Jesus Munguia Mendoza appeals the sentence imposed following his plea of guilty to possession of methamphetamine with intent to distribute, a violation of 21 U.S.C. § 841(a)(1). Mendoza contends that the district court erred in concluding that it lacked legal authority under the Sentencing Guidelines to depart downward on the ground that Mendoza had no control over, or knowledge of, the purity of the methamphetamine that he delivered. We agree that, under the sentencing principles set forth in
Koon v. United States,
— U.S. -,
BACKGROUND
The stipulated facts of Mendoza’s plea agreement provide as follows. In November 1994, Mendoza, along with co-defendant Hector Rodriguez, met with a government informant in Goleta, California, and arranged to sell him methamphetamine. Mendoza and Rodriguez drove the> informant to a McDonald’s restaurant in Paso Robles. Rodriguez stayed with the informant at the McDonald’s while Mendoza drove to a Kentucky Fried Chicken restaurant to meet with co-defendants Noe and Jose Miranda, whose van contained 2,912.2 grams of methamphetamine. Mendoza left his car — the trunk of which contained 917.4 grams of methamphetamine — at the Kentucky Fried Chicken parking lot and took possession of Noe Miranda’s van. Mendoza, Rodriguez, and the Mirandas were then arrested.
At sentencing, Mendoza’s base offense level was determined by adding the amount of methamphetamine found in his car to the amount found in Noe Miranda’s van. The parties stipulated in the plea agreement that the van сontained 2,544 grams of actual methamphetamine and that Mendoza’s car contained 804 grams of actual methamphetamine. The Guidelines require that the district court use the offense level determined by the weight of the actual methamphetamine if that offense level is higher than the offense level determined by the weight of the entire mixture. See U.S.S.G. § 2Dl.l(c) n.(B). As a result, the presentence report calculated Mendoza’s base, offense level to be 38, reflecting more than 3 kilograms of actual methamphetamine. ' See U.S.S.G. § 2Dl.l(e). The district court accepted that finding, but reduced Mendoza’s offense three levels for acceptance of responsibility and departed downward on other grounds.
The district court declined, however, to grant Mendoza’s request for a four-level downward departure on the ground that, as the middleman between the informant and the suppliers, he had no control over, or knowledge of, the purity of the methamphetamine that he delivered. A four-level deрarture would have lowered the base offense level to 34, which would have been applicable to 3 kilograms of methamphetamine mixture without regard to its purity. See U.S.S.G. § 2D1.1(c)(3). The district court concluded that it did not have legal authority under the Guidelines to depart downward on that basis, because the Sentencing Commission had taken the рurity of methamphetamine into account when formulating section 2D1.1. The district court stated:
In this case the Commission has decided that purity should be considered in deciding the amount on which the base offense level should be based, and so I think it is a factor they’ve considered. They’ve not made a distinction between those who manufacture and therefore have direct control over the purity, and those who have no control over the purity.
There isn’t any evidence in this case that the parties, of course, even discussed purity, so its [sic] a little bit different than the type of case where you have the parties having some discussion about the quality of the drug, thе purity of the drug. No discussion takes place here, so it’s hard to know how important that was to any of the players involved in the case.
But the Court believes that it would be appropriate to make the adjustment in the role of the offense if, in fact, the role of the offense adjustments applied here. They don’t and so the Court can’t make the adjustment here.
The district court also declined the invitation of the prosecution to rule both that it had no authority to depart and, in the alternative, that if it had authority it declined to depart in the exercise of its discretion. The judge stated that “to make it clear, the Court believes that she has no discretion to depart downward on the argument counsel has made.”
The district court then sentenced Mendoza to 210 months incarceration, the low end of the applicable guideline range of 210 to 265 months. The court indicated that lack of control over, or knowledge of, purity of the methamphetamine was a proper faсtor to consider in selecting the low end of the *513 Guideline range, but that the court would have sentenced the defendant to the low end anyway “so I am not here choosing the 210 because of the purity argument.”
This appeal followed.
ANALYSIS
We have jurisdiction to review the district court’s conclusion that it lacked the legal authority under the Guidelines to depart downward.
United States v. Goroza,
The Sentencing Eeform Act of 1984 provides that a departure from the Guidelines is appropriate when “there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines.” 18 U.S.C. § 3553(b). The district court concluded that it could not depart downward on the ground of lack of control over, or knowledge of, the purity of the methamphetamine because the Guidelines already took purity into account in establishing the offense level. The Supreme Court’s oрinion in Koon makes clear, however, that section 3553(b), in conjunction with the Guidelines, does not restrict the power of the district courts that severely.
18 U.S.C. § 3553(b) instructs a court that, in determining whether there exists an aggravating or mitigating circumstance of a kind or to a degree not adequately considered by the Commission, it should consider “only the sentencing guidelines, policy statements, and official commentary of the Sentencing Commission.” The Guidelines, however, “place essentially no limit on the number of potential factors that may warrant departure.” [ ] The Commission set forth factors courts may not consider under any circumstances but made clear that with those exceрtions, it “does not intend to limit the kinds of factors, whether or not mentioned anywhere else in the guidelines, that could constitute grounds for departure in an unusual case.”
Koon,
— U.S. at -,
The Court thus held in
Koon
that “a federal court’s examination of whether a factor can ever be an appropriate basis for departure is limited to determining whether the Commission has proscribed,
as a categorical matter,
consideration of the factor.”
Id.
at 2051 (emphasis added). Those factors expressly prohibited by the Guidelines are few; they include race, sex, national origin, creed, religion, socio-economic status, § 5H1.10; lack of guidance as a youth, § 5H1.12; drug or alcohol dependence, § 5H1.4; and economic hardship, § 5K2.12. If the Commission has not categorically proscribed the factor, departure is authorized if “the factor, as occurring in the particular circumstances, takes the case outside the heartland of the applicable Guideline.”
Koon,
— U.S. at -,
Applying the
Koon
analysis, we conclude that the district court did have legal authority under the Guidelines to consider a downward departure on the ground that Mendoza had no control over, or knowledge of, the purity of the methamphetamine that he delivered. That ground does not involve one of the few factors
categorically
proscribed by the Sentencing Commission.
See United States v. Rivera,
The question then arises whether the district court’s error was harmless. A district court’s error in application of the Guidelines is subject to harmless error analysis, and no remand is required if “the error
*514
did not affect the district court’s selection of the sentencе imposed.”
Williams v. United States,
The government argues that the district court could not have departed downward in any event, for several reasons. First, the government contends that the Guidelines explicitly consider the purity of methamphetamine in establishing the offense level for Mendoza’s offense. That fact is true, but does not exclude the possibility оf a downward departure. Mendoza’s argument that he did not have control over, or know the purity of, the methamphetamine is simply another form of the claim that a drug possessor did not know of the quantity of drugs possessed. In establishing the offense level, a defendant charged with conspiracy is held accountable for the amоunt of drags possessed by coconspirators to the extent those amounts are foreseeable, and for all the drags actually possessed by the defendant himself or herself. U.S.S.G. § lB1.3(a)(1)(A),(B);
United States v. Mesa-Farias,
This possibility has not escaped the attention of the Commission. In its Amendment No. 485, effective November 1,1993, it added what is now Application Note 14 to the commentary following § 2D1.1 in the 1995 Guidelines. 1 That Note provides, in pertinent part:
Where (A) the amount of the controlled substance for which the defendant is accountable under § 1B1.3 (Relevant Conduct) results in a base offense level greater than 36, (B) thе court finds that this offense level over represents the defendant’s culpability in the criminal activity, and (C) the defendant qualifies for a mitigating role adjustment under § 3B1.2 (Mitigating Role), a downward departure may be warranted. The court may depart to a sentence no lower than the guideline range that would have resulted if the defendant’s Chapter Two offense level had been offense level 36. Provided, that a defendant is not eligible for a downward departure under this provision if the defendant:
(a) has one or more prior felony convictions for a crime of violence or a controlled substance offense as defined in § 4B1.2
ífí íjí
(f) sold the controlled substance or plаyed a substantial part in negotiating the terms of the sale.
U.S.S.G. § 2D1.1, Commentary, Application Note 14. In
United States v. Pinto,
*515 Koon, however, militates against our deciding in the first instance that Mendozа’s case, in light of Note 14, fails to present a “mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission.” 18 U.S.C. § 3553(b). If there is anything that Koon made clear, it is that the question whether a particular case presents such circumstances is a matter within the discretion of the district court, subject only to deferential review by an appellate court.
Whether a given factor is present to a degree not adequately considered by the Commission, or whether a discouraged factor nonetheless justifies departure because it is present in some unusual or exceptional way, are matters determined in large part by comparison with the facts of other Guidelines cases. District courts have an institutional advantage over appellate courts in making these sorts of determinations, especially as they see so many more Guidelines cases than appellate courts do.
Koon,
— U.S. at -,
The same considerations lead us to decline to rule, as the governmеnt urges us to do, that Mendoza’s case necessarily falls within the “heartland” of Guideline § 2D1.1 and is thus inappropriate for departure. What falls within the “heartland” of a Guideline is also within the discretion and special expertise of the district court in the first instance.
See Koon,
— U.S. at ---,
We also reject the government’s argument that Note 9 of the commentary following § 2D1.1 precludes departure in this case. Note 9 provides only that a district court cannot depart
upward
on the basis of unusually high purity of methamphetamine; it sаys nothing about whether a district court can depart
downward
on the ground that the defendant had no control over, or knowledge of, the purity of the methamphetamine that he was transporting. Indeed, the rationale behind section 2Dl.l’s unequal treatment of actual or “pure” methamphetamine and a mixture containing methamphetаmine is that possession of “unusually pure narcotics may indicate a prominent role in the criminal enterprise and proximity to the source of the drugs.” U.S.S.G. § 2D1.1, Commentary, Application Note 9;
see also United States v. Innie,
*516 CONCLUSION
The district court erred in concluding that it lacked power to consider a downward departure on the ground of Mendoza’s lack of control over, and knowledge of, the purity of the methamphetamine he possessed for distribution. The district court expressly declined to deny departure on discretionary grounds. We therefore vacate the sentence and remand for resentencing, to permit the district court to exercise its discretion with regard to that ground of departure.
SENTENCE VACATED; REMANDED FOR RESENTENCING.
Notes
. The 1995 Guidelines were applied by agreement in this case. Amendment No. 485 appeared as Note 16 in the 1994 Guidelines.