*1 plain- discrimination. the other four While
tiffs
have been members of a “disadvan-
America, Appellee
UNITED STATES of
class,”
taged
the district court’s determina-
tion that Breen alone was
to the
entitled
Raymond WATSON, Jr., Appellant.
promotion to AFCO foreclosed their claim of
respect
position.
victimization with
to that
In re SEALED CASE.
Thus,
Dougherty,
See
curred.
IY.
We conclude that the district court erred awarding damages to Yocum for the Dis- promote
trict of failure to him Columbia’s
fire marshal. Title relief is limited to VII Stotts,
“actual victims” of discrimination. Here,
where one was filled in a dis- manner,
criminatory and the district court able to
was conclude another member of plaintiffs’ class would have received the discrimination,
promotion absent Stotts
Dougherty remaining dictate that class Thus, nothing.
members are entitled to consequences” court’s “collateral improper. Accordingly, to Yocum
award
the decision of the district court is vacated respect damages to the award of
Yocum.
*Wald, Judge, petition rehearing. would *2 Holder, Jr., Erie H. U.S.
lee. On brief were Atty., Roy and R. Fisher and W. John McLeese, III, Attys. Asst. U.S. Elizabeth Trosman, Atty., ap- entered an Asst. U.S. pearance. EDWARDS, Judge;
Before: Chief WALD HENDERSON, Judges. and Circuit Separate concurring opinion filed Judge EDWARDS.
Separate opinion dissenting part in filed Judge WALD. PER CURIAM: (Watson) Watson, Raymond appeals Jr. the district court’s denial of his motion for a under section 5K2.0 of the United States Guidelines (Guidelines). argues that enti- he is tled to a section 5K2.0 he exposed himself to and risked by cooperating government in its with investigation suspects. of other affirm We the district court. charged by
Watson was indictment with possessing one count of with intent to distrib- (the count), possession in ute cocaine base 841(a)(1), violation of U.S.C. and with possess one count of cocaine conspiracy (the conspiracy base with intent to distribute 841(a) count), of 21 and violation U.S.C. plea agreement 846. Watson entered a Letter Assistant Attorney Kruger Robert M. Bramson, (Appel- Howard Watson’s Counsel A). lee’s Record Material Tab Under the agreement, guilty plea entered a possession cooperate agreed count and government by providing with the informa- activity tion about all criminal of which he return, knowledge. government In had conspiracy agreed dismissed the count and advise the district court of Watson’s assis- Specifically, government agreed tance. depar- to move at for a downward Bramson, appointed by Howard F. ture under section 5K1.1 of Guidelines court, Brunswick, NJ, argued E. the cause discretion, “determined, in its sole appellant. rendered substantial assistance [Watson] other(s) Bestor, Atty., investigation prosecution Geoffrey Asst. Wash- ¶ DC, ington, appel- activities.” Id. at 2 6. argued the cause for the involved criminal acknowledge terpretation Despite parties both over which this court exercises what good to assist the Harring review.” plenary faith efforts were Watson’s ton, Department, (D.C.Cir.1991) Police the Federal Metropolitan (inter En- Investigation Drug and the omitted). Bureau of quotation nal marks affirm We Agency, the declined forcement ruling district court’s that Watson is not *3 departure for for a section 5K1.1 to move entitled to a section 5K2.0 for ex Apparently the information Watson Watson. posing danger by cooperating himself to already by known the provided either was government. the to an arrest or government or did not lead then the seizure of contraband.1 Watson does not claim Watson that he is enti 5K2.0 moved for a section tled to a downward under section danger and risked exposed he himself assisting government. 5K1.13 for the He injury by cooperating with the may that a concedes district court order a motion. After government opposed the The departure only govern 5K1.1 section the hearing, briefing by parties the and a the acknowledges ment moves for one court denied motion and Watson’s government request the did not such a de applicable him within the Guide- sentenced parture Appellant’s in his case. at 11. Brief range. explained district court lines The whether, question govern The the when legal authority to order a sec- that it lacked sentencing depar ment does not move for a ground that tion 5K2.0 on the ture under section district court the injury risked to obtain risking injury by nevertheless find that “substantial assistance” de- a section 5K1.1 cooperating government with the is a “miti parture.2 appeals the decision. kind, a gating circumstance ... not ade of quately by the Sen partic determination whether a “The tencing Commission” which warrants a de appropriate ground an for de ular factor is statutory parture parture question involves a of in- under section 5K2.0.4 explained: government stating government Upon the 1. The motion of provided the defendant has substantial assis- provide While the defendant did information investigation prosecution in the or of tance violations, concerning possible of law much offense, person another who has committed an provided the to the law enforce- information may depart guidelines. the court from the already by agencies ment known these (a) appropriate reduction shall be deter- The provided agencies, and none of the information by the court for reasons stated that mined include, any weapons or contra- led to the seizure to, but are not limited consideration any other band or to the arrest or conviction following: the person. Because the defendant’s efforts did (1) significance court's evaluation of the actually provide substantial assistance in assistance, per- defendant’s investigation prosecution and usefulness of the or of another offense, taking government’s into consideration the son who had committed a criminal rendered; a Government declined to file mo- evaluation of the assistance truthfulness, (2) completeness, assistance under Section tion for substantial and relia- bility any testimony provided 5K1.1. information or Opposition Request defendant; Defendant’s Government’s by the 29, 1992, Sentencing Departure, January at (3) defendant’s the nature and extent of the C). (Appellee’s assistance; Record Material Tab suffered, (4) any injury any or or risk stated: 2. The district court resulting injury family to the or his defendant assistance; agree I that it is uncontested that the defen- his conscientiously placed (5) himself at risk in dant assis- the timeliness of the defendant’s provide attempting to substantial assistance tance. letter, government and secure from the a 5K1 (emphasis p.s. U.S.S.G. that was but I believe that that is a factor Sentencing necessarily subsumed in the Com- part: provides in relevant 4. Section 5K2.0 adoption procedures they mission’s may impose a sentence [T]he 5K1, adopted under and that it would not be a applicable range outside the established grant departure under which I could guideline, if the court finds "that there exists under 5K2. mitigating aggravating circumstance of a an kind, or Material, Appellee’s Record Tab E at 5. degree, into taken or provides: Commission consideration 3. Section 5K1.1 determining appropri Commission court to consider (Commission) “danger explicitly departure, considered ate section 5K1.1 nevertheless or his to the defendant or risk of may be considered under section 5K2.0 when resulting and in family from his assistance” does not move for a section under section 5K1.1 to cluded it as a factor departure. He does not differentiate court in deter the district be injury” “danger or risk of factor from the mining appropriate extent of a “substan 5Kl.l(a) other section factors which include sentencing departure. See tial assistance” “significance and usefulness” and the 5Kl.l(a)(4), p.s. find no evi We “nature and extent” of the defendant’s assis believe, dence, that the Commis or reason to 5Kl.l(a)(l), (a)(3), tance. See U.S.S.G. this inadequately considered sion then, p.s. reading, Under Watson’s the dis confining applicability to its *4 trict court could consider under section 5K2.0 provides none. section 5K1.1 and Watson 5Kl.l(a). any factor listed section But it upon have concluded that due Other courts may a is well established that court not order that consideration the decided Commission departure ground a on the of the defendant’s “danger injury” does not constitute or risk assistance the does not so sentencing depar independent an basis for a move under 5K1.1. section See United Chotas, See, e.g., v. 968 ture. United States (D.C.Cir. Ortez, 61, 902 F.2d 64 Cir.1992) (11th 1193, (holding F.2d 1195-96 1990) (“Absent by §[a 5K1.1] motion sentencing that district court could not order government, guidelines do not authorize 5K2.0 on under section sentencing depart to below the danger such factor or risk of applicable guidelines range recognition by “adequately comprehended is section assistance.”). substantial If a district court Romolo, 5K1.1”); but see United States v. 5Kl.l(a) not consider other section (1st Cir.1991) 20, (recognizing 937 F.2d 5K2.0, factors under section factors which theoretically possible, that “it is albeit unlike distinguished “danger has not ly,” that district court could section injury,” or risk of the district court not departure in connection with defen consider the latter factor under section 5K2.0 cooperation though government dant’s even either. depar did not file motion for section 5K1.1 ture); Khan, 1100, United States v. 920 F.2d (2d Cir.1990) (same), denied, 1106 cert. 499 recognizes Section 5K2.0 also a 969, 1606, 111 L.Ed.2d 669
U.S. S.Ct. 113 “mitigating ... circumstance [ ] (1991). adequately by Commission.” U.S.S.G. accepted argument If we Watson’s 5K2.0, p.s. (emphasis We do not “danger injury” mitigating or risk of is a provision decide whether this of the Guide adequately circumstance of a kind not consid- depar lines entitles Watson to a downward Commission, ered we would under- argue mine, eviscerate, ture because he did not below that the if not the limits of section allegedly of harm he “danger risked was so 5K1.1. Watson maintains that or injury,” that it although risk of listed in section was not con 5Kl.l(a) as a relevant factor for the district sidered the Commission.5 See United formulating guidelines that should result that certain are not vide factors relevant or "not ordinarily relevant” to a decision. in a sentence from that described.” different See, 5H1.1-5H1.6, e.g., U.S.S.G. 5H1.10- p.s. (quoting 18 U.S.C. 5H1.11, p.s. 3553(b)). Although provision “broadly- partial see dissent at it is
worded/'
boundless.
presentenc-
5.
counsel did
Watson’s
assert at the
circumstance,”
"[A]ny mitigating
id.
ing hearing that "Mr. Watson’s efforts in this
(emphasis original),
begin
must be
to
personally endangering
case have been ... so
qualify
‘mitigating’
with.
a
"To
as
that under
the Court can and should find
purposes
must be linked to
the stated
one of
that Mr. Watson's entitled to a
for
i.e.,
sentencing,
just punishment, adequate
Material,
deter
grounds.” Appellee’s
those
Record
rence, public protection, or
rehabilitation.”
merely conclusionary
Tab D at 3. This
statement
Clark,
(D.C.Cir.
United States v.
explanation
support
8 F.3d
842
without
or factual
does not
1993). Indeed,
pro-
argument.
the Guidelines themselves
constitute
(D.C.Cir.)
Foster,
F.2d
sented an
in-
v.
of risk
States
(“[A]
adjustment
an
under the
request
cooperation
for
curred
the defendant in his
argument
if the
is not
attempts.
proffer by
defendant,
Guidelines is waived
a
Such
a
—
denied,
sentencing.”),
thereon,
cert.
argument specifically
made
based
are
2431, 124
(1993);
-,
L.Ed.2d 651
113 S.Ct.
necessary
bring
in order to
before the Dis-
Bradshaw,
295, 303
v.
935 F.2d
preserve
appellate
trict Court and
for
review
(D.C.Cir.1991) (“[I]n
preserve
for
order
question
possible departure
based on
appeal
argument for
from the
incurred.
Cf.
press
spe
guidelines, a defendant must
Bradshaw,
States
court.”).6
argument
cific
before the
(D.C.Cir.1991) (sentencing court has no “af-
Accordingly,
district court’s denial of
obligation”
inquire
firmative
factual
into
sentencing departure
motion for a
Watson’s
might
departure;
circumstances that
warrant
under section 5K2.0
press specific argument
defendant must
preserve
review);
issue for
Affirmed.
Khan,
Khan, 1100, 920 F.2d 1106-07 added). (emphasis per § curiam possibility]”), (noting same ] “theoreticalf opinion to make holds he failed this denied, 1606, 113 cert. 499 111 S.Ct. argument below. (1991). L.Ed.2d 669 record, As I Watson did indeed read agree I that the District Court in this case attorney argument. make that His stated authority depart in assumed that it had no in motion, that “Mr. Watson’s efforts this case have the absence of a wheth- Government complex been so extensive and so and so ground er on the broader that section 5K1.1 not, law, personally endangering that under preclude does as a matter of consid- Mr. separate depar- the Court can and should find that Wat- eration of risk as a basis for ture, to a for those or on the that an unusual de- son’s entitled Presentencing Hearing, tr. at gree provide grounds.” of risk the basis for de- 3 could added). unwilling ques- (emphasis advanced parture. I am to reach the He then specific scope theory that “5K2 was inserted for a tion of the of the District Court’s au- thority, however, proffer was to the facts because no reason and that reason allow suggest pre- particular that was out the norm made at trial to that this case of a case Foster, 209; appeal. plain 988 F.2d at see also 6. This case does not fall within the error Dawson, excep- exception 990 F.2d to the waiver rule. Under tion, (D.C.Cir.1993) ruling (reviewing district court's we consider a issue raised for appellant plain only did appeal inasmuch as the first time on for error that is obvious error validity grave prej- challenge of section 5K1.1 at sen- law and would result in not tinder settled miscarriage justice tencing). udice or a if not corrected (10th Cir.1993) (although judge 1 F.3d the trial to determine left for be acceptance responsibility is a factor of a exception ... it’s such an or not whether 3E1.1, §in it kind taken into account be (emphasis at 4 give departure.” Id. exceptional degree’ that it ‘to a “so excep- this is an implication is that The clear elsewhere, justifying departure considered” case, tional where the 5K2.0) Sklar, added); § (emphasis under by Watson warrants de- of risk undertaken (presentence F.2d at 116 rehabilitation is § 5K2.0. parture under determining “accep Judge notes that Edwards Watson responsibility” warrants tance proffer concerning factual made no detailed 3E1.1, § “on rare under but occasion” reha faced. Edwards con- of risk he extraordinary bilitation be “so as to presentencing But currence at 1097. at the presence suggest its not ade only hearing sought from counsel consideration,” justifying quately taken into concerning authority legal arguments its 5K2.0) (citation omitted) departure under grant under added); (emphasis Harring 4, 8-9, Presenteneing Hearing, tr. see ton, (D.C.Cir.1991) ruled that it did not have such once the court (“leav[ing] open possibility” 4-5, authority, Sentencing tr. at a detailed when rehabilitation is of an pointless. proffer on that issue would be Sklar). degree, as described claim, Having stated his was told If, example, a defendant undertakes to Any legally cognizable. fur- that was colleagues ensnare his criminal in an under- clearly proffer ther would have been futile. “sting” operation cover and is discovered be- my view raised Because arrives, police backup fore he could face ex- below, argument legal I decide the would risks, including possibility treme of tor- issue of whether district court does indeed captors. ture or death at the hands of his 5K2.0 to have discretion under Indeed, likely greatest to be *6 on a defendant’s downward based blown, when the informant’s cover is but assumption of an operation might easily prove such an unsuc- risk to assist the cessful, effort, § 5K1.1 a under failed broadly-worded, open-end- 5K2.0 is a Section dangerous, go however valiant or must unre- provision, granting district courts discre- ed might warded. I think a any mitigating tion to take into account cir- degree such an occasion conclude that the cumstance of a kind or truly operation risk undertaken in such an so Sentencing i.e., considered Commission. extraordinary, beyond scope of those Commission “took into con- “readily frequently risks envisioned [ ]or seen,” Sklar, factors of this kind when it for- sideration” F.2d downward § grants eligibility mulated which justified. departure is if the defendant suc- I would of course leave it to the sound (by government’s reckoning) ceeds determine, discretion of the district court to substantially assisting government; instance, in each the risk “danger or risk harm” factor that is one exceptional degree to warrant downward the court consider in such cases. But departure under 5K2.0. The district court independently authorizes erroneously my view—that assumed — when a factor of a kind considered elsewhere did not have discretion under 5K2.0 to present is nonetheless ade- consider the risk undertaken quately taken into consideration. United I would Watson. remand the district Sklar, (1st 115 & n. 7 court to determine whether the risk in this (§ Cir.1990) 5K2.0 authorizes justify case was so as to down- the district court a material circum- “finds departure. ward which, although stance Commission, present ‘to a de- gree’ readily frequent- neither envisioned nor seen”). See, Gaither,
ly e.g.,