Appeal from the United States District Court for the Central District of Illinois. No. 00-CR-30016--Richard Mills, Judge.
Before Harlington Wood, Jr., Kanne, and Rovner, Circuit Judges.
The opinion of the court was delivered by: Kanne, Circuit Judge.
Defendant Shawn W. Jones pleaded guilty to three counts of criminal contempt in violation of 18 U.S.C. sec. 401 on August 29, 2000. On January 4, 2001, the district court entered an order sentencing Jones to 76 months imprisonment, three years of supervised release, and a $300 special assessment. In imposing the imprisonment term, the district court applied an upward departure from the Sentencing Guidelines because of Jones' failure to comply with a cooperation agreement that he entered into with the government on June 8, 1995. On appeal, Jones argues that: 1) the district court's grounds for applying the upward departure were improper and 2) the extent of the upward departure in this case was unreasonable. We affirm.
On March 3, 1995, Jones was convicted of conspiracy to distribute cocaine and marijuana in violation of 21 U.S.C. sec. 846 and of possession of cocaine and marijuana with the intent to distribute in violation of 21 U.S.C. sec. 841(a)(1) ("drug convictions"). Prior to sentencing for the drug convictions, Jones entered into a cooperation agreement ("Agreement") with the government on June 8, 1995. The Agreement stated, in relevant part, that Jones would "provide complete and truthful testimony to any grand jury, trial jury, judge, or magistrate in any proceeding in which he may be called to testify by the government." In exchange, the Agreement provided, among other things, that the government would recommend that the district court apply a downward departure to Jones' sentence for the drug convictions based on the "government's evaluation of the nature, extent, value and timeliness of [Jones'] assistance." Further, it provided that "[a]ny material breach of any provision" of the Agreement by Jones "would void [the Agreement] in its entirety."
Pursuant to the Agreement, on December 27, 1995, Jones testified in front of a grand jury investigating Robert Scott about his and Scott's involvement in the activities that gave rise to the drug convictions. As a result, on April 1, 1996, the government moved for a downward departure to Jones' drug sentence pursuant to United States Sentencing Guideline sec. 5K1.1.*fn1 In that motion, the government noted that the sentencing range applicable to Jones' drug convictions was 188 to 235 months imprisonment and asked the district court to reduce Jones' sentence to 162 months imprisonment. The district court entered an order granting the government's downward departure motion, stating that "it accepted the Government's sec. 5K1.1 motion proposing a downward departure to 162 months," but that it "concluded that a sentence of 144 months was appropriate."
In late 1998, the government requested that Jones provide further grand jury testimony about the activities underlying the drug convictions. To that end, on January 7, 1999, the government filed a motion to obtain a grant of immunity for Jones pursuant to 18 U.S.C. sec.sec. 6002-6003 and for an order compelling Jones to testify before the grand jury. The district court granted the government's motion in full and ordered Jones to testify before the grand jury. However, on January 7, 1999, when brought before the grand jury, Jones refused to take oath or to provide testimony. Thereafter, Jones again refused to testify before the grand jury, despite being ordered by the district court to do so. The government then filed a motion to hold Jones in civil contempt, but the district court deferred ruling on the motion in order to provide Jones with another opportunity to testify before the grand jury. On February 3, 1999, Jones appeared before the grand jury and for a third time, refused to take oath or testify. That same day, the district court held Jones in civil contempt. In June, 1999, thegovernment obtained an indictment against Scott.
On December 1, 1999, the government filed a motion to request a grant of immunity for Jones and for an order compelling him to testify at Scott's trial. After the district court granted this motion, Jones refused to testify at Scott's trial and was held in civil contempt for a second time. Scott's trial ended in a mistrial after the jury was unable to reach a verdict. On April 3, 2000, the government filed a motion to obtain a grant of immunity for Jones and for an order compelling him to testify at Scott's second trial. After the district court granted this motion, Jones refused to testify at Scott's second trial and was held in civil contempt for a third time. Eventually, Jones' 1995 grand jury testimony was read into the record at Scott's second trial, and Scott was convicted.
On May 5, 2000, Jones was charged in a superseding indictment with three counts of criminal contempt pursuant to 18 U.S.C. sec. 401. Count 1 of the indictment charged Jones with criminal contempt due to his three refusals to provide grand jury testimony. Count 2 charged Jones with criminal contempt due to his refusal to testify at Scott's first trial, and Count 3 for his refusal to testify at Scott's second trial. On August 29, 2000, Jones pleaded guilty to all three counts of criminal contempt. Thereafter, the probation office determined that Jones should be sentenced under Guideline sec. 2X3.1 (Accessory After the Fact) rather than under the more lenient Guideline sec. 2J1.5 (Failure to Appear by Material Witness), and recommended a sentencing range of 57 to 71 months imprisonment.
At Jones' sentencing hearing on January 2, 2001, the district court admonished Jones for refusing to comply with the Agreement, but found that because there was no evidence that Jones intended to obstruct justice, Guideline sec. 2X3.1 did not apply.*fn2 Applying Guideline sec. 2J1.5, the district court determined that Jones' offense level was 7, resulting in a sentencing range of 4 to 10 months imprisonment.
The government then moved for an upward departure pursuant to Guideline sec. 5K2.0.*fn3 Under that Guideline, an upward departure would be appropriate if Jones' refusal to testify distinguished his "case from the 'heartland' cases covered by" Guideline sec. 2J1.5. U.S.S.G. sec. 5K2.0. The government requested that the district court apply a 17-level upward departure and sentence Jones to 71 months imprisonment. The district court granted the government's departure motion and stated that its decision to apply an upward departure to Jones' sentence was based on Jones' repeated refusals to testify and on this court's decision in United States v. Simmons, 215 F.3d 737, 743 (7th Cir. 2000) (upholding upward departure based on Guideline sec. 5K2.0 for defendant's failure to comply with plea agreement requiring him to testify in future proceedings).
On January 4, 2001, the district court entered an order stating that as in Simmons, 215 F.3d at 743, Jones' actions warranted an upward departure in the amount necessary to take away the benefit conferred upon Jones in 1996. The district court calculated that the benefit of the1996 downward departure was 66 months,*fn4 and it added this amount to the 10 month sentence that was the upper end of the applicable range. Thus, the district court ...