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United States Court of Appeals,First Circuit.

UNITED STATES of America, Appellee, v. Edward K. MILLS, a/k/a Kwame Mills, Defendant, Appellant.

No. 01-2702.

Decided: December 31, 2002

Before TORRUELLA, Circuit Judge, JOHN R. GIBSON,* Senior Circuit Judge, and HOWARD, Circuit Judge. Joseph F. Savage, Jr., with whom Richard Myrus, Fred H. Nemeth, and Testa, Hurwitz & Thibeault were on brief, for appellant. Kevin P. McGrath, with whom Michael J. Sullivan, United States Attorney, and Dina Michael Chaitowitz, Assistant U.S. Attorney, were on brief, for appellee.

Edward K. Mills pleaded guilty to a one-count information charging him with racketeering in violation of 18 U.S.C. § 1962(c) (2002).   At sentencing, the district court considered the government's motion under Sentencing Guideline § 5K1.1 asking for a departure on account of Mills' substantial assistance, but refused to depart.   Mills argues that (1) the district court misled him at the plea hearing into believing his disclosures about a murder conspiracy would be used only for reducing his sentence;  (2) the government breached its plea agreement with him by failing to argue that information provided by Mills pursuant to the agreement should not be considered by the court;  (3) the district court erred by invoking a categorical “murder is different” sentencing policy, ignoring its responsibility to consider the guideline factors as enumerated in Sentencing Guideline § 5K1.1;  and (4) the district court erred under § 5K1.1 by refusing to consider the full extent of assistance rendered by Mills' girlfriend at Mills' behest.   We affirm the sentence imposed by the district court.

On March 29, 2000, in his plea hearing before the district court, Edward K. Mills waived his right to a grand jury and pleaded guilty to a charge under 18 U.S.C. § 1962(c).  The one-count information alleged that Mills agreed to participate with a group of individuals in an organization whose primary purpose was to coordinate the distribution of crack cocaine.   The underlying predicate acts included two acts of money laundering, conspiracy to murder, and interstate travel in aid of racketeering.

The government had originally offered Mills a plea bargain in which he would serve a maximum of twenty years, with credit for state time served.   The government had also discussed with Mills in a proffer letter the possibility of his providing information about local drug trafficking and several unsolved murders.   Mills chose to cooperate with the government's investigation in exchange for a favorable government recommendation at sentencing, which he hoped would result in a lower sentence than the twenty years the government offered if he did not cooperate.   Mills and the government eventually arrived at an agreement which included the following:

Notwithstanding the provisions of U.S.S.G. § 1B1.8(b)(5) and the commentary thereto, the U.S. Attorney agrees to take the position that, at the time of sentencing, information provided by Defendant pursuant to this Agreement should not be used either in determining where within the applicable guideline range to sentence Defendant or in determining whether, or to what extent, a departure from the Sentencing Guidelines is warranted.

At the plea bargain hearing, the district court stated that under 18 U.S.C. § 1962(c), Mills could face up to a twenty-year sentence and that the court was under no obligation under the plea agreement to grant a downward departure.

Mills cooperated with authorities 1 and testified at the trial of John Tibbs, an associate of Mills who committed several murders.2  In its § 5K1.1 motion, the government emphasized that prior to Mills' cooperation, the government had no evidence of who had committed these murders, and that Mills had helped free an innocent man who had been wrongly convicted of one of these murders.   The government also stated that Mills had “limited involvement” in one murder and his involvement in another consisted only of driving Tibbs to and from the scene.   In its supplemental sentencing memorandum, the government took the position that based on Mills' cooperation, the danger he exposed himself to, the relative culpability of his co-defendants, and the sentences they received, the court should depart downward and Mills should receive a sentence of 120 months.   Later, during Mills' sentencing hearing, the district court acknowledged that Mills had “displayed enormous personal courage” and that the extent of his cooperation equaled or exceeded anything the court had ever seen.   However, the court declined to follow the parties' sentencing recommendations in light of Mills' involvement in several of the murders and his leadership role in a dangerous, violent enterprise.   The court then sentenced Mills to twenty years, with a two-year credit for time served on a state sentence for drug trafficking.


 Mills first argues that the court misled him at the plea hearing into believing that his disclosures regarding the murder conspiracy would be used only for the purpose of reducing his sentence.   During the plea hearing, the court discussed the possibility of using information about the murder conspiracy in its departure analysis.   Mills did not object.   Since he did not object, we have limited power to correct an error that was not timely raised before the district court.  United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993).   An error not objected to at the plea hearing is reversible only where the error is plain, affects the defendant's substantial rights, and seriously affects the fairness of the proceeding.  Id. See also United States v. Vonn, 535 U.S. 55, 122 S.Ct. 1043, 1046, 1048, 152 L.Ed.2d 90 (2002).

Mills does not dispute that the district court is permitted, for the purposes of departure, to consider self-incriminating information he provided pursuant to the plea agreement (i.e. his involvement in the murder conspiracy).   See USSG § 1B1.8(b)(5).  Rather, he claims that the court misinformed him at the plea hearing about how it would use this information in its departure calculus:

THE COURT:  And I will go into the melange of factors that I try to balance and that I take responsibility for.   But, because he's accepted responsibility, if you will for this fourth predicate act [the conspiracy to murder] now, can I consider that at all as to where the appropriate sentence is?   Or, am I not to consider that at all?

MR. HEINRICH [Assistant U.S. Attorney]:  Well, your Honor, let me answer it this way.   In terms of setting your base, I don't think that you should consider it.   In terms of considering all the factors and however you weigh those both, whatever internal processes and external, Mr. Mills' cooperation would be, would include in both this instance and in other instances admitting responsibility for other criminal activity.   And I think that the Court in any case would take account of what it is he's cooperating on, how he knows about it, whether he participated in it-

THE COURT:  All right.

MR. HEINRICH:-and the like in determining how far to come down in that connection.

Mills argues that based on the Assistant U.S. Attorney's description of the law and based on the court's approval of this description 3 , he was led to believe that his involvement in the murder conspiracy would be used only “in determining how far to come down” in a departure, not in denying a departure altogether.   Mills cites U.S. v. Conway, 81 F.3d 15 (1st Cir.1996), in support of his argument that we should remand for re-sentencing because the district court misinformed him about its departure calculus.

 A district court must not misinform the defendant entering a guilty plea about the court's role at sentencing.   The court is not bound to comply with the prosecutor's recommendation for sentencing, and the defendant should be aware of this.   See Conway, 81 F.3d at 17.   To prevent confusion on the defendant's part, Fed.R.Crim.P. 11(c) provides that:

Before accepting a plea of guilty or nolo contendere, the court must address the defendant personally in open court and inform the defendant of, and determine that the defendant understands, the following:

(1) the nature of the charge to which the plea is offered, the mandatory minimum penalty provided by law, if any, and the maximum possible penalty provided by law, including the effect of any special parole or supervised release term, the fact that the court is required to consider any applicable sentencing guidelines but may depart from those guidelines under some circumstances ․ (emphasis added).

In Conway, this court held that the district court's explanation of the plea agreement was misleading when the court made no distinction between the government's obligation to follow the plea agreement and the court's freedom to sentence according to the Guidelines regardless of the parties' recommendations.   The defendant was mistakenly given the impression that information he gave pursuant to the plea agreement could not be used against him by the court, so we remanded for the court to rehear the motion for departure and to make new findings.

In Mills' case, on the other hand, the district court made it clear that the court was under no obligation to depart under the plea agreement.   The district court repeatedly told Mills that a substantial assistance motion by the government did not guarantee a departure:

THE COURT:  Now, if they don't ask me [for a departure], assuming what's said here about how the guidelines work out is right, then I have no way of going lower than 20 years.

Do you understand that?

MILLS:  Yes.

THE COURT:  Let's consider it the other way.   Even if they do ask me, I'm not part of this plea bargain between you and the government.

Do you understand that?

MILLS:  Yes.

THE COURT:  And I don't have to go lower than the 20 years.   I know I can't go higher than 20 years, but I don't have to go lower.   You understand that?

MILLS:  Yes.

THE COURT:  And you understand, I mean, I certainly will try to be fair and just, but I'm not bargaining now, I'm not part of any of this, I'm just trying to make sure you know what may happen to you.

Do you understand that?

MILLS:  Yes, I do. (emphasis added).

Mills was thus informed that the court was not bound by the plea agreement, and that in determining how far to depart, the court could choose not to depart at all.   In light of the record as a whole, Mills could not reasonably have understood the court to have promised to consider murder-related evidence only for purposes of deciding how far to depart downward.   We conclude that there is no error in this respect.


 Second, Mills argues that the government breached its plea agreement.   Mills concedes that he did not raise this issue below.  “When a defendant has knowledge of conduct ostensibly amounting to a breach of a plea agreement, yet does not bring the breach to the attention of the sentencing court, we review only for plain error.”  United States v. Saxena, 229 F.3d 1, 5 (1st Cir.2000).   In order to show plain error, Mills must establish that (1) an error occurred, (2) the error was plain, (3) it affected his “substantial rights,” and (4) it “adversely impacted the fairness, integrity or public repute of judicial proceedings.”  United States v. Riggs, 287 F.3d 221, 224 (1st Cir.2002).

The government had promised to take an affirmative position that information provided pursuant to the plea agreement should not be used at sentencing.   In particular, the plea agreement stated:

Notwithstanding the provisions of U.S.S.G. § 1B1.8(b)(5) 4 and the commentary thereto, the U.S. Attorney agrees to take the position that, at the time of sentencing, information provided by Defendant pursuant to this Agreement should not be used either in determining where within the applicable guideline range to sentence Defendant or in determining whether, or to what extent, a departure from the Sentencing Guidelines is warranted.

Mills argues that the government failed to take the agreed upon position.

The record shows that the government did, in fact, argue vigorously that the court should not use the information discussed in the plea agreement as part of its departure calculus.   At sentencing, the government advanced two arguments in asking the court not to consider Mills' involvement in the murder conspiracy.   First, the Assistant U.S. Attorney pointed out that “given the nature of the agreement” and given the nature of law enforcement, the court should not punish Mills for admitting more serious conduct in the process of helping solve gang and drug-related homicides.   Second, the prosecutor argued that although the proffer agreement protected Mills from being prosecuted for self-incriminating statements, he still took tremendous risks in confronting and exposing other persons involved in violence.   Furthermore, the government told the court that without Mills' assistance, the prosecution would have had no information or evidence that Mills was involved in these murders.   These arguments indicate that the government was encouraging the court not to consider Mills' role in the murder conspiracy for the purposes of punishment, but rather to consider his role only insofar as his cooperation had aided the murder investigation and prosecution.

Under the Sentencing Guidelines, the government could not withhold the information about Mills' involvement in the murder conspiracy from the court 5 , and the court was free to consider it on its own under the provisions of and commentary on USSG § 1B1.8(b)(5)-a provision explicitly referred to in the plea agreement itself.

Moreover, although the government acknowledged Mills' role in the murder conspiracy by disclosing his involvement 6 , the government could only explain his remarkable assistance in the context of his involvement.   The government did not violate or renege on its agreement with Mills;  instead, it tried to make a compelling argument to the court as to why Mills deserved a departure.   We conclude that the government did not breach the plea agreement.


 Third, Mills argues that the district court based its decision not to depart on a per se rule that was inconsistent with Sentencing Guideline § 5K1.1. Mills claims that the district court erred by stating a categorical rule that a downward departure for substantial assistance would not be granted, no matter what the circumstances, in cases involving murder.

 In general, a district court's denial of departure is discretionary and not appealable.   See United States v. Mariano, 983 F.2d 1150, 1153 (1st Cir.1993).   There are, however, three situations in which a motion to depart is appealable, including:  “(1) the refusal to depart involves an incorrect application of the Sentencing Guidelines;  (2) the refusal to depart otherwise violates the law, or (3) the district court mistakenly believed that it lacked the discretion to depart.”  United States v. Dewire, 271 F.3d 333, 337 (1st Cir.2001) (citations omitted).   In this case, we are dealing with a challenge of the first kind, since Mills argues that the district court failed to apply or misapplied Sentencing Guideline § 5K1.1 to his sentence.7

 In order for a court to be able to consider a departure for substantial assistance, the government must first move for a downward departure under § 5K1.1. See Wade v. United States, 504 U.S. 181, 185, 112 S.Ct. 1840, 118 L.Ed.2d 524 (1992).   The district court can then determine whether or not to depart from the sentencing guideline range, and if so, how far to depart.   Mariano, 983 F.2d at 1155.   Sentencing Guideline § 5K1.1 allows the district court to consider a range of factors in evaluating a substantial assistance motion.   It states:

(a) [t]he appropriate reduction shall be determined by the court for reasons stated that may include, but are not limited to, consideration of the following:

(1) the court's evaluation of the significance and usefulness of the defendant's assistance, taking into consideration the government's evaluation of the assistance rendered;

(2) the truthfulness, completeness, and reliability of any information or testimony provided by the defendant;

(3) the nature and extent of the defendant's assistance;

(4) any injury suffered, or any danger or risk of injury to the defendant or his family resulting from his assistance;

(5) the timeliness of the defendant's assistance. (emphasis added).

We have held that a “district court, faced with a section 5K1.1 motion, must at a bare minimum indicate its cognizance of these factors.”  Mariano, 983 F.2d at 1156.

 The use of the phrase “may include, but are not limited to ” in § 5K1.1 indicates that the district court may also examine factors beyond those enumerated in § 5K1.1(a)(1)-(5).   See United States v. Chestna, 962 F.2d 103, 106-107 (1st Cir.1992).   And since the court is not limited to the § 5K1.1 factors alone, the court may also look at other factors which touch upon the degree, efficacy, timeliness, and circumstances of the defendant's cooperation.  Mariano, 983 F.2d at 1156.

 While the district court may be limited to factors bearing on the defendant's cooperation in granting departures, the court is not limited to such factors in denying departures.   In Mariano, we explained that “[s]ince the sentencing range itself is an expression of Congress's will, a district court retains broad discretion to exhume factors unrelated to substantial assistance before burying the GSR [guideline sentencing range].”  983 F.2d at 1156-1157.   Furthermore, “[e]ven if the five factors enumerated in section 5K1.1 weigh in a defendant's favor, the district court may, on the basis of other considerations, ․ decide to forgo or curtail a downward departure.”  Id. at 1157.   See, e.g., United States v. Mittelstadt, 969 F.2d 335, 336-337 (7th Cir.1992) (court of appeals lacked jurisdiction to review district court's decision not to grant the government's § 5K1.1 motion);  United States v. Carnes, 945 F.2d 1013, 1014 (8th Cir.1991) (the benefit a defendant received from the prosecution's decision not to press an additional charge was a permissible ground for limiting the extent of a downward departure).

 In sum, the district court retains discretion in evaluating a government's § 5K1.1 motion in support of departure.   The court must show cognizance of the § 5K1.1 factors and may consider additional factors touching upon the defendant's substantial assistance.   However, if the court chooses not to depart, it may weigh factors beyond the defendant's substantial assistance to justify its decision to remain within the guideline sentencing range.

In Mills' case, the district court showed its awareness of the requirements of § 5K1.1. The court explained how it would evaluate arguments in evaluating the government's motion:

There is a motion under 5K. That motion is allowed.   As you understand, don't anyone take any particular comfort from that.   What that does is give me the discretion to depart downward.

The court looked at Mills' sentencing memorandum, paying particular attention to the section of Mills' memorandum which analyzed reductions for substantial assistance.   The court found that the information provided was accurate by a fair preponderance of the evidence.   In addition, the district court discussed the government's § 5K1.1 motion and found that Mills' assistance as described in the government's motion was “as great, if not greater than any other case with which I am personally aware or which has been referenced here.”   The district court also considered additional factors related to the efficacy and circumstances of Mills' cooperation, including how he knew about the murders and what his role was in connection with these murders.   In explaining its decision not to depart, the court concluded:

Here's what's driving the sentence.   I treat murder different.   I think that's the appropriate judgment of society.   I recognize that your sentence is a maximum of 20, and I have discounted the 24 months for the time you've already served as part of this conspiracy.   But I truly treat murder different.   I see no way to do otherwise.

Alternatively, I believe and I have found you were the leader of this dangerous, violent enterprise.   And so that's an appropriate sentence-

Even if the court did give overriding importance to Mills' role in the murder conspiracy and his leadership position in a violent enterprise, the weighing of these factors did not result in a misapplication of the Sentencing Guidelines.   Sentencing Guideline § 1B1.8(b)(5) permits the district court, in considering a departure motion, to consider self-incriminating information garnered from the defendant's substantial assistance.8  And § 5K1.1 gives the district court broader discretion in choosing to remain within the sentencing guideline range.9  We conclude there was no error in the court's refusal to depart based on the nature of the self-incriminating evidence proffered by the defendant.10


 Finally, Mills argues that the district court erred by failing to credit him with the assistance rendered by his girlfriend in the court's determination whether or not to depart.   Essentially, he argues that the district court stated that it was precluded as a matter of law from granting a downward departure.   He points to the district court's statement:  “I do not take into account in imposing this sentence the devotion of the young lady who loves you so much that she puts her ownself at risk.”

 In determining whether a sentencing court stated a legal conclusion or simply exercised its discretion, we look at the entire record.  United States v. Morrison, 46 F.3d 127, 130 (1st Cir.1995).   We do not consider a single statement in a vacuum, but instead, consider the statement within the context of the hearing as a whole.  Id. at 131.

The court concluded the sentencing hearing by acknowledging the extraordinary nature of Mills' cooperation:

I recognize, and I do not think Mr. Savage overstated, that you have displayed enormous personal courage.   I found and I stand by it, that the extent of your cooperation equals or exceeds anything I have seen.   I do not take into account in imposing this sentence the devotion of the young lady who loves you so much that she puts her ownself at risk.

The court's insistence on not taking into account Mills' girlfriend's assistance appears to have been an effort to emphasize that Mills' own assistance was unique and provided enough evidence to support a § 5K1.1 motion by itself.  § 5K1.1(a)(3) states that the court may consider the “nature and extent of the defendant's assistance.”  § 5K1.1(a)(4) adds that the court may take into account “any danger or risk of injury to the defendant or his family resulting from his assistance.”   Even though his girlfriend's cooperation might constitute part of the substantial assistance provided by Mills, the district court's decision to focus on Mills' own contributions, rather than his girlfriend's assistance, fell within its mandate to look at the “nature and extent” of the defendant's assistance.   In any event, as we explained above, we are confident that the court's sentence was based on consideration of the factors listed in § 5K1.1(a).  This decision was within the court's broad discretion.   We therefore dismiss this final claim for lack of jurisdiction.

For the foregoing reasons, we affirm the sentence of Edward K. Mills.


1.   Most of the record before us and the briefs have been filed under seal, and such materials have been fully considered even if not set out in detail in this opinion.

2.   Following the plea hearing but before sentencing, Chief Judge Young observed a portion of Mills' testimony in the Tibbs murder trial, which transpired in another judge's courtroom.

3.   As stated to the court by Mr. Heinrich, the factors to be considered regarding departure included not only Mills' cooperation in exposing the murder conspiracy but also “how he knows about it, whether he participated in it.”   The court could also consider that Mills' cooperation involved “in both this instance and in other instances admitting responsibility for other criminal activity.”The court approved this description and asked Mr. Mills directly:  “You understand what Mr. Heinrich and I are talking about here, Mr. Mills, do you think?”   When Mills answered “Yes,” the court pressed him again, “You understand that if you plead guilty and if they ask me to go down, I'll have to balance a variety of factors.”   Again Mills answered “Yes,” and again, the court checked to make sure that Mills understood what Mr. Heinrich had said about Mills' cooperation.

4.   USSG § 1B1.8(b)(5) states:  “The provisions of subsection (a) [which limit the use of self-incriminating information provided pursuant to a plea agreement in determining the guideline range] shall not be applied to restrict the use of information:  ․ (5) in determining whether, or to what extent, a downward departure from the guidelines is warranted pursuant to a government motion under § 5K1.1 (Substantial Assistance to Authorities).”

5.   Although the court can choose not to consider information at sentencing, the government has an obligation not to withhold any relevant information from the court.   See USSG § 1B1.8, comment. (n.1).

6.   Mills specifically objects to the government's comment to the court that Mills should receive a departure “despite the fact that he was involved in those murders.”   The Assistant U.S. Attorney made this statement in response to the court's expressed reservation about showing leniency to a participant in a murder conspiracy.   The court was not asking the prosecution whether this involvement should be considered;  rather, with the court's decision to weigh this information, it was asking why Mills' participation in the murder conspiracy should be discounted.

7.   The only bases for appellate jurisdiction in this case are if the sentence was imposed “in violation of law” or through “an incorrect application of the sentencing guidelines.”  18 U.S.C. § 3742(a) (2000).   In United States v. Saldana, 109 F.3d 100, 103 (1st Cir.1997), we held that a sensible reading of 18 U.S.C. § 3742(a) is that “the defendant has a right to appeal to present a claim of legal error, or at least a colorable claim.”   In this case, Mills is arguing that the district court committed a legal error by invoking a rigid sentencing policy against departure in murder cases, ignoring the requirements of § 5K1.1 in evaluating Mills' substantial assistance.   This is an arguable reading of the district court opinion and at least a colorable claim of legal error.

8.   Application Note 1 states:  “subsection (b)(5) provides that consideration of such information is appropriate in determining whether, and to what extent, a downward departure is warranted pursuant to a government motion under § 5K1.1 (Substantial Assistance to Authorities);  e.g., a court may refuse to depart below the applicable guideline range on the basis of such information.”  USSG § 1B1.8, comment. (n.2).

9.   In Mariano, we explained, “the limitations on the variety of considerations that a court may mull in withholding or curtailing a substantial assistance departure are not nearly so stringent as those which pertain when a court in fact departs downward.   This seeming paradox is neither unusual nor unsettling;  indeed it is this very quality of unequal centrifugal and centripetal forces that helps distinguish discretionary departure provisions like section 5K1.1 from the sentencing guidelines array of mandatory adjustment provisions like U.S.S.G. § 3E1.1 (adjustment for acceptance of responsibility) and U.S.S.G. §§ 3B1.1, 3B1.2 (adjustment for aggravating or mitigating role in the offense).”  983 F.2d at 1157.

10.   The U.S. Attorney is given the power to encourage defendants to assist the authorities in the investigation of criminal activities by rewarding defendants with sentencing concessions.  USSG § 5K1.1, comment. (backg'd.).   In this case, the district court made findings of fact that Mills' assistance was “as great, if not greater, than any other case with which I am personally aware”, and that in similar cases before the District of Massachusetts, there had been fifty to eighty percent reductions from the guideline minimum sentence.   Despite these findings, the district court concluded that because of Mills' involvement in the murders and his leadership position, it would not depart.   The guidelines permit the district court to reject the U.S. Attorney's recommendation.   In our experience, district judges have exercised this power with care, and we believe that it is essential that they do so to avoid introducing a lack of predictability for future defendants considering plea bargains.   The issue is close, and differing facts might support a different result, but because the district court has broad discretion, we have no choice but to affirm its decision in this case.

JOHN R. GIBSON, Senior Circuit Judge.

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