Appeal from the United States District Court for the Eastern District of Pennsylvania. (D.C. Criminal Action No. 90-00555-04)
Present: Hutchinson, Cowen and Seitz, Circuit Judges
HUTCHINSON, Circuit Judge.
Will Higgins (Higgins) appeals the district court's refusal to depart downward under the Sentencing Guidelines based on various mitigating circumstances and his offer of substantial assistance to the government. The district court did not depart downward because it held that the Sentencing Guidelines prohibited a district court from departing based on the proffered mitigating circumstances and that it was similarly prohibited from departing on the basis of substantial assistance in the absence of a motion by the government to that effect.
We will reverse in part and affirm in part. In extraordinary cases a district court can consider the mitigating circumstances of a criminal defendant in deciding whether to depart downward. If the district court thought that Higgins's circumstances were extraordinary, it had the discretion to consider a departure. However, the district court correctly ruled that it could not depart downward in Higgins's case on the basis of substantial assistance in the absence of a motion by the government. We will remand this case to the district court so that it may determine whether the proffered mitigating circumstances are extraordinary and thus may serve as the basis for a downward departure.
On June 5, 1991, Higgins was convicted of one count of conspiracy to distribute cocaine base, see 21 U.S.C.A. § 846 (West Supp. 1992), and four counts of distributing or aiding and abetting the distribution of cocaine base, see 21 U.S.C.A. § 841(a)(1) (West 1981); 18 U.S.C.A. § 2(a) (West 1969), after a jury trial in the United States District Court for the Eastern District of Pennsylvania. After his conviction Higgins and his counsel met with the responsible Assistant United States Attorney and case agents in order to offer Higgins's assistance in apprehending other persons engaged in trafficking drugs. The government rejected Higgins's offer and did not move for a downward departure under Sentencing Guideline 5K1.1.
The United States Probation Office (Probation Office) determined that Higgins's criminal history category was II and that his offense level was thirty-eight. This resulted in a guideline range of 262 to 327 months. The statutory mandatory minimum that Higgins could be sentenced to was ten years.
The district court sustained a number of Higgins's objections to the Probation Office's presentence report. It refused a two-point enhancement for the use of a firearm during the offense of conviction and a two-point enhancement for obstruction of Justice, and granted a two-point reduction for Higgins's role in the conspiracy because he was a minor participant. The district court rejected Higgins's objection to the calculation of the amount of cocaine base involved in the offense. This left Higgins with an offense level of thirty-two and a criminal history category of II which dictates a guideline range of 135 months to 168 months.
Higgins's counsel sought to have the district court depart downward for two reasons. Counsel contended that Higgins's young age at the time of the offense, his steady employment history and his strong family ties merited a downward departure. Counsel also sought a downward departure based on Higgins's offer of assistance to the government, which counsel contended was objectively substantial, even in the absence of a motion by the government for such a downward departure.
The district court rejected these arguments on the ground that it lacked the power to depart for these reasons under any circumstances.
Counsel: [I] respectfully, with all sincerity request the Court to seriously give consideration to that downward departure . . . for factors that are not specifically taken into account--
COURT: What are the factors that weren't taken into account[?] The guidelines say you can't consider age, employment history, or family ...