*1 “[Djrug smuggling otherwise. is a ser- elude offense,” universally
ious and condemned
therefore, likely “no conflict to be created regulation drug traf- extraterritorial Vasquez-Velasco,
fickers.”
(quoting Restatement
(1987)). giving We conclude that extraterri-
torial effect to 963 MacAUister’s case is
appropriate.
Finally, argues, in the alterna- MacAllister
tive, subject matter has been agents. DEA
manufactured the efforts of support
There is no evidence in the record to reject argument, and we therefore it.
AFFIRMED. America,
UNITED STATES of
Plaintiff-Appellee, OROZCO,
Alain a.k.a. Allan Jene
Velasquez, Defendant-
Appellant.
No. 97-8213. Appeals,
United States Court of
Eleventh Circuit.
Nov. (e) importance regulation (g) the extent to which another have state political, legal, system; international or economic regulating activity; an interest in (f) regulation the extent to which the is consis- (h) regulation the likelihood of conflict with sys- tent with the traditions tem; the international state. another *2 Atlanta, Geor- from South Florida
cocaine
9, 1990,
pled guilty in the
July
gia. On
Georgia
conspiring
Northern District of
distribute,
manufacture,
possess
and
cocaine
hydrochloride
violation
base and cocaine
making
§
a false state-
846 and
Investigation
Bureau of
ment to the Federal
identity in
of 18
to conceal his
violation
In an effort
to have the
U.S.C.
depar-
§ 5K1.1
government file a U.S.S.G.
sentencing,
informed
ture motion at
Orozco
knowledge of the co-
government of his
operation in which he was
caine distribution
to other information
involved.
addition
conspira-
regarding the cocaine distribution
Rodriguez,
Armando
a
cy, Orozco identified
pro-
major
for whom he
cocaine distributor
services,
transportation
and re-
vided cocaine
concerning their transactions.
lated details
however,
government,
concluded that
entirely
truthful and had
Orozco was
Manehel, Atlanta, GA, for De-
Howard J.
information about the co-
minimized some
fendant-Appellant.
Additionally,
operation.
caine distribution
Alexander,
Atty., James T. Mar-
Kent
supplied could not be
the information that he
Atlanta, GA,
tin,
Atty.,
for Plain-
Asst. U.S.
against
Orozco’s
used
tiff-Appellee.
charged in the indictment
four codefendants
or others that he named because
venue
corroborating
problems or lack of
evidence.
Concluding that the information
BIRCH,
Judge,
HILL
Before
Circuit
and
prior
to his
was insuffi-
Orozco
KRAVITCH,
Judges.
Senior Circuit
assistance, the
qualify
cient to
as substantial
for a reduction
did
move
BIRCH,
Judge:
Circuit
his sentence under section 5K1.1. On Novem-
presents
This ease
the issue of whether
was sentenced to 151
ber
Orozco
judge
district
under Federal
imprisonment
for his role
months
Procedure
Rule Criminal
conspiracy.
court
cocaine distribution
This
motion for reduction of sentence when infor-
States v.
affirmed his sentence. See United
provided by a
is useful in
mation
defendant
(11th Cir.1992) (mem.).
Orozco,
964 F.2d
coconspirator,
convicting a
but the assistance
sentencing, the
of Orozco’s
Within
occurs more than one
preliminary
government filed a
motion under
information was known
sentence and the
judge
that advised the district
sentencing.
The dis-
cooperation
not been com-
that Orozco’s
had
judge
trict
that he was without
determined
pleted.
government requested
the dis-
jurisdiction to rule
this motion outside the
on
judge not to rule on the motion until it
trict
prescribed
period.
affirm.
We
supplemented
was
or withdrawn. When
I. BACKGROUND
information,
Orozco furnished no additional
preliminary
December, 1989,
withdrew its
defendant-appellant,
Orozco,
transporting
Alain
motion.1
was arrested
Orozco,
1309, 1318,
concurrence, Judge
special
n. 3
In her
Kravitch
United States
J.,
(11th Cir.1998) (Kravitch,
special-
slates "that the record is void
tion to
concurring
informa-
”
support
reason that the
added).
contrary,
ly) (emphasis
To
the rec-
preliminary
withdrew
was
its
provides
support
ord
sufficient
for this statement.
cooperation.
because Orozco
no further
8, 1992,
January
On
the district
noticed
7, 1992,
hearing
February
his arrest on December
Within the time from
on
for the Rule 35
November, 1990,
1989, R1-7(A),
Orozco, Ledesma,
see
motions for
and Griffin. See
R1-13KB).
4, 1992,
regarding
February
the extensive co-
On
the AUSA
conspiracy
caine distribution
in which he
hearing
moved for a continuance of this
Orozco,
government through
been involved to the
various
cooperation
stated the
status of
Ledesma
debriefings,
debriefing
Therein,
R1-131(C).
At a
see Rl-107-1.
and Griffin. See
explains
the AUSA
*3
5, 1990,
Rodriguez
identified
as a co-
June
he
government
prelimi-
filed the
supplier, the
about which this
caine
information
nary
procedural
Rule 35 motions "as the
device
case is concerned. See R5-10. The information
whereby
may
the Court
consider a reduction of
however,
regarding Rodriguez,
was not useful to
previously imposed
the
sentences after more
government at
the
that time because
passed
than one
has
from the date of sen-
(AUSA's
fugitive.
explanation
a
at 7
was
to
See id.
¶
tencing.” Id. at 1 1. The AUSAthen states the
judge
hearing
at
the district
the
on the Rule 35
cooperation
status of
for each defendant. With
motion
not
information that is not usable does
Orozco,
respect to
the AUSAstates that "/a/s of
assistance).
qualify
for substantial
Orozco's
continuance,
filing
the
this
Orozco
of
fur-
plea agreement required
cooperate fully
him to
cooperation,
nished no
but will be a wit-
further
give
with the
and to
"truthful testi-
investigation
ness in an
which has not been iden-
¶
R1-82(D)-1 2(c),
mony,"
to obtain a downward
¶3
added).
(emphasis
Id. at 1-2
On
tified."
March
departure
sentencing
at his
under U.S.S.G.
31, 1992,
judge, "having
the district
...
5K1.1,
Thus,
112(d).
§
see id. at 2
the informa-
government’s
read and considered” the
motion
provided
tion that Orozco
to the
wherein,
Orozco,
respect
for continuance
with
prior
sentencing
hope
to his
was with the
of
the AUSA stated that Orozco had
no
§
acquiring a
5K1.1 motion for reduction in his
filing
govern-
further information since the
of the
35(b) motion,
preliminary
ment’s
Rule
canceled
conceded, however,
attorney
Orozco’s
in a mo-
previously
hearing
the
scheduled
on Orozco's
departure filed
tion for downward
on November
35(b)
acknowledged
Rule
motion and
15, 1990,
day
sentencing,
the
before Orozco's
government had withdrawn this motion. Rl-
that Orozco had minimized the amount of co-
Judge
postulates
134.
Kravitch
that Orozco
transported,
that he
caine
November
had
"refused until
could have been a
a
witness in
inves-
9,
he had
admit
other sources
4,
tigation
February
that was unidentified on
named,”
originally
cocaine
for
than those
Rl-
1992,
eight
but was conducted in less than
weeks
107-1,
family’s
illegal
and "denied his
role in
31, 1992,
and declared unfruitful
to March
drug trafficking,”
Consequently,
id.
Orozco’s
government’s
prelimi-
when
withdrawal of its
totally
prevented
gov-
“reluctance to be
candid
35(b)
nary Rule
motion became effective. Oroz-
recommending
given
ernment
that he be
from
co,
J.,
(Kravitch,
1313
authority
statutory interpretation
appliea
court’s
to reduce a sentence un-
judge’s
Grigsby,
authority
States v.
der this subsection includes the
tion de novo. See United
(11th Cir.1997).
806,
to reduce such sentence to a level
111 F.3d
816
When
below
duly
the lan
that established
as a minimum
statute has been
enacted and
statute
“
plain,
‘the sole function of the
guage is
according
it
to its
courts is to enforce
35(b) (1994)
app.
”
Trust
terms.’ Central
Co. v.
Creditors’
added).
(emphasis
Official
previously
Our court
Enters., Inc.,
Geiger
454
Co mm.
U.S.
period
held that the time
stated within the
359-60,
695, 698,
354,
102
70 L.Ed.2d
S.Ct.
rule for the
to file a Rule
(1982)
curiam)
(per
(quoting
542
Caminetti v.
jurisdictional.
motion is
In re
See
United
States,
470, 485,
242
United
37 S.Ct.
(11th
States,
1485,
Cir.1990)
898 F.2d
(1917)).
192, 194,
61 L.Ed.
“Review
curiam)
(per
(citing United States v. Addon
legislative history
necessary
unless
izio,
178, 189,
2235,
442 U.S.
99 S.Ct.
2242-
inescapably ambiguous.”
a statute is
Solis- 43,
(1979));
Addressing the current version of Rule
Because the rule on the issue before us is
35(b),
as amended in
the Fourth and
unambiguous, we need not even consult the
interpreted
have
Seventh Circuits
the rule
meaning.
note to determine the rule’s
literally.
Carey,
See United States v.
—
(4th Cir.1997),
denied,
unambiguously provides
F.3d 509
cert.
that
rule
-,
(1998);
one-year
may
118 S.Ct.
L.Ed.2d
the
limitation
be relaxed
McDowell,
(7th
provided by
United States v.
is, the government did not acquire Orozco’s particularly when we can decide this ease concerning Rodriguez and delib- plain within the terms of the rule.13 See *8 11. We have only observed gov- "that not is the testify naed to to this Rodriguez's information at ernment the best determiner of a defendant's trial. assistance, but great also that it has incentive to perform this accurately.... evaluation [T]he 13.Although we do not believe explicit that the government has no reason to refuse to make terms of Orozco, permit Rule us to accord relief to substantial assistance appropriate, motions when agree we with the district that this dependant since is it upon future defendants' case demonstrates factual that situation Con- cooperation.” Fomey, 9 at F.3d n. 1502 4. gress should consider it contemplates next is, revision of this rule. That we hope that Con- testifying trial, 12. In Rodriguez's at gress Orozco did apparent will address the unforeseen situa- precisely agreed what he plea to do in his agree- presented tion in this case where a convicted ment: "The defendant voluntarily [Orozco] will provides information to the appear subpoena without or legal process other ment expiration jurisdictional, any proceeding where testimony his is desired one-year period from sentence imposition, but by the give Government will truthful testimo- that information does not become useful to the ny." Rl-82(D)-2 ¶at c. We additionally government note until more than after sentence that, previous based on his given imposition. information to making 35(b) motion, the Rule government, Orozco could have subpoe- been determined that it was warrant-
1317 rule, trying to of this Inc., But the draftsman Assocs., U.S. Abbott & v. Illinois situations, in an- succeeded anticipate future 1356, 1364, L.Ed.2d 567, 572, 103 S.Ct. that obtains.1 except the one ticipating all are courts (1983) that federal (recognizing Orozco, under So, to release entitled language that specific add “to authorized in parties, remains interested of all views carefully con in a include Congress did can is that we do and all penal servitude statute”); at 512 Carey, 120 F.3d sidered good its Congress, own suggest that policy .in (“Whether all of agree with we to see time, by further codification attempt 35(b) effec ] [Rule or whether considerations someone else. We happen to it does not that apply them, to bound arewe tively addresses than this. ought to do better writ it is in which manner in the rule ten.”). Judge, KRAVITCH, Circuit Senior specially: concurring CONCLUSION
III. 35(b) is majority that Rule agree I with contends appeal, Orozco In this to read narrowly it must be that so drafted granted the have judge should district I case. write in this jurisdiction preclude his reduced ernment’s however, emphasize that to separately, Rodri- testimony in his based sentence pro- purpose in Congress’s result contradicts years after four trial over guez’s discretionary reductions sentence viding for re- Because of Orozco’s immediately provides the if prosecutors to information peated assists the information with previ- he of Florida District Northern oth- prosecuting substantially 'in the prosecutors to ously had disclosed written, discourag- criminals. Rule er his sen- Georgia before District Northern opera- large criminal participants minor es ac- information did not relate tencing and about divulging key tions from his year or more quired cohorts, knowing that their judge concluded district imposition, the to use forced to wait may be may choose or to consider was without limit for the information ex- the reasons For motion. passed. has reduction possible sentence herein, district we conclude plained consider jurisdiction to have judge did not considered that have courts As other AF- Accordingly, we motion. the Rule is to noted, of the rule purpose have judge. ruling of the district immediately provide FIRM to encourage defendants operations of criminal about disclosure full concurring: HILL, Judge, Senior Circuit United knowledge. See they have which Cir.1995) (1st Morales, 7, 8 near illustrate the v. of this case The facts States value denying ought to purpose codifying (“Manifestly, that which impossibility Executive, to induce immediate knowledge judicial discretion. retained left be Carey, 120 disclosure.”); execution faithful United States seeing to the with full charged — denied, (4th Cir.1997), ought cert. law, that Orozco concluded F.3d -, He 140 L.Ed.2d cooperation. 118 S.Ct. benefit have the provides (“The also (1998) limitation cooperated, but promptly, fully, and come forward appreciated incentive defendants belatedly ille they know about all The Executive’s with cooperation. promptly of his value they ap conduct, regardless Orozco, that he obviously gal feels opponent, *9 The government.”). to the its value preciate The district benefit. have this should *10 ment original withdrew the because stopped cooperating. Al- Notes Advisory this Committee as well as original case heard the that Notes”) 35(b) (“the also it As I take amendment relief. grant the would petition by the cooperation timely emphasize that also, it. we, (footnote 13), would anticipates it many provisos that with impedi- will so jurisdictional recognized the also ed but except actual- the one 35(b). every situation conceivable ment of Rule existing client’s death. ly at estate like unto the product this rule The 1. prepared a diligently attorney who has planning defendant, timely tried, rather than use being the in- the voluntarily defendant served by government, the is the focus of government as a formation witness and testified to the the new That language rule.1 the of the rule same information he gov- had the carry itself out this fails obvious im- and years ernment several before. gov- the portant policy urgent manifests an need for judgment, ernment’s testimony assisted Congress to reconsider Rule 35. substantially it in the of Rodri- predicament The in which the guez, defendant as government’s evidenced the deci- powerfully here finds himself the illustrates bring sion to the motion to reduce the defen- gap 35(b). Congress has created in Rule dant’s sentence that is at in issue this case. The defendant drug was on charges arrested This court is however, bound in age nineteen; at he subse- reject thus must government’s at- quently guilty plea entered a and was sen- tempt carry purpose out the of the rule. prison. tenced to 151 months in Well within It is unfortunate that the language of this one-year period prescribed time by Con- precludes implementation rule of the gress,2 the defendant provided extensive in- very policy it support. was written to It is formation operation about the criminal particularly unfortunate for the defendant involved, which he was including information here, case, noted, whose as the district court about major Armando Rodriguez, a cocaine “cries out for relief.” distributor who fugitive was a at the time. The initially filed a Rule respect motion with to the defendant but requested that court delay district its ruling on the motion. Ultimately, gov- ernment withdrew that motion.3 It is undis- puted finally apprehended had been and indicted and was 1. The problems Notes describe of the one with though point does holding, not affect our I rule, the old which the 1991 amendment was any note record is void of information to intended to correct: conclusion, support that govern- and even the rule], "[Under the old the trial court was upon whose brief the independently court ment— required to rule on the motion to relies to substantiate its characterization of the reduce a defendant’s sentence within one urge facts—does not such an inference. The of the sentence. This caused 35(b) motion, original Rule filed within the one- problems, however, in situations where the limit, requested time that the district court defendant’s assistance fully could not be as- hold motion until the "ap- could sessed in timely time to amake motion which propriately investigate the matter which the de- upon could be ruled before one 131(1), ¶ fendant will [sic]." disclosed at 5. Rl— elapsed.... [The amendment] should benefit The motion stated that "[t]he cooperation which both the and the defendant and provides, likelihood, the defendant in all will permit completion will of the an- defendant's involve the need for investigative extensive mea- ticipated cooperation government.” with the therefore, ... sures complete is not at this app. (Advisory Id., later, time.” V4. A few Amend.). govern- months Comm. Notes for 1991 requested ment again delay district portion Notes also court address the hearing 35(b) motion, amendment that allows the Rule stating a district court to exer- cise over a defendant "ha[d] made motion furnished no further outside cooperation, deciding time limit: "In but be a [would] witness in an in- motion, untimely to consider vestigation which [had] not been identified.” may, example, court (2), consider ¶3. whether the later, Rl—131 Less than two months early assistance was possible.” as as withdrew the Rule motion Id. explanation. without presuming that the de- stopped cooperating, fendant majority ig- It is not clear from exactly the record when the plausible nores the inference from this record defendant disclosed this information to withdrew the Rule however, appears, ernment. It that the disclo- investigation because its prove did sure early have been day made as the fruitful and it therefore was was unable at that arrested. to use the majority seems to infer that the way. concrete