United States v. Trimm

999 F.3d 119

UNITED STATES of America, Appellant

v.Hillary TRIMM, Defendant-Appellee

No. 20-2264

August Term 2020

United States Court of Appeals, Second Circuit.

Argued: May 21, 2021

Decided: June 2, 2021

For Appellant: Paul D. Silver (Lisa M. Fletcher, on the brief), Assistant United States Attorney for the Northern District of New York, Albany, NY

For Defendant-Appellee: George F. Hildebrandt, Syracuse, NY

Before: Livingston, Chief Judge, Jacobs, and Menashi, Circuit Judges.

Per Curiam:

This case underscores that the authority of a district court, pursuant to 18 U.S.C. § 3553(e), to impose a sentence below a statutory minimum to take account of a defendant's substantial assistance is limited – that this is an authority contingent by statute on Government motion and that the Government, absent breach of a contractual obligation, has "a power, not a duty, to file a motion when a defendant has substantially assisted."¹ Wade v. United States , 504 U.S. 181, 185, 112 S.Ct. 1840, 118 L.Ed.2d 524 (1992). The United States appeals from the June 30, 2020 judgment of the District Court for the Northern District of New York (Hurd, J. ) sentencing Defendant-Appellee Hillary Trimm ("Trimm") principally to imprisonment for sixty months after her plea of guilty, pursuant to a plea agreement, to a one-count information charging a violation of 18 U.S.C. § 2251. Trimm pleaded guilty to conspiring with Stacey J. LaPorte, Jr. ("LaPorte") to use a minor female to engage in sexually explicit conduct for the purpose of producing visual depictions of such conduct.² The applicable statutory minimum term for this offense is fifteen years. The district court sentenced Trimm below this term after ordering the Government to make a § 3553(e) motion and charging that its refusal to do so voluntarily was both unconstitutional and in bad faith, on the theory that by withholding the motion, the Government was purposefully and unduly constraining the court's sentencing discretion.

This is the Government's second sentencing appeal in this case. The first time around the district court also directed the United States to move pursuant to § 3553(e), so that the court could sentence Trimm below the statutory minimum. When the Government declined to do so, stating that its valuation of Trimm's substantial assistance did not support a motion pursuant to § 3553(e), the district court nevertheless sentenced Trimm to a term of imprisonment of ninety months, deeming the § 3553(e) motion to have been made without finding that the Government had either acted in bad faith or with an unconstitutional motive. We vacated that judgment and remanded for resentencing. We do so again now, and remand with the direction that Trimm be sentenced before a new district court judge.

BACKGROUND

Trimm entered her guilty plea on May 11, 2017, pursuant to a written plea agreement with an addendum reflecting the terms of her agreement to cooperate with the United States Attorney's Office for the Northern District of New York. In the addendum, the United States Attorney's Office agreed, in relevant part, as follows:

At or before sentencing, the United States Attorney's Office will advise the Court of the nature and extent of the cooperation and assistance provided by the defendant pursuant to this Addendum to the Plea Agreement. If the United States Attorney's Office determines, in its sole discretion, that the defendant has provided "substantial assistance" in the investigation or prosecution of one or more other persons who have committed offenses, it may, in its sole discretion, credit the defendant in one or more of the following ways: (i) move for a downward departure pursuant to either or both U.S.S.G. § 5K1.1 and/or 18 U.S.C. § 3553(e) ....

App'x at 40. The addendum explicitly provides that the United States Attorney's Office "does not promise or guarantee that it will make such motion(s) for departure .... Whether and how to credit any proffered cooperation and assistance is within the sole discretion of the United States Attorney's Office." App'x at 41. The agreement further notes that in the event of a Government motion for departure based on the defendant's substantial assistance, "the final decision as to how much, if any, reduction in sentence is warranted because of that assistance rests solely with the sentencing Court, subject to any statutory minimum penalty , which will limit the extent of any departure in the event the United States Attorney's Office, in its sole discretion, declines to make a motion for a downward departure under 18 U.S.C. § 3553(e)." App'x at 42 (emphasis added).

At the plea hearing before the district court, the Government indicated that based on the parties’ sentencing stipulations as to base offense level and adjustments, Trimm's offense level was over 43, the highest level in the United States Sentencing Guidelines ("Guidelines" or "U.S.S.G."). Even at Criminal History Category I, the Government advised, the Guidelines in such a case yield a Guidelines range of life, which is over the statutory maximum for the offense to which Trimm was pleading guilty. Trimm's actual Guidelines sentence, the Government said, would thus be 360 months (thirty years), the statutory maximum. See U.S.S.G. § 5G1.1(a). As to the statutory minimum, the district court specifically advised Trimm that she also faced a mandatory minimum of fifteen years, saying, "Just to be clear, as of now, this circumstance may change, but at the time I sentence you as of right now, you are facing a minimum of fifteen years prison which means that I cannot, even if I was so inclined, give you any less than fifteen years." App'x at 65.

It is undisputed that Trimm provided substantial assistance to the Government in its prosecution of LaPorte, described by the Government as a "dangerous serial sex offender." United States v. Trimm , 450 F. Supp. 3d 195, 203 (N.D.N.Y. 2020). Trimm, along with another of LaPorte's co-conspirators, MacKenzie L. Bailey ("Bailey"), testified at LaPorte's trial. Trimm's testimony related to Count Two, regarding the exploitation of her daughter. Bailey testified regarding LaPorte's exploitation of three additional children, as well as his on-line child pornography activities. LaPorte was convicted on each of the six counts with which he was charged and was sentenced principally to ninety-five years’ imprisonment.

As to Trimm, the Probation Department prepared a Presentence Investigation Report in connection with her contemplated sentencing and concluded that Trimm's offense level was, indeed, 43 and that the Guidelines would thus yield an imprisonment range of life. Trimm's actual imprisonment range thus became the statutory maximum of thirty years for her offense of conviction. Before Trimm was sentenced for the first time, the Government advised that while it intended to move at the sentencing hearing pursuant to U.S.S.G. § 5K1.1 for a downward departure from Trimm's applicable Guidelines range based on her substantial assistance in LaPorte's prosecution, it did not intend to move pursuant to 18 U.S.C. § 3553(e) for a sentence below the fifteen-year mandatory minimum. In a letter to the court, the United States specified that it "intend[ed] to move for a departure of 5 levels, from a Total Offense Level of 42," which represented the "closest Guidelines level" to 43 (Trimm's actual offense level) "that allows for a 30-year sentence." App'x at 71. A five-level downward departure from that starting point yielded a sentencing range of 210 to 262 months. The Government recommended a term of imprisonment of 210 months, the bottom of that range.

Trimm moved for the district court to compel the Government to make a motion pursuant to § 3553(e). The Government, in response, explained that pursuant to its procedures for determining whether to make a § 5K1.1 motion for a downward departure; the extent of any recommended departure; and whether to move pursuant to § 3553(e), the recommendation in Trimm's case was subject to multiple levels of review (including by the United States Attorney) at which consistent considerations were applied. As explained at Trimm's first sentencing, the Government's § 5K1.1 motion, beginning at level 42, called for more than a twelve-year reduction from Trimm's Guidelines sentence and that in the Government's view this reduction was sufficient to "generously account[ ] for [Trimm's] substantial assistance" without "oversell[ing] [her] usefulness to the government."³ App'x at 97. The district court nevertheless determined that Trimm was entitled to a ten-level departure. Beginning with an offense level of 40 instead of 42 and Criminal History Category I, the district court determined that the applicable Guidelines range was 97 to 121 months. The court then "deemed" a § 3553(e) motion to have been made, notwithstanding that the Government had made no such motion, and that the court had made no determination that the Government had acted for an unconstitutional motive or in bad faith. The district court sentenced Trimm principally to a term of imprisonment of ninety months.

The Government appealed and, as already noted, we vacated and remanded the judgment, observing as follows:

The district court here purported simply to "deem" the government to have made a motion that it had expressly declined to make, apparently because the court believed that a sentence below the statutory minimum was appropriate. But the district court did not find unconstitutional motive or bad faith. ... Accordingly, it was without authority to sentence Trimm below the statutory minimum of 15 years’ imprisonment.

United States v. Trimm , 756 F. App'x 109, 110 (2019).

On remand, Trimm moved once again to compel the Government to make a § 3553(e) motion. The district court granted the motion, concluding first that the Government had acted with an unconstitutional motive to limit the court's sentencing discretion in declining to make the motion and, second, that it had acted in...