On Appeal From the United States District Court For the District of New Jersey. (D.C. Crim. Action No. 92-cr-00713-2).
Before: Stapleton and Cowen, Circuit Judges, and Huyett, District Judge*fn*
STAPLETON, Circuit Judge:
Juan Melendez appeals his sentence. The first issue presented concerns a district court's authority to depart downward from a statutory minimum sentence based upon the defendant's substantial assistance with a criminal investigation where the government has moved under USSG § 5K1.1 for a departure below the U.S. Sentencing Guideline range but has not moved under 18 U.S.C. § 3553(e) for a departure below the statutory minimum. We hold that, under such circumstances, a district court's authority under § 5K1.1 to depart below the Sentencing Guideline range does not permit it to depart below a lower minimum sentence set by statute. The second issue concerns Melendez's motion for a downward departure pursuant to application note 17 to USSG § 2D1.1. We agree with the district court that § 2D1.1 application note 17 does not permit a district court to depart downward from a statutory minimum sentence. The final issue concerns Melendez's contention that the district court should have permitted him to withdraw his guilty plea. The record establishes that Melendez in fact did not attempt to withdraw his plea before the district court.
Melendez and codefendant Edwin Moya were approached by confidential informants of the United States Customs Service posing as importers and transporters of cocaine. This initial contact led to several meetings, during which Melendez, Moya, and the confidential informants discussed the availability of cocaine for distribution. The Discussions culminated in a meeting during which Melendez and Moya gave the confidential informants $10,000 as a deposit toward the transportation expenses for 24 kilograms of cocaine. The next day, the two codefendants deposited an additional $2500 for the transportation of the cocaine.
Shortly thereafter, Moya and Melendez were arrested by New York authorities on unrelated drug charges. After their arrest, Moya's common law wife, Anna Maria Ferrara, her brother Raphael Ferrara, and her uncle Bienvenido Polanco, held further negotiations with the confidential informants for a 225-kilogram cocaine purchase. Government agents ultimately made a controlled delivery of 30 kilograms of cocaine to Raphael Ferrara and Polanco. Raphael Ferrara and Polanco were arrested shortly after taking possession of the drugs and Anna Maria Ferrara was arrested on the following day.
Melendez was charged with conspiring, in violation of 21 U.S.C. § 846, to distribute and to possess with intent to distribute more than five kilograms of cocaine, a crime that carries a statutory minimum sentence of 10 years' imprisonment. 21 U.S.C. § 841(b)(1)(A). He originally pleaded not guilty. Plea negotiations ensued, however, and Melendez ultimately signed a cooperating plea agreement. The agreement provided, in pertinent part, that in return for Melendez's cooperation with the government's investigation and his pleading guilty, the government would move for a downward departure from the applicable Guideline range pursuant to USSG § 5K1.1. The agreement did not require the government to file a § 3553(e) motion to depart below the statutory minimum, however. Melendez retracted his plea of not guilty and pleaded guilty to the charged conspiracy.
The probation officer determined that the Guideline sentencing range applicable to Melendez's crime was 135 to 168 months. The government, in accordance with the agreement, moved for a downward departure from that Guideline range, pursuant to § 5K1.1, in recognition of Melendez's substantial assistance in the investigation or prosecution of another person. The district Judge granted that motion, and departed downward from the sentencing range set by the Guidelines. However, because the government had not also moved pursuant to § 3553(e), the Judge ruled that he had no authority to depart below the statutory minimum and meted out the 10-year minimum sentence required by statute. Melendez maintains that this was error. He argues that a § 5K1.1 motion not only triggers the court's authority to depart downward from the sentencing level set by the Guidelines but also triggers the court's authority to depart below a lower, statutory minimum.
The government maintains that Melendez waived or forfeited his right to appeal this issue, claiming that Melendez never formally argued to the district court that the government's § 5K1.1 departure motion empowered the court to depart below the 10-year statutory minimum. To preserve the right to appeal a district court ruling, "it is sufficient that a party, at the time the ruling . . . is made or sought, makes known to the court the action which that party desires the court to take . . . and the grounds therefor." Fed. R. Crim. P. 51. Moreover, "the general rule requiring counsel to make clear to the trial court what action they wish taken should not be applied in a ritualistic fashion. If the problem has been brought to the attention of the court, and the court has indicated in no uncertain terms what its views are, to require an objection would exalt form over substance." 3A Charles A. Wright, Federal Practice & Procedure § 842, 289-90 (1982 & Supp. 1994); see also Government of Virgin Islands v. Joseph, 964 F.2d 1380, 1384-85 (3d Cir. 1992) (rejecting the government's contention that an issue was not preserved for appeal because the court had been made aware of the issue and because a contemporaneous objection would not have further aided the district court); cf. United States v. 57.09 Acres of Land, 757 F.2d 1025, 1027 (9th Cir. 1985) (noting that the government did not waive its right to object to jury instructions because the court had been made "aware of the government's objection"); Bass v. Department of Agriculture, 737 F.2d 1408, 1413 (5th Cir. 1984) (noting the established rule in civil cases "that formal objection is not necessary if the trial Judge was fairly apprised of the nature of the objection").
Our review of the record reveals that Melendez in fact "[made] known to the court the action which [he] desired the court to take." As the Assistant United States Attorney admitted during the sentencing hearing: "Both defendants through counsel have argued that the Court depart downward from this mandatory minimum." (App. at 24a.) Moreover, the district court was made well aware of the underlying legal debate over whether a § 5K1.1 motion permits a district court to depart below a statutory minimum. The government admitted during the sentencing hearing that "some arguments indicate that the law doesn't require the Court to impose the mandatory minimum." (App. at 24a.) Most importantly, the district court clearly understood that Melendez was asserting these arguments; it expressly addressed and resolved the issue of the court's authority to depart below the statutory minimum. In this context, there was no need for Melendez to take the additional step of repackaging the government's statement as his own formal objection to preserve his right to appeal. Any such requirement would elevate form over substance. Thus, we conclude that this issue is properly preserved for appeal and we will proceed to the merits of Melendez's argument.
Congress has decreed that a person who distributes, or conspires to distribute, five kilograms or more of cocaine "shall be sentenced to a term of imprisonment which may not be less than 10 years." 21 U.S.C. § 841(b)(1)(A). This statute represents a Congressional judgment about the seriousness of this ...