United States of America v.  ANTROYNE J. BARNETTE, a/k/a Black

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 04-4436 
ANTROYNE J. BARNETTE, a/k/a Black,
Defendant-Appellant. 
Appeal from the United States District Court
for the District of South Carolina, at Rock Hill.
Joseph F. Anderson, Jr., Chief District Judge.
(CR-02-1173-JFA)
Argued: September 20, 2005
Decided: October 21, 2005
Before MICHAEL, MOTZ, and KING, Circuit Judges.
Affirmed by published opinion. Judge Michael wrote the opinion, in
which Judge Motz and Judge King joined.
COUNSEL
ARGUED: John Herman Hare, Assistant Federal Public Defender,
OFFICE OF THE FEDERAL PUBLIC DEFENDER, Columbia,
South Carolina, for Appellant. Marshall Prince, Assistant United
States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Columbia, South Carolina, for Appellee. ON BRIEF: J. Strom Thur-
mond, Jr., SMITH, MASSEY, BRODIE & THURMOND, P.A.,
Aiken, South Carolina, for Appellee.

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OPINION
MICHAEL, Circuit Judge:
Antroyne J. Barnette appeals his sentence for drug and firearms
offenses. Barnette contends that the district court impermissibly
reduced the degree of its downward departure under § 5K1.1 of the
U.S. Sentencing Guidelines (U.S.S.G.) based on the possibility of a
future sentence reduction under Fed. R. Crim. P. 35(b) if Barnette
continued to provide substantial assistance to the government.
Because the record establishes that the district court fully exercised
its authority and discretion under § 5K1.1, we affirm Barnette’s sen-
tence.
I.
In a superseding indictment filed on March 19, 2003, Barnette and
fourteen codefendants were charged with drug trafficking and fire-
arms crimes. On June 30, 2003, Barnette pled guilty under a plea
agreement to one count of conspiracy to possess with intent to distrib-
ute fifty grams or more of cocaine base, in violation of 21 U.S.C.
§ 846, and one count of possession of a firearm by a convicted felon,
in violation of 18 U.S.C. §§ 922(g)(1) and 924(e).
Barnette began cooperating with the government before the origi-
nal indictment was returned on October 22, 2002. He provided
incriminating information, including grand jury testimony, about his
eventual codefendants, and his early cooperation prompted a number
of his codefendants to plead guilty. Five codefendants went to trial;
Barnette testified for the government and "did a fine job as a witness,"
according to the Assistant U.S. Attorney (AUSA) in charge of the
prosecution. J.A. 124-25. Barnette also persuaded his girlfriend to tes-
tify as a government witness. His extensive cooperation prompted the
government to state that he had "substantially lessened the burden on
the Government in having to try this case and significantly strength-
ened the case against those co-defendants who went to trial." J.A. 94.
The trial against Barnette’s codefendants ended on August 6, 2003,
and Barnette was sentenced almost ten months later, on May 27,
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2004. Prior to sentencing the government moved pursuant to § 5K1.1
for a downward departure due to Barnette’s substantial assistance in
the investigation and prosecution of others, especially his codefen-
dants. At the sentencing hearing the AUSA outlined Barnette’s coop-
eration at the grand jury and trial stages. In addition, the AUSA noted
that Barnette had provided information about one codefendant who
was a fugitive. The AUSA also reported that Barnette had cooperated
in a murder investigation being conducted by state authorities.
Because Barnette would be a key witness or an important source of
information in the prosecution of these open cases, the AUSA told the
district court that Barnette was "well positioned for additional reduc-
tions in his sentence" under Rule 35. J.A. 125. For this reason, the
AUSA asked the court "to be guarded in the amount of [the § 5K1.1]
reduction." J.A. 125-26. In the very next sentence, however, the
AUSA urged that the court "give [Barnette] all he is due because of
the cooperation he gave to [the government] with regard to this partic-
ular case." J.A. 125.
Barnette’s lawyer reminded the district court that the extent of a
downward departure should not be reduced by the prospect of Bar-
nette’s future cooperation or an eventual Rule 35(b) motion. Rather,
defense counsel said, "a downward departure [under § 5K1.1] needs
to be made based on what [Barnette] has done to this point." J.A. 126.
After recounting Barnette’s cooperation, his lawyer urged the court to
consider a three-level downward departure.
The district court granted Barnette a two-level downward departure
under § 5K1.1, from level thirty-one (range of 188 to 235 months) to
level twenty-nine (range of 151 to 188 months). The court said that
it considered a two-level departure "appropriate" after "hearing from
counsel, reflecting upon the trial at which [Barnette] testified, [and]
considering all the surrounding circumstances." J.A. 129. The court
then sentenced Barnette to 180 months in prison to be followed by
five years of supervised release. This sentence, the court said, was
based on a number of factors, including the severity of Barnette’s
offenses, his apparent remorse, his cooperation with the government,
and his willingness to cooperate further. J.A. 133. The court ended by
observing that "[Barnette] has a chance to further reduce his sentence
. . . depending on what happens down the road." Id.
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Barnette appeals his sentence.
II.
Barnette contends that he received an illegal sentence because the
district court failed to exercise its full discretion in departing down-
ward under § 5K1.1. According to Barnette, the court partially (and
impermissibly) reserved its discretion under § 5K1.1 by reducing the
degree of the departure on account of Barnette’s potential for a future
sentence reduction under Rule 35(b). We have jurisdiction to review
a sentence "imposed in violation of law." 18 U.S.C. § 3742(a)(1).
This appeal turns on the distinction between § 5K1.1 and Rule
35(b). Section 5K1.1 allows a district court to sentence a defendant
below the applicable guideline range if he has provided substantial
assistance in the investigation and prosecution of others. U.S.S.G.
§ 5K1.1. Rule 35(b) allows a court to resentence a defendant to
account for substantial assistance provided after the initial sentence
was imposed. Fed. R. Crim. P. 35(b). Section 5K1.1 is thus designed
to reward substantial assistance rendered prior to initial sentencing,
and Rule 35(b) is designed to reward substantial assistance rendered
thereafter. See United States v. Drown, 942 F.2d 55, 59 (1st Cir.
1991). A sentencing court cannot allow "the prospect of Rule 35(b)
relief in the future" to influence or alter its decision on a motion for
a downward departure under § 5K1.1. Id.; see United States v. Ridge,
329 F.3d 535, 541-42 (6th Cir. 2003). Specifically, a court cannot
reduce the extent of a downward departure under § 5K1.1 in order to
"keep the carrot dangling just out of [the defendant’s] reach, thereby
continuing the incentive that prompted his presentence cooperation
into the post-sentence period." Drown, 942 F.2d at 59. The authority
vested in a court to decide a § 5K1.1 motion must be exercised fully
at the initial sentencing; the discretion attending this authority may
not be "partially ‘reserved’ for a future time" when a Rule 35(b)
motion might be filed. United States v. Bureau, 52 F.3d 584, 595 (6th
Cir. 1995).
Barnette relies on two statements in the sentencing record to argue
that the district court partially reserved its discretion when it decided
the government’s § 5K1.1 motion. The first is a statement by the
AUSA asking the court to be guarded in granting a § 5K1.1 reduction
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because of Barnette’s potential for additional sentence reductions
under Rule 35. The second is an observation by the court at the end
of the hearing that Barnette had the chance to reduce his sentence fur-
ther based on future cooperation. When these statements are consid-
ered in the context of the entire sentencing record, however, there is
no indication that the district court reserved its discretion under
§ 5K1.1 in order to prod Barnette into further cooperation with the
government.
At the sentencing hearing the district court was fully advised about
Barnette’s substantial cooperation in the investigation and prosecution
of his codefendants and the investigation in a state murder case.
Because one of Barnette’s codefendants (a fugitive) was yet to be
tried and the state murder investigation was continuing, the AUSA
pointed out that Barnette had the potential for additional sentence
reductions under Rule 35(b). The AUSA then asked the court "to be
guarded in the amount of reduction that [it] would give to Mr. Bar-
nett[e] [under § 5K1.1] at this time." J.A. 125-26. Although this com-
ment by the AUSA was ill-advised, the AUSA followed immediately
with the appropriate suggestion to the court: "At the same time, give
[Barnette] all he is due [by way of a § 5K1.1 reduction] because of
the cooperation he gave to us with regard to this particular case." J.A.
126. Moments later, Barnette’s lawyer emphasized that any down-
ward departure decision must be based "on what [Barnette] has done
to this point," with none of the merited reduction held back until he
delivers substantial assistance in the post-sentence period. J.A. 126.
The district court granted the government’s § 5K1.1 motion by
departing downward two levels. The court explained that its departure
decision was based on the reports of Barnette’s cooperation offered
by counsel for both sides, the court’s own observation and assessment
of Barnette’s assistance as a trial witness, and "all the surrounding cir-
cumstances." J.A. 129. This explanation indicates that the court fully
exercised its discretion to depart under § 5K1.1 and that it did not par-
tially reserve its discretion in anticipation of a Rule 35(b) motion.
The sentencing hearing then proceeded to a decision about the
appropriate sentence length within the 151- to 188-month range. The
court ultimately sentenced Barnette to 180 months in prison. The
court took care to explain its reasons for the sentence, mentioning
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both the severity of Barnette’s crimes and his cooperation. At the very
end of the proceeding, in what appeared to be postscript, the court
noted that "[Barnette] has a chance to further reduce his sentence . . .
depending on what happens down the road." J.A. 133. We do not take
this postscript, which came several minutes after the court made its
§ 5K1.1 decision, as a sign that the court had partially withheld or
reserved its discretion when it made the two-level downward depar-
ture under § 5K1.1. Rather, it appears that the court intended to end
the sentencing hearing with a word of encouragement to Barnette: the
government might move at a later time for a further reduction in sen-
tence under Rule 35(b) if Barnette continued to provide substantial
assistance in the post-sentence period.
In sum, the sentencing record shows that the district court fully
exercised its authority and discretion when it decided the govern-
ment’s motion for a downward departure under § 5K1.1. Because
Barnette’s sentence was not imposed in violation of law, we affirm.
AFFIRMED
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