911 F. 2d 740 - United States v. E Zemek

MEMORANDUM**

Marie Zemek challenges the sentence she received for a guilty plea of possession with intent to distribute 500 grams or more of cocaine. We AFFIRM.

In a room at the Silver Cloud Motel, Zemek was arrested with her sister, Kristine Zemek, after police found cocaine in the room. She pleaded guilty to a violation of 18 U.S.C. Sec. 2 and 21 U.S.C. Sec. 841(b)(1)(B).

At her sentencing, Zemek challenged the addition of two points she received in her Guidelines calculation for having a leadership role in the wrongdoing and the failure to give credit for her substantial assistance to law enforcement officers. The government responded with testimony that Zemek had failed to provide any useful cooperation and much of the information she provided was unreliable. The government refused to move for downward departure from the Guidelines range for substantial assistance and the court noted that it could not require the government to make such a motion.

The court also found Zemek was a leader of her co-defendants and increased her offense level accordingly. Zemek was sentenced to 97 months imprisonment followed by four years of supervised release.

On appeal, Zemek argues for the first time that the government's failure to move for downward departure was a breach of her plea agreement. She further challenges the court's conclusion that she was the leader of her co-defendants.

At the threshold, the government argues that the court's refusal to downward depart is unreviewable because it is not one of the appealable issues enumerated in 18 U.S.C. Sec. 3742. This argument is meritless.

Although it is well settled that a district court's discretionary refusal to downward depart is insulated from review, United States v. Morales, 898 F.2d 99, 102 (9th Cir.1990), our precedent distinguishes such a discretionary decision from a court's legal conclusion that it lacks the authority to depart. Id. at 102-03 n. 2. This distinction comports with the rule that legal interpretations of the Guidelines are reviewed de novo. See United States v. Anderson, 895 F.2d 641, 644 (9th Cir.1990). We hold that a district court's conclusion that it lacks authority to depart is a legal interpretation of the Guidelines which we review de novo.

Review of this record reveals that we have jurisdiction because the district court believed it lacked the authority to downward depart without a motion for substantial assistance by the government. The court did not explicitly say that it believed it was without authority to depart downward without the government's motion, but such explicitness is unnecessary where the court's belief is easily inferable from the record.

The judge said to the government attorney, Jones:

THE COURT: Well, I can't, obviously, request--require you to make that 5(k)1.1. If you don't want to do it, you don't have to do it, and you won't do it, as I understand.

MR. JONES: That's correct, you Honor.

THE COURT: All right, so then the guidelines are 97 to 121 months?

ER 12 at 28.

To the defendant's protestations over the government's failure to make the Sec. 5K1.1 motion, the court replied:

THE COURT: ... The government attorney is the one who determines whether or not to make a motion for your cooperation. They declined to do so, it's their feeling that the cooperation since this arrest was not substantial, and they will not make that recommendation.

DEFENDANT: I've done everything I possibly could. I even photocopied magazines....

THE COURT: I believe that you probably have, but the government does not. The government is the one that has to be convinced.

RT 45 at 31-32.

These excerpts demonstrate that the court believed it had no authority to depart downward on the basis of substantial assistance absent a motion from the government. We thus have jurisdiction to consider the merits of the appeal.

The district court was correct in its understanding that a downward departure for substantial assistance is available only upon motion by the government.1 United States v. Ayarza, 874 F.2d 647, 653 (9th Cir.1989). Zemek argues, however, that the government had committed itself to making a Sec. 5K1.1 motion in its plea agreement.2 We disagree.

A plea agreement is contractual in nature and is measured by contractual standards. United States v. Read, 778 F.2d 1437, 1441 (9th Cir.1985), cert. denied, 479 U.S. 835 (1986). If disputed, the terms of the agreement are determined by objective standards. United States v. Clark, 781 F.2d 730, 731 (9th Cir.1986).

Nothing in this agreement suggests that the government committed itself to filing a Sec. 5K motion. It states in relevant part:

3. The Government further agrees to recommend that the appropriate disposition of this case is imposition of a term of imprisonment at the low end of the Sentencing Commission Guideline range as determined by this court.

ER 8.

Zemek's argument is meritless. She received exactly what she bargained for, a sentence at the low end of the Guidelines range.

We review for clear error a district court's enhancement of sentence for the defendant's leadership role in a crime. United States v. Wills, 881 F.2d 823, 828 (9th Cir.1989).

The record shows that Zemek directed and paid one defendant to rent the motel room, received funds for the purchase of cocaine and was the supplier of cocaine to one of the co-defendants. These factors, when scrutinized for clear error, are adequate to sustain the district court's conclusion that Zemek was the leader of her two co-defendants.

AFFIRMED.