The Presentence Investigation Report ("PSI") calculated 

the guideline range to be 87 to 108 months. This 

calculation assumed that the substance distributed was 

crack cocaine and that Faulks was entitled to escape the 

ten-year mandatory minimum provisions of 21 U.S.C. 

S 841(b)(1)(A) under the safety valve provisions of U.S.S.G. 

S 5C1.2. Neither side objected to the calculation of the 

guideline range in the PSI. 

 3 
Prior to the sentencing hearing, the government filed a 

"Motion for Downward Sentencing Departure Pursuant to 

Section 5K1.1." App. at 54. This motion characterizes the 

government's obligation under the plea agreement as one 

"to permit the Court to depart downward from the 

applicable Sentencing Guidelines range." Id. The motion 

represented to the court that Faulks had provided the 

government with substantial assistance in the prosecution 

of other persons. 

At the sentencing hearing, Faulks' counsel argued for a 

downward departure based on his agreement not to contest 

the administrative forfeitures. He insisted that this was 

meaningful because "[s]ome of these items, for example, 

diamond rings and such, were purchased before this 

indictment occurred or before his drug activity occurred." 

App. at 58-59. Although the prosecutor acknowledged that 

Faulks had "consented to the forfeiture of these items 

administratively," she, inexplicably, agreed with the court 

when it advised Faulks that he could still contest the 

forfeitures if he chose to do so. App. at 59. The court did 

not explain the basis for this advice. It denied the requested 

downward departure on the ground that Faulks could still 

contest the forfeitures and therefore had given up nothing. 

Thereafter, the prosecutor called upon the court to grant 

the S 5K1.1 motion. Almost immediately thereafter she was 

asked to advise the court what sentence the government 

was recommending. She replied that the government was 

"recommending a minimal departure . . . in the upper range 

of the guideline," because Faulks had opportunities to 

provide "significant information" but chose not to do so. 

App. at 66, 71. Faulks' counsel objected and called upon 

the court "to depart from the 87 months, a downward

departure, because then the 5K1.1 is meaningful." App. at 

70. The district court sentenced Faulks to 95 months of 

imprisonment. Shortly thereafter, it entered an order 

reflecting that it had granted the government'sS 5K1.1 

motion to depart. In its "Statement of Reasons" for its 

judgment, the court checked a box indicating that its 

"sentence departs from the guideline range upon motion of 

the government, as a result of defendant's substantial 

assistance," but then inserted by hand, "However, sentence 

is within guideline range." Addendum to Appellant's Brief. 

 4 
II. 

As Faulks stresses, there is an inconsistency between 

what the district court said and what it did. The departures 

provided for in Part K of the Guidelines Manual are

departures from "the range established by the applicable 

guideline." E.g. U.S.S.G. S 5K2.0 Grounds for Departure 

(policy Statement). Thus, when U.S.S.G. S 5K1.1 provides 

that "[u]pon motion of the government stating that the 

defendant has provided substantial assistance . . . the 

court may depart from the guidelines," it is authorizing the 

court to impose a sentence less than the range of sentences 

to which the Guidelines would otherwise limit the court's 

discretion. As the government acknowledged in its S 5K1.1 

motion, a motion under that section is, accordingly, 

intended "to permit the Court to depart downward from the 

applicable Sentencing Guidelines range." App. at 54. This 

fact is also reflected in the printed judgment form utilized 

by the district court which characterizes a departure as a 

"sentence [that] departs from the guideline range."

Addendum to Appellant's Brief. 

It follows that when someone is promised the possibility 

of "a departure from the guidelines" under U.S.S.G.

S 5K1.1, he or she may reasonably expect to be afforded the 

possibility of a sentence below the guideline range. It is 

thus important that United States Attorneys and district 

courts not use the term "departure" loosely. We are not 

confronted, however, with a claim that Faulks was misled 

by anyone to his detriment. He does not claim, for example, 

that the government failed to file a motion that he

reasonably believed it would file as a result of the plea 

agreement.1 

What we are confronted with is an argument that a 

sentencing judge who has granted a S 5K1.1 motion is 

powerless to impose a sentence within the guideline range. 

_________________________________________________________________ 

1. While it is true that the prosecutor, afterfiling the S 5K1.1 motion, 

recommended a sentence in the "upper range of the guideline" the Plea 

Agreement reserves to the government the right to "make whatever 

sentencing recommendation [it] deems appropriate." We are not called 

upon here, however, to determine whether the government's conduct was 

consistent with the Plea Agreement and we do not. 

 5 
We conclude that this claim should be rejected where, as 

here, the record provides assurance that the sentencing 

judge recognized his authority to depart below the guideline 

range and there is no ambiguity about the intended 

sentence. 

The initial issue in our analysis is whether a district 

court, in the absence of a S 5K1.1 motion, may consider the 

defendant's assistance to the government in deciding where 

to sentence within the guideline range. We believe the 

answer must be "yes." Congress directed the Commission to 

"assure that the guidelines reflect the general 

appropriateness of imposing a lower sentence than would 

otherwise be imposed . . . to take into account a 

defendant's substantial assistance in the investigation or 

prosecution of another person who has committed an 

offense." 28 U.S.C. S 994(n). While this directive has been 

partially implemented by the S 5K1.1 departure authority, 

we are confident that neither Congress nor the Commission 

considered what was "generally appropriate" to be 

inappropriate when a sentencing judge is exercising

discretion within the guideline range. To the contrary, we 

find consideration of substantial assistance for this purpose 

entirely consistent with the authority bestowed on 

sentencing judges. As the Second Circuit Court of Appeals 

observed in United States v. Huerta, 878 F.2d 89, 93 (2d 

Cir. 1989): 

 [The authorizing statute and the Guidelines do] not 

 foreclose a sentencing court from considering a 

 defendant's cooperation as a mitigating factor in 

 deciding what sentence within the applicable range 

 designated by the Guidelines is appropriate, whether or 

 not the government agrees. . . . Under the Guidelines, 

 courts may weigh a wide array of factors, 18 U.S.C. 

 S 3661, including "the nature and circumstances of the 

 offense and the history and characteristics of the 

 defendant," 18 U.S.C. S 3553(a)(1), to arrive at a 

 sentence that "reflect[s] the seriousness of the offense, 

 [ ] promote[s] respect for the law, and [ ] provide[s] just 

 punishment for the offense[.]" 18 U.S.C.S 3553(a)(2)(A). 

 We perceive no reason why a defendant's cooperation is 

 not a relevant factor in applying those standards. 

 6 
Having resolved this threshold issue, we proceed to

inquire whether the authority to consider substantial 

assistance in sentencing within the guidelines is affected in 

any way by the filing of a S 5K1.1 motion. The answer, of 

course, must be "no." Under the Guidelines, the sentencing 

court is free to deny the motion and sentence as it would 

have done in its absence. If the court believes it has given 

sufficient credit for the substantial assistance by moving 

down in the range, nothing we perceive in the Guidelines 

precludes it from avoiding undeserved credit by denying the 

government's motion. Thus, the district court in this case 

could have, quite properly, denied the motion for a

departure and then gone on to acknowledge Faulks' 

substantial assistance by sentencing lower in the guideline 

range than it would otherwise have done. In the interest of 

avoiding possible misunderstanding in the future, we 

suggest that this is the preferable way to achieve the result 

that the district court clearly sought here. This conclusion 

does not, however, provide an answer to the argument that 

Faulks here advances based on the fact that the district 

court granted, rather than denied, the motion to depart. 

The final step is to determine whether a sentencing court 

may grant a S 5K1.1 motion for a downward departure and 

nevertheless impose a sentence within the otherwise

applicable guideline range. We conclude that the district 

court's statement that it was granting a departure should 

be regarded as harmless error, and we hold that it,

accordingly, does not mandate a sentence below the 

guideline range. The record makes clear both that the 

district court was aware of its discretion to depart below the 

guideline range based on Faulks' substantial assistance 

and that, in its discretion, that assistance did not warrant 

a sentence below that range. Since, as we have 

demonstrated, the district court was authorized to impose 

the sentence that it in fact imposed, its judgment should 

not be disturbed. Cf. United States v. Baird, 109 F.3d 856 

(3d Cir.), cert. denied, 118 S. Ct. 243 (1997). 

Situations may undoubtedly arise in which an 

inconsistency between granting a S 5K1.1 motion and a 

sentence within the guideline range will raise questions 

about whether the defendant was misled, whether the judge 

 7 
understood that he had authority to depart, what sentence 

the judge actually intended, or whether the judge was 

otherwise confused. But this is not such a case. Faulks was 

told that he would receive a sentence for his cooperation 

below the guideline range only if the court found that 

appropriate and the court clearly did not. Contrary to 

Faulks' suggestion, there is nothing unclear or ambiguous 

about the court's 95 month sentence or about whether it 

was the sentence the court intended to impose. The court 

listened at great length to both sides' view of the value of 

Faulks' assistance and clearly decided that it would 

warrant an in-range reduction but not a sentence below the 

guideline range. Under these circumstances, we will not 

disturb the resulting sentence on this ground.2 

III. 

At sentencing, Faulks asked for a departure pursuant to 

U.S.S.G. S 5K2.0 based on his agreement not to contest 

certain administrative forfeitures. The Policy Statement of 

S 5K2.0 provides that: 

 Under 18 U.S.C. S 3553(b), the sentencing court may 

 impose a sentence outside the range established by the 

_________________________________________________________________ 

2. While the terminology chosen in S 5K1.1 suggests that a sentencing 

court is to calculate the applicable guideline range and then decide 

whether and how far to go below it, we note that at least two courts have 

adopted a different methodology. In United States v. King, 53 F.3d 589 

(3d Cir. 1995), and United States v. Hill, 70 F.3d. 321 (4th Cir. 1995), 

the district courts determined the total offense level, reduced the total 

offense level by a number of levels determined to be appropriate in light 

of the substantial assistance, and then calculated a guideline range 

using the reduced offense level. We had no occasion to pass judgment on 

this aspect of the district court's sentencing in King. We did suggest in 

United States v. Kikumura, 918 F.2d 1084 (3d Cir. 1990), however, that 

it is helpful in determining the extent of upward departures for 

sentencing courts to think in terms of the ranges that would be 

produced by using analogous offense level enhancements. Nevertheless, 

we do not read Kikumura to imply that it is improper in applying S 5K1.1 

for a district court to calculate the otherwise applicable guideline range 

and then make an appropriate reduction in the number of months to be 

served based on its appraisal of the value of the defendant's substantial 

assistance. 

 8 
 applicable guideline, if the court finds "that there exists 

 an aggravating or mitigating circumstance of a kind, or 

 to a degree, not adequately taken into consideration by 

 the Sentencing Commission in formulating the

 guidelines that should result in a sentence different 

 from that described." 

We have held that exposure to forfeiture is not a ground 

for departure under S 5K2.0 because "the Commission

considered forfeiture when creating the guideline range for 

terms of imprisonment." United States v. Shirk, 981 F.2d 

1382, 1397 (3d Cir. 1992). Faulks does not argue, however, 

that his exposure to forfeiture should entitle him to a 

downward departure. His contention, rather, is that his 

voluntary surrender of meritorious defenses to forfeiture 

should entitle him to a departure. In his view, as we 

understand it, this voluntary surrender evidences 

extraordinary contrition and acceptance of responsibility. 

While Faulks acknowledges that he has received a three 

level decrease for acceptance of responsibility under 

U.S.S.G. S 3E1.1, he points out that in United States v. 

Lieberman, 971 F2.d 989 (3d Cir. 1992), we approved a 

downward departure for extraordinary acceptance of 

responsibility even though a two level decrease had been 

granted under U.S.S.G. S 3E1.1. Faulks stresses that the 

downward departure in that case was justified in part by 

the fact that the defendant had agreed to pay more 

restitution than he believed he owed. 

Two other courts of appeals have held that the 

circumstances surrounding a payment of restitution may 

demonstrate an extraordinary degree of acceptance of 

responsibility, thus justifying a departure. In both 

instances, however, the court indicated that the mere 

payment of restitution or mandated forfeitures cannot, in 

and of itself, be the basis for departing from the Guidelines. 

See United States v. Hendrickson, 22 F.3d 170 (7th Cir. 

1994); United States v. Crook, 9 F.3d 1422, 1426 (9th Cir. 

1993). We agree. As the Hendrickson court put it, "[p]rompt 

payment of [a] forfeited amount does not transform 

forfeiture into a ground for departure from the guidelines." 

Hendrickson, 22 F.3d at 176 n.6. 

 9 
We do not read either Hendrickson or Crook to hold,

however, that a voluntary surrender of meritorious defenses 

to forfeiture can never evidence an extraordinary 

acceptance of responsibility, and we decline to so hold. 

Where it can be established that meritorious defenses have 

indeed been foregone under circumstances that reflect an 

extraordinary sense of contrition and desire to make 

amends for the offense, we see no basis for distinguishing 

our holding in Lieberman regarding the voluntary payment 

of restitution not thought to be owed. 

In this case, Faulks' counsel was not given an 

opportunity to build a record in support of his application 

for a departure for extraordinary acceptance of 

responsibility because of the court's unexplained 

conclusion that the plea agreement did not foreclose Faulks 

from contesting the civil forfeiture. It may well be that the 

prosecutor's affirmance of the court's conclusion now 

estops the government from relying on Faulks' waiver of his 

alleged defenses. But that seems to us irrelevant to the 

issue of whether Faulks' willingness to enter the agreement 

in the first place evidences an extraordinary acceptance of 

responsibility on his part. 

We conclude that Faulks should be given a fair 

opportunity to support his application for a downward 

departure for extraordinary acceptance of responsibility. By 

so concluding, we express no view about whether he will be 

able to make the required showing. On the surface, at least, 

this does not appear to be an extraordinary situation. But 

that is a judgment for the district court to make based on 

the best record that Faulks can provide. 

Nor does our conclusion here condemn sentencing judges 

to try forfeiture actions in the course of their sentencing 

hearings. Given that the defendant must demonstrate a 

truly extraordinary situation in order to be entitled to a 

downward departure for extraordinary acceptance of 

responsibility, we would expect there to be very few cases in 

which an application for a departure on this ground cannot 

be disposed of on the basis of a proffer by the defendant. 

IV. 

The indictment charged Faulks with distributing crack. It 

is clear from the transcript of the plea-taking proceedings 

 10 
that he understood this and that his plea was voluntary. A 

knowing and voluntary plea constitutes an admission of all 

material facts alleged in the indictment, even where those 

facts are not essential elements of the offense charged. See 

United States v. Dickler, 64 F.3d 818, 823 n.7 (3d Cir. 

1995); United States v. Parker, 874 F.2d 174 (3d Cir. 1989). 

There was a further admission that the substance 

distributed was crack when Faulks agreed with the 

government's account of the factual basis for the plea. 

These admissions provide ample evidentiary support for the 

district court's finding on the subject. See United States v. 

Powell, 113 F.3d 464, 470 (3d Cir. 1997). 

V. 

The judgment of the district court will be reversed, and 

this case will be remanded for further proceedings on 

Faulks' application for a downward departure under 

U.S.S.G. S 5K2.0.3 

A True Copy: 

Teste: 

 Clerk of the United States Court of Appeals 

 for the Third Circuit 

_________________________________________________________________ 

3. Our review of the record reveals no basis for requiring that 

subsequent proceedings in this case be conducted by a different district 

judge. Faulks' request that we do so is, accordingly, denied. 

 11