Revised November 9, 1999

UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

____________

No. 98-30814 Summary Calendar ____________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

SCOTT HASHIMOTO,

Defendant-Appellant.

Appeal from the United States District Court for the Eastern District of Louisiana

October 20, 1999

Before DAVIS, EMILIO M. GARZA, and DENNIS, Circuit Judges.

PER CURIAM:

Scott Hashimoto appeals his resentence for conspiracy to possess methamphetamine with

intent to distribute and for money laundering. He argues that the sentence must be vacated because

the district court erred in sentencing him within the applicable guideline range after granting the

government’s motion for a downward departure under U.S.S.G. § 5K1.1. We affirm Hashimoto’s

sentence.

1 Hashimoto was convicted in 1996 of possession of methamphetamine with intent to distribute

and for conspiracy to launder money. His total offense level of 31 included an addition of two levels

because Hashimoto was an organizer and supervisor of the drug trafficking. Combined with his

Category I criminal history, Hashimoto’s guideline sentencing range was 108-135 months. However,

because Hashimoto was subject to a mandatory minimum sentence of ten (10) years, the guideline

range was revised to 120-135 months. Hashimoto objected to the two-level increase for his alleged

role as a manager or supervisor. The objection was overruled. The district court then granted the

government’s motion for downward depart ure under § 5K1.1, based on Hashimoto’s substantial

assistance. It intended to depart downward ten percent (10%) from Hashimoto’s minimum sentence

of 120 months, and thereby sentenced him to 108 months.1

On appeal, we found that the two-level enhancement for offense role did not apply.

Hashimoto’s original sentence was vacated and his case remanded for resentencing. See United

States v. Hashimoto,

(5th Cir. 1998) (unpublished). At resentencing, the district court

found that Hashimoto’s guideline range was 70-87 months, based on a total offense level of 27 and

a criminal history category I. The government again filed a motion for downward departure pursuant

to § 5K1.1. The district court again granted the motion. In its Statement of Reasons for imposing

the 72-month sentence (Statement of Reasons), the district court noted that its previous departure

had been 10% of the “guideline sentence,” presumably meaning the statutory minimum of 120

1 The district court’s sentence did not actually represent a 10% departure from the minimum sentence for which Hashimoto was eligible. Once it granted the § 5K1.1 motion for departure, the court could have reduced Hashimoto’s sentence from the low end of the actual guideline range (108- 135 months). See, e.g., United States v. Underwood,

(5th Cir. 1995) (holding that § 5K1.1 motion authorizes greater departure from statutory minimum sentence and lesser departure from guideline range and that extent of departure is entirely within district court’s discretion).

2 months, “or about one offense level.” Intending to duplicate that departure, the district court reduced

the offense level to 26, producing a guideline sentence range of 63-78 months. The court then

sentenced Hashimoto to 72 months. Hashimoto filed a motion to correct his sentence under Fed. R.

Crim. P. 35(c). He contended that the first sentence had represented a 10% departure from the

minimum guideline sentence of 120 months. But, despite the district court’s stated effort to duplicate

the prior result, the new 72-month sentence was not a 10% departure from the minimum guideline

sentence of 70 months. In fact, it was not a deviation from the sentencing range of 70-87 months at

all. Hashimoto claimed this “in effect, negates the grant ing of the 5K.1.1 motion.” Hashimoto

assumed that the district court had made an arithmetical error and asked that the sentence be revised

to 63 months, which would have been a 10% departure from the minimum guideline sentence of 70

months.

The district court denied Hashimoto’s Rule 35(c) motion. It denied that an arithmetical error

had been made. The district court explained the 72-month sentence by stating that it “intended to

reduce ten percent from the middle of the applicable [guideline sentencing] range, rather than the

minimum of the range, taking into account the overall reduction in sentence the defendant received

on resentencing.” The district court’s reasoning in denying Hashimoto’s motion to correct conflicts

with its explanation in the Statement of Reasons that the resentence was designed to duplicate the

departure represented by the vacated 108-month sentence.

Hashimoto appeals the district court’s denial of his Rule 35(c) motion. He claims that, having

granted the government’s § 5K1.1 motion for departure, the district court was required to impose

a sentence which was below the low end of the original guideline range (70 months). By not doing

3 so, he claims, it fails to follow its own order granting the departure, requiring reversal.2

District courts have almost complete discretion to determine the extent of a departure under

§ 5K1.1. See United States v. Alvarez,

(5th Cir. 1995) (“[T]he decision as to the

extent of the departure is committed to the almost complete discretion of the district court.”). The

only ground on which the defendant can appeal the extent of a departure is that the departure was

a violation of law. See

(“[T]he district court has the discretion to choose the appropriate

sentence within the applicable Guideline range, and to determine the appropriate extent of a

departure; thus a defendant cannot appeal the extent of a departure made pursuant to section 5K1.1

unless the departure was made in violation of law.”); see also

(a) (West 1999)

(limiting defendant’s right to appeal his sentence to certain categories of cases, of which Alvarez

found only “sentence imposed in violation of law” applied to appeals of extent of downward

departure).

The district court also has almost complete discretion to deny the government’s § 5K1.1

motion to depart downward. See United States v. Myers,

(5th Cir. 1998). The

refusal to depart downward can be reversed only if the refusal was in violation of law. See United

States v. Miro,

(5th Cir. 1994) (expressly holding that jurisdiction over denial

of a § 5K1.1 motion exists only if in refusal is violation of law); United States v. Rojas,

(5th Cir. 1989) (establishing lack of jurisdiction in this situation).

Hashimoto does not allege that the district court’s sentence was a violation of law. We would

thus clearly lack jurisdiction over Hashimoto’s case if he was challenging either 1) the extent of a

departure that was made or 2) the denial of a § 5K1.1 motion. But Hashimoto does neither.

2 Hashimoto expressly disclaims vindictiveness as an issue in this appeal

4 Hashimoto admits that the district court granted his § 5K1.1 motion. Thus our rule that we will not

review the denial of a § 5K1.1 motion does not apply. Hashimoto’s assertion is that the trial court

failed to follow its own order))that it did not in fact grant a departure, because it sentenced him

within the applicable guideline range. The Alvarez holding that we lack jurisdiction to review the

extent of a departure presumes that a departure has been made. If Hashimoto is correct that no

departure has been made, Alvarez does not apply. We have not addressed this situation, in which the

district court granted a § 5K1.1 motion for downward departure, expressly stated that it was granting

a departure pursuant to the motion, and yet handed down a sentence which was within the original

sentencing range.

While Hashimoto does not support his assertion, he is correct that his 72-month sentence did

not represent a downward departure under the guidelines. A departure under § 5K1.1 is a departure

from the applicable sentencing guideline range. See United States v. Faulks,

(3d Cir. 1998) (holding that a sentence within the applicable sentencing range is not a § 5K1.1

departure and explaining “[t ]he departures provided for in Part K of the Guidelines manual are

departures from ‘the range established by the applicable guidelines’”); see also U.S.S.G. § 5K2.0

(1998) (policy statement) (cited in Faulks and implying that departure is “sentence outside the range

established by the applicable guidelines”). In this case, the district court’s sentence of 72 months was

within the sentencing guideline range of 70-87 months. It was therefore not a departure, and not a

proper response to granting the government’s § 5K1.1 motion for downward departure. The district

court used a flawed methodology in relying on reducing Hashimoto’s offense level to accomplish a

departure. Even though reducing the offense level clearly resulted in a reduced sentence, it did not

ensure that the sentence was outside–and therefore a departure from–the guideline range of 70-87

5 months. Rather, the reduced offense level produced a new sentencing range (63-78 months) which

overlapped with the original range (70-87 months), allowing the district court to choose a 72-month

sentence which, although a 10% reduction from what it otherwise would have been, was not a

departure from the original 70-87 month range, and therefore not consistent with its statement

granting the government’s § 5K1.1 motion.

The district court erred. But we hold that its error does not require us to vacate Hashimoto’s

sentence. Hashimoto presents no case law in support of his position that reversal is required. He

merely claims that this is an issue of first impression. But in Faulks,

, the Third Circuit

addressed this same situation. Defendant Faulks’ original guideline range was 87 to 108 months. The

district court granted the government’s § 5K1.1 motion, yet still sentenced Faulks to 95

months))within the original guideline range. The Third Circuit recognized the issue before it as

whether “a sentencing judge who has granted a § 5K1.1 motion is powerless to impose a sentence

within the guideline range.” Id. at 136. Faulks accepted that the district court had erred in stating

that it was granting the § 5K1.1 motion for downward departure. See supra; see also id. at 135

(“there is an inconsistency between what the district court said and what it did”). But it found the

error “harmless”. Id. at 136 (“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 Third Circuit then held that the district court’s sentence

should stand because 1) the sentencing judge recognized his authority to depart below the guideline

range and 2) there was no ambiguity about the intended sentence. See id. (“We conclude that this

claim [that reversal was required] 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

6 no ambiguity about the intended sentence.”). Faulks also relied on the fact that the district court was

authorized to impose the sentence it in fact imposed. See id. at 137 (referencing fact that, under

Third Circuit law, district court could have denied departure anyway).

In this case, the district court clearly recognized its authority to depart from the statutory

guidelines. The court’s explanations of the 72-month sentence, while inconsistent, both reflect 1)

an attempt to grant a departure for substantial assistance pursuant to § 5K1.1; 2) an awareness of its

discretion thereunder to reduce Hashimoto’s sentence as much as it saw fit; 3) an explanation for the

reduced sentence actually chosen. Thus, both reflect a recognition of the authority to depart from

the guidelines. The sentence was also unambiguous. See Faulks,

(noting lack of

ambiguity because court “listened at great length” to discussion of issue and “clearly decided that it

would warrant an in-range reduction but not a sentence below the guideline range”). Finally, like

the district court in Faulks, the district court here had the discretion to impose the sentence it in fact

imposed. See, e.g., supra; Myers,

(in Fifth Circuit, district court has discretion not

to grant downward departure). According to Faulks, the only authority on point, we should not

disturb the district court’s sentence.

Moreover, in the Fifth Circuit , the district court’s discretion in this general area is well

established. See supra; see also Koon v. United States,

,

, 2043-

47 (1996) (discussing discretion due sentencing court and noti ng that departure decisions are

generally reviewed at most for abuse of discretion). While Hashimoto’s situation is novel, the general

principle that we defer to a district court’s sentencing decision clearly still applies. Particularly when

the limited authority available supports upholding the sentence, we will not vacate it. The district

7 court’s denial of Hashimoto’s Rule 35(c) motion is AFFIRMED.3

3 Like the Faulks court, we encourage district court judges presented with this situation in the future to avoid confusion and achieve the same outcome by denying the government’s motion for a departure and acknowledging the defendant’s substantial assistance by sentencing lower in the guideline range than it otherwise would have. See Faulks,

. This is well within the district court’s discretion.

8