Appeal from the United States District Court for the Eastern District of Wisconsin.
Before EASTERBROOK, RIPPLE and DIANE P. WOOD, Circuit Judges.
DECIDED DECEMBER 13, 1996
In accord with his plea agreement, Darin Senn cooperated actively with the government in its drug investigations. The government, in return, filed a motion for downward departure based upon his substantial assistance. The government revised its recommendation, however, after the court granted its motion for dismissal of one count to which Mr. Senn had pleaded guilty. The court followed that revised recommendation. Mr. Senn appeals his sentence on the ground that the government violated his right of due process by failing to provide to the court an accurate, good faith assessment of his level of cooperation in its revised motion for downward departure. He also appeals the forfeiture of his property on double jeopardy grounds. For the reasons that follow, we affirm the judgment of the district court.
Seven individuals were known to be involved in a conspiracy to distribute cocaine, marijuana and methamphetamine. On June 22, 1994, a nine-count indictment was returned in the Eastern District of Wisconsin against Darin Senn and other known coconspirators. The indictment also contained forfeiture provisions seeking the forfeiture of thirteen firearms and $50,000 seized from Mr. Senn at the San Diego, California, airport. Several months later, a one-count information also was filed; it charged Mr. Senn with evading the financial reporting requirements by structuring financial exchanges for less than $10,000.
On February 6, 1995, pursuant to a plea agreement, Mr. Senn pleaded guilty to the counts of conspiracy to distribute controlled substances (21 U.S.C. secs. 846, 841(a)(1)) and use of firearms during and in relation to the drug trafficking offense (18 U.S.C. secs. 924(c), 2). He also entered a guilty plea to the information charging him with currency structuring and evading the reporting requirements (31 U.S.C. secs. 5324(a)(1), 5322(a); 18 U.S.C. sec. 2). Mr. Senn agreed to cooperate with the government. In exchange, the government agreed to move for a downward departure under sec. 5K1.1 *fn1 of the United States Sentencing Guidelines ("USSG") and 18 U.S.C. sec. 3553(e). *fn2 Mr. Senn significantly aided the government's investigation and gave testimony at subsequent trials.
Because of Mr. Senn's substantial assistance, the government filed, on November 13, 1995, a motion requesting a fourteen-level downward departure with respect to the conspiracy count. Under that recommendation, Mr. Senn would serve 24 to 30 months for the conspiracy count. When that sentence was added to the mandatory 60 months for the firearms charge, the total sentence would be 84 months.
Shortly before sentencing, the Supreme Court decided Bailey v. United States, 116 S. Ct. 501 (1995). That decision invalidated the theory concerning "use" of a firearm during a drug trafficking crime (18 U.S.C. sec. 924(c)) on which the government had relied in this case. In light of Bailey, the government moved to dismiss the sec. 924(c) firearms count against Mr. Senn. It also notified both the court and the defendant that, because of the dismissal of that count, the government would adjust its sentencing recommendation in the presentence report. *fn3 Although it would continue to recommend a departure downward that is 50% from the low end of the guideline range, the government stated, it would change its specific recommendation concerning Mr. Senn's substantial assistance from a fourteen-level to a seven-level decrease.
At the sentencing hearing the government presented that revised recommendation. The court granted the government's motions for dismissal of the firearms count and for the seven-level downward departure based on the defendant's cooperation with the government. The court placed Mr. Senn's total offense level at 30. After a seven-level departure to level 23, which established a guideline imprisonment range of 57-71 months, the court sentenced Mr. Senn to 60 months in custody plus four ...