UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 93-3736

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

CURTIS JOHNSON,

Defendant-Appellant.

CONSOLIDATED WITH

No. 93-3740

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

DARRYL SHELTON,

Defendant-Appellant.

Appeals from the United States District Court

for the Eastern District of Louisiana

(September 13, 1994)Before POLITZ, Chief Judge, DUHÉ and BARKSDALE, Circuit Judges.

POLITZ, Chief Judge:

Convicted on guilty pleas of conspiracy to distribute cocaine

in violation of 21 U.S.C. §§ 841(a)(1) and 846, Curtis Johnson and

Darryl Shelton appeal their se ntences. Concluding that the

downward departure provision of the Sentencing Guidelines may have

been incorrectly applied, we vacate the sentences and remand.

Background

Johnson, Shelton, and Amos Conde attempted to purchase five

kilograms of cocaine from an undercover DEA agent. After they

viewed the cocaine and showed the DEA agent their money, the men

were arrested. Curtis, Shelton, and Conde were indicted for

conspiracy to distribute cocaine and attempted possession with the

intent to distribute cocaine in violation of 21 U.S.C. §§ 841(a)(1)

and 846. They pleaded guilty to the conspiracy count and the

possession count was dismissed.

Prior to sentencing the government filed section 5K1.1 motions

requesting downward departure in the se ntencing of Johnson and

Shelton based on their assistance to the government. Johnson and

Shelton asked for greater departures than the 10 months suggested

by the go vernment. The district court accepted the government's

recommendations and sentenced Johnson to 60 months imprisonment and

Shelton to 77 months imprisonment. Both timely appealed and their

appeals were consolidated.

Analysis

Johnson and Shelton received downward departures in their

sentences pursuant to U.S.S.G. § 5K1.1, which provides:1 United States v. Mariano

, 983 F.2d 11 50 (1st Cir. 1993);

United States v. Francois

, 889 F.2d 1341 (4th Cir. 1989), cert

. denied , 110 S.Ct. 1822 (1990).

2 U.S.S.G. § 5K1.1, comment. (n.3).

3 See Mariano ; United States v. Keene , 933 F.2d 711 (9th Cir.

1991); see also Unite d States v. Stowe , 989 F.2d 261 (7th Cir.

3 Upon motion of the government stating that the defendant

has provided substantial assistance in the investigation

or prosecution of another person wh o has committed an

offense, the court may depart from the guidelines.

(a) The appropriate reduction shall be determined by

the court for reasons stated that may include, but

are not limited to, consideration of the following:

(1) the court's evaluation of the significance and

usefulness of the defendant's assistance,

taking into consideration the governm ent'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.

When the government files a section 5K1.1 motion, the sentencing

court may depart below the guideline range if it finds that

substantial assistance was rendered to the government. The

propriety and extent of the departure must be determined by the

court, based on its evaluation of the facts and circumstances of

the case. 1 The government's evaluation and recommendation, while

deserving substantial weight, 2 is but one factor to be considered

in this equation. 3 As the commentary to section 5K1.1 explains,1993).

4 U.S.S.G. § 5K1.1, comment.

5 Mariano ; United States v. Spiropoulos

, 976 F.2d 155 (3d Cir.

1992); United States v. Udo

, 963 F.2d 1318 (9th Cir. 1992); United

States v. Munoz

, 946 F.2d 729 ( 10th Cir. 1991); U nited States v.

Richardson

, 939 F.2d 135 (4th Cir.), cert

. denied

, 112 S.Ct. 599

(1991), and cert

. d enied

, 112 S.Ct. 942 (1992); Keene ; United

States v. Damer

, 910 F.2d 1239 (5th Cir.), cert

. denied

, 111 S.Ct.

535 (1990); United States v. Castellanos

, 904 F.2d 1490 (11th Cir.

1990); United States v. Pippin , 903 F.2d 1478 (11th Cir. 1990).

6 Spiropoulos ; Udo ; United States v. Cheng Ah-Kai

, 951 F.2d 490

(3d Cir. 1990); Keene; Damer; Pippin

.

4 "[t]he nature, extent, and significance of assistance can involve

a broad spectrum of conduct that must be evaluated by the court on

an individual basis." 4 Thus, when ruling on a section 5K1.1

motion, the sentencing court must exercise its independent judgment

and discr etion first to determine whether departure is warranted

and, finding such, the extent of that departure. 5 In doing so the

court is free to deny departure or to grant a departure which is

greater or smaller than that recommended by the government. 6

Johnson and Shelton contend that the district court abdicated

its duty to conduct an independent inquiry into their cases to

determine the appropriate departu re. They claim that the court,

based on a self-imposed policy, apparently felt compelled to adopt

automatically the recommendations of the government. Johnson and

Shelton under score the court's response to their pleas for a

greater departure. The court explained that although "technically

speaking, [it could] do it

. . . [it had] the power," "[its] policy

is, [it doesn't] do it." When counsel suggested that "just taking

the government's recommendation is not acting independently," the7 See Cheng Ah-Kai and Keene (while prosecutor is in best

position to know whether defendant's cooperation was helpful,

extent of assistance and its impact on the sentence are matters

left to sentencing judge); see also United States v. Hartford

, 489

F.2d 652 (5th Cir. 1974) (pre-guidelines case) (court policy of

imposing ma ximum penalty in all narcotics offenses held improper

abdication of duty to consider each defendant's case individually

based on all relevant facts).

5 court responded that "[it's] not acting independently.

. . . [T]he

government is in the best position" to know what downward departure

i s appropriate. Johnson and Shelton contend that these comments

clearly demonstrate that, as a matter of policy, the court has

bound itself to accept the recommendation of the government on

matters of downward departure. They urge that such a policy

constitutes an inappropriate abdication of the court's

responsibilit y, effectively placing same in the hands of the

prosecutor. 7

It is not clear from the record whether the district court

felt compelled, as appellants suggest, to deny a departure greater

than that recommended by the government. Although the court

referred to its power and discretion in determining whether and to

what extent to depart, the record leaves open the question whether

the court also adequately recognized its duty to evaluate

independently each defendant's case before making the section 5K1.1

determinations. The mere verbal acknowledgment of the power to

deny the government's motion, or to deviate f rom its

rec o mmendation, does not suffice to acquit the court's

responsibilities. The court is charged with conducting a judicial

inquiry into each individual case before independently determining8 See U.S.S.G. § 5K1.1, comment.; see also Mariano; Keene;

Castellanos

.

9 See Mariano; Keene; Castellanos

.

1 0 Although the government argues that the defendants failed to

add uce evidence relevant to their cooperation and warranting

further departure, we do not reach this issue. The district court

did not articulate the basis for its refusal to depart from the

guideline computation by more than 10 months. It is not for us to

say, in the first instance, whether the defendants' proffered

reasons justify a greater reduction in their sentences. That is

first for the sentencing judge.

6 the propriety and extent of any departure in the imposition of

sentence. 8 While giving appropriate weight to the government's

a ssessment and recommendation, the court must consider all other

factors relevant to thi s inquiry. 9 Because of the uncertainty of

the factors considered by the court a ` quo

, and to ensure the

appropriate disposition of these matters, we VACATE the sentences

of Johnson and Shelton and REMAND for resentencing consistent

herewith. 10