WOLLMAN, Circuit Judge.
The United
appealed
as excessive
the downward departure granted by the
district court for Burns’s substantial assis
tance. Burns cross-appealed, arguing that
the district court
erred
selecting an
incorrect guidelines range as a departure
starting point. After a
panel
divided
affirmed,
United States v.
Burns,
I. Burns was indicted on one count of con- spiracy to manufacture and fifty distribute grams or more of methamphetamine in violation of 21 §§ 841(a)(1), U.S.C. 841(b)(1)(A), and 846. government notified Burns of its intention to en- seek penalties hanced under § 21 U.S.C. subject would him to a mandatory life sentence. In the absence enhancement, Burns faced range of 188 to 235 months. coop- Burns erated government with the gov- ernment, return, moved for a downward departure under United States Sentencing (U.S.S.G.) Guidelines Manual § 5K1.1 and Counsel presented who argument on be- 3553(e). U.S.C. half of appellant L. Teig, Robert At sentencing, told the AUSA, Rapids, Cedar IA. Also appearing court that Burns had immediately admit- on appellant’s brief was Wehd, Shawn S. ted his involvement and had been de- AUSA, City, Sioux IA. briefed on separate two occasions, provid- Counsel presented who argument on be- ing detailed information on several groups half of the appellee was Richard S. Rhine- involved in manufacturing methamphet- hart of City, Sioux IA. amine. The court was also made aware assistant representations on the occasions on two had testified Burns defendant that the I find attorney, U.S. provided had jury and grand before information bit of every single provided ongoing several pertaining information extent knew, couldn’t—the you so he assisted cooperation His investigations. not be could the defendant’s drug-quan- establishing all provided that he sense in the greater defendant, Brad one against evidence tity knew. he information addition, served Burns In Messerly. defendant, defendants that some Now, true it’s a second against key witness leads which gov- information thereby enabling greater have DeFoe, Victor I don’t But people. led more which indictment indictments obtain ernment think the test. necessarily charac- *4 government think that’s The plea. guilty to a provide timely, the defendant is did as the test cooperation Burns’s terized he everything on assistance recommended substantial and truthful, complete and the he did. So case knew, and in from a 360-month percent 15 the on very highly scores defendant sentence. prong. third govern- the rejected court district sec- on the very highly scores Defendant 60 departed and recommendation ment’s truthfulness, completeness, prong, ond summa- months: 144 to percent the information. of reliability and § 5K1.1 fac- the of its rized consideration the defen- that no information There’s as follows: tors any- was assistance dant’s as a start- months use 360 to going I’m complete, percent a hundred thing but find specifically I case In this point. truthful, a hundred and percent hundred factors, number factor 5K1.1 the under Burns scores So Mr. reliable. percent assis- the defendant’s of 5, the timeliness prong. the second on very highly exceptionally was tance, defendant the evalua- the is Court’s prong first understanding [T]he My this case. timely in of the usefulness and significance of he tion as soon cooperating he started con- taking into usefulness defendant’s exceptional that’s To me arrested. was evaluation government’s the sideration defendants some While timeliness. the Here rendered. of the virtually no defendants early, that start de- that the has indicated that.... earlier than start in front of twice testified fendant excep- was timeliness that his I find So drug he established jury, that grand cooperat- started apparently tional led defendant on one quantity impact advised he was ing before another plea guilty indictment Sentencing Guide- States of the United both that I find defendant. about anything lines, he knew before very useful. very significant his sen- affect might guidelines how govern- which Sixth reason his for some Now he exercised tence, before only rec- disclose, they pres- refuses counsel ment to have right Amendment tell they won’t but percent, the fifth 15 case in this ommend I think So ent. per- 15 only recommend they why favor heavily in me very weighs factor refuses And cent. defendant.... five 5K1.1 any one how indicate injury any apply, 4 does Number recommen- the 15 affect factors I because risk danger of suffered dation. that. about anything heard haven’t into consideration take I do So while of the and extent 3, nature Number signifi- evaluation case based assistance, in this defendant’s 076 usefulness, Booker, put
canee and it’s hard to whether non-guidelines decide on the weight appropriate 15 recommen- sentence is more under the the government dation because refuses circumstances. See United States v. Haack, (8th 997, they Cir.), to disclose how arrive at that rec- F.3d 403 1002-03 denied, 276, ommendation. cert. U.S. S.Ct. (2005). This 163 L.Ed.2d case comes looking And back on the other sentenc- appeal before us on had, ings I’ve that recommendation - guidelines post- and not from a my substantially is in view lower than Booker variance. apply We abuse of
other the government recommendations discretion standard when we review for similarly has made for situated defen- reasonableness the extent of a district dants. court’s sentence reduction below the sen that, all Having indepen- said I have the tencing guidelines or beneath the manda right dent under 5K1.1 to evaluate the See, tory e.g., minimum sentence. United substantial assistance based on 5K1 (8th Dalton, v. factors as see it. Saenz, Cir.2005); United States Having taken into consideration the fact Cir.2005); F.3d *5 very, that the defendant very scores (8th Mashek, 1012, v. States 406 F.3d 1017 highly factor, on the second the third Cir.2005). factor, factor, and the fifth I’m going to reduce the defendant’s sentence sub- 3553(e) §A permits motion the stantially beyond what the government to court sentence below a statutory mini ought recommends in this That case. to § mum and a motion under 5K1.1 author no surprise come as to the izes the depart below because a ten-year history have of applicable advisory guideline the range in doing just that because I evaluate the determining advisory guideline the sen five differently factors than—than how Williams, tence. See United v. 474 does, the govern- and the (8th Cir.2007) 1130, (citing F.3d 1131 Me ment they refuses to how disclose do it 128-29, States, 120, v. lendez United 518 U.S. to me. 2057, 135 (1996)). S.Ct. L.Ed.2d 427 116 Where, here, Sent. Tr. at 12-15. a district court imposes a statutory sentence below the minimum in appeal, On the government argues that 3553(e) motion, § response to a depar the ignored the district court its recommenda- ture must “exclusively be based on assis tion for a 15 departure and that tance-related Id. considerations.” at 1130- (ten level) the 60 court’s offense § provides 31. Although 5K1.1 assistance- light was excessive in of Burns’s related may factors that district court assistance. cross-appeals, arguing Burns consider, it is an exhaustive list. Dal that the depart- district court should have ton, 5Kl.l(a) § F.3d 1033. The ed from the 188 guidelines to 235 month factors include: range of from pre- instead the 360-month (1) sumptive life the court’s of signifi- sentence. evaluation the
cance and usefulness of the defendant’s
II.
assistance, taking into consideration the
of
evaluation
the assis-
determining
sentence,
When
rendered;
tance
the district court must first ascertain the
(2)
governing guidelines range,
truthfulness,
then consider
completeness, and
any permissible departures
reliability
within
of any
or
information
testimo-
guidelines’s structure,
defendant;
finally, post-
ny provided by
guide
fall
to the recommended
(3)
defen-
tors
close
nature and extent
lines,
extraordinary
must
“[a]n
reduction
assistance;
dant’s
supported by extraordinary
be
circum
suffered,
(4)
danger
or
any injury
(alteration in original)
stances.” See id.
his
defendant or
injury
risk of
Dalton,
1032);
(quoting
404 F.3d at
see
assistance;
from his
family resulting
v. Maloney,
United States
also
(5)
defendant’s as-
the timeliness
Cir.2006)
(8th
(“
663,
excep
‘[AJbsent
sistance.
facts,’
that
imposition
tional
sentence
5Kl.l(a).
‘dramatically lower than
recom
is
U.S.S.G.
is an
guidelines
mended
abuse
its discre
A
court abuses
district
” (alteration
the district court’s discretion.’
ruling
fails to
consid
by issuing
tion
original)
(quoting
United States
re
factor that should have
er a relevant
Cir.2006),
Goody, 442 F.3d
significant
weight, gives
significant
ceived
2006)
(U.S.
petition
Aug.
cert. filed
factor,
or irrelevant
improper
weight
(No. 06-6079))).
note that under the
We
only appropriate factors but
or considers
Circuit’s measure
reasonable
Seventh
judg
a clear error of
nevertheless commits
ness, “the
is
the district
standard whether
by arriving at
sentence that
lies
ment
sufficiently
explanation
propor
court’s
range
of choice dictated
limited
outside
of the variance from
tional to the extent
Haack, 403 F.3d
the facts of the case.
words, ‘the
guidelines range;
in other
at 1004.
deviation,
more
greater
compelling
”
explanation
must be.’
that “[depar
We noted
Saenz
Repking,
States v.
F.3d
under
5K1.1
reductions under
tures
*6
(7th Cir.2006)
curiam)
(per
(quoting
1095
3553(e)
§
not
untethered from
should
be
Wallace,
606,
v.
458 F.3d
States
United
advisory guidelines.”
the
the structure of
(7th Cir.2006), petition
cert.
613
for
filed
Saenz,
1162;
at
also
428 F.3d
see
United
2006) (No.
(U.S.
06-7779)).
13,
Like
Nov.
Cammisano,
1057,
v.
917 F.2d
1064
wise,
evaluating
while
we have observed
Cir.1990)
(8th
the
(stating
to
n. 5
rea
departure
presumptively
the
from
possible,
the extent of
extent
farther
guidelines range that “the
sonable
be linked to the structure of
should
presump
district court varies from
guidelines).
departures and re
Because
guidelines range,
tively reasonable
3553(e)
§
ductions
on
5K1.1 and
based
justification
... must
compelling
more
contextually
de
appear
within
scheme
McMannus, 436
be.”1 United States v.
“to
signed
reduce unwarranted sentence
(8th Cir.2006);
871,
Ma
see also
F.3d
874
defendants,”
among
disparities
similar
668;
at
v.
loney, 466 F.3d
United States
Saenz,
1162,
(8th Cir.2006);
at
1317,
428 F.3d
because
446 F.3d
1319
Bryant,
Gonzalez-Alvarado,
Sentencing
adjust
477
sentence
v.
Commission’s
United States
Cir.2007).2
648,
sum,
In
our
fac- F.3d
mitigating
aggravating
ments for
variances,
that,
suggest
following
not mean to
Rita
Booker
we do
1. We observe
-
-,
States,
through
types
citations to both
of sentenc-
our
127 S.Ct.
U.S.
de-
(2007),
cases that the substantial assistance
presumption
168 L.Ed.2d
always, going for-
parture
should
standard
prop-
sentence within a
reasonableness
ward,
Because
mirror the variance standard.
range
erly
guidelines
calculated
exists
post
variances must be reasonable
-Booker
appellate level.
3553(a),
regard
§to
while substantial-
with
though
analysis
under
Even
has thus far
are considered
similar
assistance reductions
sentencing guidelines or of
weigh
been used to
the reasonableness
the rubric of
3553(e) (which
by
post-
itself is
affected
departures and of
substantial assistance
extraordinary reduction/extraordinary cir-
traordinary” label more accurately serves
requires
cumstances formulation
circum-
aas
convenient
depar-
characterization of
stances of a strength proportional to the
tures that we have
particularly
considered
extent of the deviation from reductions
large
to
relative
the two to four offense
by
envisioned
guidelines’s
structure.
adjustments
level
generally
by
envisioned
below,
As discussed
under
proportion-
the structure of the sentencing guidelines
ality standard, Burns’s ten-level and 60 for mitigating or aggravating circum-
percent reduction exceeds the bounds of
Saenz,
(“[T]he
stances.4
763 testifying). people” by “dangerous from offender, from departure category IV of assis- of the value effectively constitutes Determinations 144 months 360 that reduction percent must be any given and 60 tance for circumstance ten-level deviation. a substantial considered must be continuum light of the entire viewed (cit Jensen, at 1001-02 F.3d See, 493 e.g., with that associated behavior defendant their associated ex and cases ing recent Coyle, v. United States See circumstance. guide in terms traordinary reductions (8th Cir.2005). Re- 1193 429 F.3d United, Meyer, 452 v. levels); States line impressive sub- qualitatively more quiring Cir.2006) (8th (citing nu 998, 1001 F.3d justify progressively assistance stantial decisions Circuit Eighth recent merous of re- goal departures furthers larger above variances which sentencing disparities unjustified ducing extraordinary), considered were percent at situations exist recognizes that yet cert, 2006) (U.S. Nov. petition filed assistance bell- edge of the tapering Dalton, (No. 06-8085); F.3d that substan- justify departures curve that level) (or de twelve percent a 75 (finding Sentencing Guidelines’s tially exceed Saenz, also extraordinary); see parture range. per that a 68 (holding at 1162 level) unrea (or was departure eleven cent (or III. noting that a
sonable extraordinary); level) be would departure eight informed its court The district Nelson, . cf 5Kl.l(a) factors. considering Cir.2007) (endorsing 344, 347 F.3d the court then, at whether look, first We reduc a 40% that judge’s comment district as it considered its discretion abuséd was “ex assistance for substantial tion as- Burns’s the circumstances weighed beast,” as a and a “rare tremely generous” court’s 60 the district and whether sistance common based “more was 20% reduction level) reason- (ten departure was judges other that he and on sentences We present. the circumstances given able imposed.”). have contention Burns’s then address are infre- Extraordinary circumstances from incorrect departed court district going and involve quently found range. guidelines by other defen- provided beyond well presence have found we dants. When A. propor- strength awith circumstances magnitude
tional cites Burns’s quali- of a here, the assistance granted from unceasing cooperation immediate reasonably be character- could ty that arrest, the truthfulness his the moment *8 extraordinary. but anything as ized Cf. he information of the completeness and Pizano, F.3d 403 before testifying twice shared, his and Cir.2005) timely and (providing very” “very, constituting as grand jury “key serving as a wit- cooperation, truthful five three showings on strong giving co-conspirators, two against ness” warranting an 5Kl.l(a) factors and § instrumental could be testimony that departure. With extraordinary 60 laundering money from a seizing assets reasoning, we respect the all due debriefings scheme, submitting himself improper applied that the court conclude testimony re- grand jury providing and cir weight of determine tests to and member family a close both garding factors of the three for each cumstances put- and conspiracy, in the “major figure” upon. relied family at risk harm his himself and ting First, the district court ana- improperly tion and evidence the defendant has con- ”
lyzed the timeliness of Burns’s assistance
cerning the offense or offenses....
5Kl.l(a)
§
under
the fifth
factor. The
501.2(a)(5).
§
U.S.S.G.
This guidelines
court found the timeliness and complete-
section, and
statute,
the underlying
ness
Burns’s cooperation exceptional
3553(f),
§
permit
U.S.C.
relief from man-
because few defendants cooperated fully in
datory minimum sentences
long
so
as the
timely
a more
than
fashion
did
Al-
Burns.
provides
defendant
all in-
though few
may
defendants
participate
has,
formation that
regardless
he
of its
Burns,
earlier than did
if a
num-
sufficient
usefulness. Given
frequency
with
ber participate in a similarly timely man- which defendants provide honest and com-
ner,
participation
Burns’s
not be
could
plete
in compliance with
viewed as extraordinary.5 The court’s
501.2(a)(5)
§
or with
hope
premise, therefore, excluded Burns from government will enable an increased de-
the ranks of the most extraordinarily
parture by
3553(e)
making
§
5K1.1 or
timely defendants, while it remained silent
motion,
honesty
Burns’s
complete-
regarding how his individual
timeliness
ness of his
hardly
assistance can
be viewed
compares to that of the
coop-
remainder of
exceptional
as so
as to merit the reduction
defendants,
erating
resulting in an over-
he received.6 We
skeptical
are
whether
valuation of
Furthermore,
his timeliness.
complete truthfulness could ever
warrant
we have previously reversed extraordinary
departure of
magnitude
in a substan-
departures under conditions of comparable
tial-assistance context —even where the de-
timeliness where such
did not
timeliness
fendant could not have offered more com-
yield a discernibly beneficial result. See
plete or more honest assistance.
Saenz,
See
F.3d
1162-63 (noting that
Saenz,
(“we
428 F.3d at
respectfully
the timeliness of the defendant’s
coop-
full
disagree with the ...
eration
view that a
not,
itself,
strong
did
in and of
compel
anyone
showing in
plead
else to
guilty).
[timeliness and completeness]
makes reasonable an extraordinary depar-
For
reasons,
similar
we
agree
cannot
ture or reduction of
than
percent,
more
with the district court that the truthfulness
or
equivalent
than
eight
more
about
completeness
of Burns’s assistance
defendant,
offense levels for this
without
constitutes a circumstance warranting a 60
regard to the nature and
extent of
5Kl.l(a)(2).
under
assistance,
defendant’s
safety-valve
significance
provision
501.2(a)(5)
§of
assistance,
usefulness of
Sentencing
or
provides
danger
Guidelines
sentencing reduction
injury
for a
risk of
who,
suffered
defendant
the cooperat-
by the time of
defendant.”).
sentencing,
“has truthfully
Accordingly, although
provided to the Government all informa-
honesty
Burns’s
completeness
might
5. There is
reason
believe this is the case.
part
rule in
because to allow it would deter
The district court's conclusion fails to consid-
moving
from
for sentence re-
er the
unaddressed and uncon-
ductions in otherwise borderline assistance
n
tested
many
insistence that
coop-
Saenz,
defendants
cases.
765 of the nature and extent on the focuses departure favorable justify more help to discrete, con- actual, specific and activities govern- the that recommended than assistance, of the regardless stituting the its discre- abused ment, court the district the defendant’s available or undue opportunities the that factor by according tion more. ability provide to willingness and it did. that weight Cf. (1st Mills, 24, 34 329 F.3d United States supported also court The district Cir.2003) the district (upholding improper the basis of an on its activi- only the defendant’s recognition of fac “nature and extent” analysis of nature and extent focusing the ties on 5Kl.l(a)(3). that a test applied It § tor— assistance). the Among defendant’s the to the assis assistance Burns’s compared 5Kl.l(a) factors, “nature and extent” § the the defen believed speculatively it tance consider- and usefulness” “significance a test providing. Such capable of dant noteworthy for their particularly are ations in contraven disparities invites of conduct. spectrum aof broad inclusion stated Sentencing Guidelines’s to the tion 5K1.1, background § cmt. See U.S.S.G. dispari ‘reducing] unjustified “goal [of] their factors based on (isolating the two the even- reaching] toward thereby] ties^ breadth). Burns Accordingly, though even the neutrality are that handedness any de- grand juries, before two appeared sys any principled of distinguishing marks on this premised him granted to parture ” v. Peter justice.’ United of tem room for substan- must allow more factor Cir.2002) (quot 432, sen, 439 276 F.3d Saenz, assistance. See and extensive tial States, 518 U.S. Koon v. United any combi- (implying that F.3d at 1163 L.Ed.2d 116 S.Ct. as exam- set forth of listed activities nation test, (1996)). the district court’s Under substantial represent more ples would objectively iden providing two defendants cooperation the than assistance extensive different might well receive tical assistance nature and extent the present). While respec entirely on the departures based inconsiderable, was not assistance Burns’s Just conjectures. judge’s speculative tive reduction justify the qualitatively not did it under analysis proper “the awarded. 5Kl.l(a)(l) signifi on actual § focuses conclude, then, depar that the assistance, We re and usefulness cance justified by effort, which desire, exceeded that ture defendant’s gardless ” court did The district 1163-64, circumstances.7 Saenz, ‘faulty’ 428 F.3d at by, say, 5Kl.l(a)(3) the sentence merely reduce not under analysis proper government's conclusion, accorded the luctance we have con- reaching this 7. In court weight, for the gov- evaluation substantial to be without merit and find sidered citing justified ultimately its allegation that the district ernment's 1(a)(1) § 5K1. strength other than of factors gov- weight to the give failed sig- weigh the despite inclination its stated commentary to evaluation. ernment’s heavily in his weight" nificance of Burns’s requires that "substantial § 5K1.1 Furthermore, court's com- favor. government's evaluation given be fully it considered indicate that ments 5K1.1 of the assistance. U.S.S.G. extent government's make out of it could which government’s recommendation n. 3. The cmt. Haack, n. 2 at 1005 however, evaluation. dis- and it is the controlling, not Cf. recommen- (stating opaque responsibility to determine court's trict weight). We do Haack, less dations deserve F.3d at appropriate reduction. substantially at var- final consider stated that Although district court government recom- unexplained with per- iance any weight the 15 put on hard to "it's proof of discre- de facto to be mendations government],” [recommendation cent tionary abuse. its re- the court overcame conclude that we *10 766 percent,
or 30
percent.
but
60
This
tance motion did no more
permit
than
equated
not,
to a
say,
reduction of
three to
district court
sentence below
man
to
levels,
five offense
but ten levels. Given datory life
sentence
did not negate the
qualitative
the sizeable
difference between
§ 851 enhancement that
eligi
made Burns
the totality of the assistance provided by
Burns,
ble for a life sentence.
438 F.3d at
Burns
provided
Pizano,
and that
to 831. Accordingly, the district
prop
uphold a reduction
far
so
removed from erly departed from a presumptive life sen
presumptively
guidelines
reasonable
tence of 360 months.8
range would frustrate
goal
prevent-
our
vacated,
The sentence is
and the case is
ing departures
becoming
from
untethered
remanded to the district court for resen-
from the structure of the guidelines and
tencing consistent with the views set forth
would not
reflect
meaningful sense of
opinion.
proportionality. As was the case in Coyle,
there is also here “a good deal of room
BRIGHT,
Judge,
Circuit
with whom
between the government’s modest recom- BYE,
joins,
Circuit Judge,
dissenting in
mendation and the
gener-
district court’s
part
concurring
in part.
ous
recognize
this defendant’s
I concur in Judge Bye’s well-reasoned
assistance without at the same time skew-
and thoughtfully written
Judge
dissent.
degree
of reduction that must be
Bye has capably
majority’s
discredited the
granted to future
per-
defendants whose
statistically inaccurate
and potentially
formance on the continuum of substantial
harmful “extraordinary” standard for sub-
assistance deserves more credit
than
stantial
departures. Moreover,
Coyle,
[Burns’s].”
B. the dis- trict departure. I write separately Finally, reject we Burns’s conten to express my views rely because I on a on cross-appeal tion that the district court pragmatic more approach than statistical departed from wrong guidelines range. comparisons. For these additional rea- though Even Burns acknowledges that he sons, I dissent from the majority’s decision subject to a mandatory sentence, life to vacate the I sentence. concur in the he contends that government’s filing of majority’s decisions as to the calculation substantial assistance motion “waived” the Sentencing starting Guidelines mandatory point.9 sentence, life leaving the district court with a sentencing range of I. 188 to 235 months from which depart.
We do agree. not panel opinion As my colleagues today held, grant assis- more deference and discretion to prior 8. We panels note that have starting point). held that it Because the has was not erroneous for district courts to appealed use the 360-month starting point, starting points in of 360 excess months we do not appropriateness when address the of de- See, departing from e.g., life parting at, sentences. presumptive United from a life sentence Keller, 706, S (8th of, tates v. Cir.) or in excess 360 months. (470 months), denied, 1053, cert. 546 U.S. (2005); S.Ct. 163 L.Ed.2d 609 Although concur the majority's affir- Selby, Fed.Appx. States v. mance of a starting point 360-month Cir.2006) (unpublished curiam) (405 per sentence, Burns’s life I note that I believe this months); Jensen, see also United States v. appropriate measure only in cases where 360 (8th Cir.2007) F.3d (expressing months does not expec- exceed the actual life about adequacy doubt of a tancy 360-month of the defendant.
767
1029, 1031,
Dalton,
404 F.3d
v.
States
than to
district
attorneys
prosecuting
Cir.2005)
(8th
(reversing
seventy-five
a
is
That is what
country.
this
of
judges
departure);
case,
depar-
assistance
not the
in this
“extraordinary”
Haack,
997,
the district court.
403 F.3d
by
Burns
v.
cf.,
States
afforded
United
ture
(8th
denied,
“extraordi-
Cir.),
is itself
opinion
cert.
U.S.
majority
The
1005-06
stringent
(2005)
a
perpetuates
276,
it
nary”
because
163 L.Ed.2d
126 S.Ct.
not
departures
for
standard
departure
feckless
(vacating forty-three
Sentencing Guide-
months).
the Federal
in
based
seventy-eight
to
from 180 months
to micro-man-
efforts
This court’s
lines.
principle”'in
“proportionality,
court’s
The
sentencing function
the district
age
unjustifiéd
an
normative
practice creates
myth
aof
slippery surface
on the
rest
—the
at a two to four
departures
for
baseline
in
departures
of
circumscription
myth that
level,
impression of a
adjustment and the
sen-
unwarranted
will reduce
manner
this
Any
judge
ceiling
fifty percent.
tencing disparity.
that
discern
these cases would
aware of
rarely
a sentence
only
affirms
our court
II.
See, e.g., Uni
measures.
exceeding these
word
meaningless
a
“Extraordinary” is
Jensen,
493 F.3d
1001-02
v.
ed States
t
“ordinary.”
is
what
describes
one
unless
Cir.2007)
(8th
level down
(affirming six
to
rhetorically attempts
the court
Although
States v. Chris
United
departure);
ward
“ordinary” by reference
describing
avoid
Cir.2005) (en
(8th
tenson,
The subtext of the majority’s opinion
levels in.one section
demonstrates that the
a disdain for1
departures.12
downward
The Commission knew how proscribe adjust-
majority’s
for
depar ments,
disfavor
downward
but declined to do so in favor of the
tures
by
is demonstrated
their recitation of discretion and “latitude” owed the sentenc-
the word “extraordinary.” By their own ing judge for substantial
depar-
assistance
words, the majority considers the reduc
tures.
tion
beyond
of a sentence
govern
the
In
appeal,
majority rejects
ment’s recommendation
any
without
data
district court’s statement of reasons of-
to be an exceptional event.
fered for its sentencing decision but also
This disfavor for
departures
downward
denigrates
percentage methodology of-
cannot be
found
the Guidelines. There
prosecutor.
fered
It then adds to
is no mention in the Guidelines of a sub-
recipes by
citing
States v.
Jen-
stantial
being excep-
sen,
Cir.2007),
F.3d 997
a case
tional regardless of magnitude.
fact,
its
In
which advocates the use of Guideline
the Commission provides
sentencing
ranges over statistics as a proper measure
judges various avenues for
upward
both
for sentencing departures. Need I re-
downward
when warrant-
mark, that sort of measure finds no sup-
See,
ed.
e.g.,
5K2.0(a)(3)-(4)
§
U.S.S.G.
port
text of the Guidelines and was
(permitting departures for circumstances
argued by
not
parties
of the
not already adequately taken
consid-
into
briefs in this case.
Its introduction into
eration and characteristics
ordinarily
majority’s
analysis only adds confu-
relevant).
court,
It is this
not the Sen-
sion.
tencing Guidelines, that have rarified such
departures.
III.
majority
The
holds that
exceptional
Sentencing
nature of a
fifty
operate
over
Guidelines
as a
percent is
two,
sophisticated
based
three,
algorithmic-like
on the
puzzle
Guidelines’
or four
lawyers
offense level
adjustments
judges.
for mitigating or
Within such a sys-
tem,
aggravating
circumstances.
thing
preventing
That
Sen-
tencing
specifically
Commission
judges from becoming
delineated
automatons is their
role)
3B1.1 (aggravating
§ 3B1.2
judgment.
reason and
has
role)
(mitigating
offense level increases or
effectively decimated
authority
of a
Notably,
as
Judge Bye,
mentioned
variances at a rate of
while affirming
92.3%
line of cases
in the majority’s opinion
cited
downward variances at a rate of 15.8% could
begins to
previously
resemble that
described
hardly
treatment,
be viewed as uniform
by Judge Heaney, where he notes this court’s
contrary
3553(a)(6)'s
seems
to 18 U.S.C.
reversing
trend in
departures.
downward
eliminating
concern with
unwarranted dis-
See, e.g.,
Meyer,
United States v.
parity.")
(8th Cir.2006)
1000 n. 3
("Affirming upward
it
at the recommendation makes to
good judg-
rives
exercise that
judge to
oversight.
integrity
Is the
mathematical
the district court?
through its
ment
gov-
tainted when the
process
Guidelines
demand of us
do not
The Guidelines
the conversation envisioned
ernment stifles
its advice. The
application of
lifeless
such
implications
§in
5K1.1?
are the
What
written,
Guidelines,
a human
describe
*13
prosecutor
appellate
the
and this
court
prosecu-
process between
interactive
and
and
circumventing
cooperative
the-
discre-
sentencing
tor,
attorney,
and
defense
in the
tionary process described
Guide-
ef-
determining
mitigating
the
for
judge
advisory
should have
lines?
will become
assistance
What
fects substantial
First,
sentence.
treats a
upon
guidelines
appellate
a defendant’s
when an
court
government
forth
set
Guidelines
and nonexclusive fac-
list 6f non-exhaustive
mo-
a
may initiate
and a defendant like a
tors as
checklist
the conversa-
part
the first
tion. This is
graph?
on a line
are the dehu-
point
What
speaks. The Guide-
government
tion: the
manizing
mechanizing
effects of this court
and
a set of non-exclusive
lines then list
court
the function of a district court—a
court
factors
non-exhaustive
prose-
defendant and the
which meets the
making its evalua-
when
might consider
can,
neutrally
charged,
and
as
evalu-
cutor
§
In one of the
5K1.1.
tion. See U.S.S.G.
assistance should
mitigating
ate the
effects
factors,
recommend the
the Guidelines
a,sentence?
process
of sen-
have on
evaluation
government’s
court consider
be under-
tencing cannot and should not
U.S.S.G.
assistance rendered.
by computer!
taken
5Kl.l(a)(l).
applica-
Similarly,
one
note,
explain that
the Guidelines
tion
IV.
weight”
give
court should
“substantial
attempts
pre-
Contrary to its stated
of the extent
evaluation
majority’s
disparity,
unwarranted
vent
cmt. n. 3.
given.
Id. at
the assistance
actually
disparity. The
promotes
decision
speaks, the Guide-
After the
explains
partic-
that Burns’s
judge to
“latitude” to the district
give
lines
truthful
although completely
and
ipation,
judgment about
exercise a reasoned
not be
timely, could
viewed
exceptionally
should
effects the assistance
mitigating
other de-
extraordinary because some
as
sentence.
have on a defendant’s
fendants,
participated
none of whom
dynamic process,
envision
Guidelines
or
conspiracy,
frequently
also
drug
instant
weighs information
the district court
which
one hundred
provided
sometimes
impact on a
carefully considers its
similarly timely
in a
truthful
information
devastating sen-
to serve a
person about
manner.
tence.
nonsensically creates a
rationale
This
here,
happens,
But what
when
departures not based
moving target for
ar-
appears
government’s recommendation
by the
or envisioned
text
the Guidelines’
pro-
or will not
bitrary
it cannot
because
in-
dictate for
“individual”
for how it ar- Guidelines’
explanation
or
vide a basis
judge
to a com-
role of a federal
in Section VI. of this dissent
I write further
inability
"operator of a
government's
or
clerk or an
refusal
mon law
code
about
civil
by providing by legislators”)
basis
designed
assist the district
and built
machine
departure.
for its recommended
reasons
Henry Merryman, The Civil
(quoting John
Sys-
Legal
to the
Introduction
Law Tradition:
Gertner,
Omnipotence to
Nancy
From
14. See
America,
Europe
Latin
tem Western
Sentencing,
Judges
American
Impotence:
ed.1985)).
(2d
(2007) (comparing
J.Crim. L. 523
4 Ohio St.
5K1.1,
quiry. See
cmt.
pole,
speak,
U.S.S.G.
back-
so to
ineligible
are often
for an
Moreover,
ground.
improperly
it
dilutes
“exceptional” departure
they have
because
timeliness,
weight
completeness,
less information to sell. See United States
truthfulness,
reliability
For
Jones,
factors.
Cir.
example,
defendants,
imagine three
con- 1998)
J.,
(Bright,
dissenting); see also Ma-
offense,
victed of the same
in the same
Limbert,
ria
Problems Associated with
sentencing range,
separately
but for
com- Prosecutorial
Filing
Control Over
Sub-
Suppose
mitted crimes.
that defendant
stantial
Propos-
Assistance Motions and a
number one
assists the
in a
al
a Substantial Assistance Pre-Sen-
timely manner and is one hundred percent
(2001)
tence Hearing,
Legis.
27 J.
thirty
truthful. He
receives
de-
(“Since drug organizations are now so
parture.
day,
The next
defendant number
diverse,
large and
one can be involved.as
*14
two assists
in the same
unloader,
seller, mule,
courier,
a
a
or a
timely manner and is also one hundred
they
and thus
are insulated and do not
percent
truthful.
He will receive
a
are,
know who
principals
very
so
often
twenty percent departure because his
the smaller
nothing
they
dealers have
timeliness and
excep-
truthfulness are less
really
can
government.”)
offer the
prior
tional
virtue of the
participation of
Moreover,
among
“[e]ven
defendants
defendant number one.
day,
On the third
equal
with
information,
access to useful
defendant
participates
number three also
availability of a substantial assistance de-
in the
timely
same
manner and is one
parture may hinge primarily on the timing
percent
hundred
truthful. Again, under
of their arrests
plea bargains.
Those
the majority’s theory, defendant number
apprehended early in an investigation can
likely only
three is
receive
ten
provide
by informing
assistance
on their
departure because his identical timeliness
associates, while the associates arrested
and truthfulness have
comparably
become
likely
later are
nothing
to add
new to the
less remarkable. The Sentencing Guide-
authorities’ knowledge.” Gerald W. Hea-
lines do not require such an absurd result.
ney,
Reality
The
Guidelines Sentencing:
How can one be more than one hundred
of
No End
Disparity,
To
truthful?
Am.Crim. L.Rev.
What kind of truthful-
(1991).
161,199
majority
before,
ness would the
As I have
excep-
contend is
said
our
system
tional?
justice
of
should not condone such
topsy-turvy results.
majority
rejects
The
also
depar-
Burns’s
ture because the district court factored
V.
capability
Burns’s
of assistance when eval-
majority
repeatedly bases its “ex-
uating the nature and extent of his assis-
5Kl.l(a)(3).
traordinary” decision
reducing “unjusti-
on
tance
standard,
under
This
First,
fied sentencing disparities.”15
applied by
majority,
as
operates to
Judge Bye points
make substantial
departures
opinion,
assistance
out
his
too
and as
heavily
biggest
above,
favored for the
I have
criminals.
illustrated
opin-
at
Those
the bottom of the crime totem
today may actually
ion
serve to increase
15. The
also maintains that it is at-
disparity.
reduction in
See id. at 1162.
In
tempting
event,
goal
to further the
preventing
departures
also become "unteth-
departures
becoming
from
“untethered" from
ered” from the
appellate
Guidelines when
Guidelines,
Saenz,
citing
judges
difference in sentence attributable to the other commentators have observed that jurisdiction in which a case arose in- Sentencing simply Guidelines do not creased to 12.94months. disparity, Thus, create less but more. ... court in which a [T]he case was majority’s opinion slippery rests on the heard accounted for 1.81 % of the total myth. myth surface of a pre-Guide- variation in sentences in the reducing the number and size of downward period. lines It accounted for 5.64% of departures, disparity improve. will this variation in post-Guidelines pe- means disparity to eliminate or reduce has terms, temporal riod. In expected far Sentencing thus eluded the Commis- *16 per variation case was 7.70 sion, months be- sentencing judges, prosecutors, and fore the Guidelines and 17.97 months apparently escape continues to the reason after. today.18 of this court of appeals ... Geographic disparity more than tri- VI.
pled after implementation of the Guide- lines. far, my Thus criticism has focused on majority’s opinion; it is not alone re- ... [although blacks constitute 48% of sponsible for the outcome in this case. A the offenders appear qualify who to for a prosecutor court, is an officer re- mandatory firearms enhancement in sponsible justice, for administering but cases, drug they constitute 64% of the also for assisting judge. the trial prosecu- offenders who receive it .... process envisioned the Guidelines tors seek depar- “substantial assistance” 5K1.1, as in described above Section tures for blacks and Latinos less often III., calls on prosecutor satisfy this than for whites.... When, here, obligation. govern- as
ment refuses or is provide unable to sonable, generate 18. The Guidelines criticism neu- and effective. It is time to check the observers, including many tral and informed power prosecutors immense and restore sentencing judges. federal sentencing judges. After than more federal before, I As have said turmoil, twenty years judicial anyone it time listening?" is for "Is there out Unit Alatorre, improved sentencing procedure federal ed fair, Cir.2000) J., that will make criminal (Bright, concurring). rea- recommendation, you agree it THE ... COURT: Would for its court reasons ability to eval- except very for those rare situa- hampers the district and disre- the assistance rendered uate tions where a defendant comes forward- the court. gards its duties assist cooperates before he’s arrested that cooperated in this defendant about as case,’ describing the after In the instant timely a manner as could? Is that a one prosecutor provided, Burns fair statement? of the recommended on behalf In this case with this percent [ANSWER]: downward a fifteen following defendant, arrested, col- assistance. soon as he was as ’ judge prosecutor loquy between everything; complete he told he was ensued: truthful, yes. Those are the facts as I the defen-
THE COURT: How did understand it. timeliness affect the 15 dant’s my THE question COURT: And recommendation? 20, 30, 40, 50, why justify doesn’t It was one of—those
[ANSWER]: . or 60 recommendation from through in the factors that all went were your office? in I the term would be guess mix. Looking at that individ- [ANSWER]: totality. factor, your question, ual can’t answer you position THE COURT: Are overall, everything that the defen- but if defendant was as why, to tell me did, dant the defendant this case as- was, you’re timely you indicate he individ- sisted with the indictment one only recommending percent? ual at this time and all these other facts The overall substan- [ANSWER]: presented. that we pro- he cooperation tial' —or the overall THE Did the defendant COURT:
vided, attorney decided that the U.S. you all the information he knew provide these —under the 5K factors totality n about in terms of substantial assistance? they up would come percentage From what I know from [ANSWER]: with. AUSA], yes. [the try and see if we THE COURT: Let’s Why THE doesn’t that enti- COURT: you in a this. Are could short-circuit greater defendant to a recom- tle the specif- to tell me how position percent? mendation than 15 5Kl.l(a)(l) (5) factors affect- *17 through ic your I can’t answer [ANSWER]: percent ed the 15 recommendation? how to answer question. don’t know give you per- I can’t [ANSWER]: question, Judge. it of what each one and how was centage clearly gov- shows that the excerpt' This 15, no, looking in at all of arrived at but process by factors, stifled the Guidelines the U.S. ernment the facts with those court in attorney percent. inability refusal or to assist the recommended its govern- The making its determination. Well, example, THE COURT: questions to the court’s ment’s answers why^ exceptionally the defendant was —-if And, why isn’t he were worthless! timely cooperation, during in his court, govern- or a 50 getting appeal a 25 in before this its misleading recommendation? astounding asserts an ment partic- to in defense of its refusal response gov- The process. in ipate the Guidelines case, Each is a case [ANSWER]: in- “Subsequent to each ernment states: put know how to but there are—-I don’t [sic], government quiry of the count on it. percentage trary Attorney. whim of process privi- asserted the deliberative the United States provide any Br. at 4. I Failure to assistance to the lege.” Appellant’s Where? making in in its sentencing transcript have searched the evaluation leaves the any un- privilege. vain for mention of such district court with little choice but to dergo its own evaluation of the assistance brief, government, also criti- its provided and reach its own conclusion. It inquiring cizes the district court for as to tremendously disingenuous gov- is how it arrived at its recommendation of ernment to chastise the district court’s Br. at 27- percent. Appellant’s fifteen See analysis government when the refuses to questions It calls the district engage Perhaps govern- in its own. if the “an attempt infringe to on the executive court, trial ment were less evasive to the process sepa- branch’s deliberative and the government would be more satisfied powers ration of doctrine.”19 In support with that court’s decisions. of its incredible assertion that it need not court, provide explanation further to the it brief, appellate government In its Moeller, cites United States v. long attempts give last a reason for its (8th Cir.2004). Moeller concerned the recommendation: “the modest nature of government’s to file a decision Appellant’s defendant’s assistance.” Br. at 3553(e) motion, § permits which the court government 17. The never used this de- statutory term, “modest,” sentence defendant below a scriptive during the sen- Here, however, minimum. govern- tencing hearing. contrary, To during departure. § ment recommended a 5K1.1 sentencing, prosecutor described Although “consistent,” there is some indication that the “key,” Burns’s assistance as “truthful,” government may in Moeller have been “complete,” “timely.” eva- Nev- explained sive when it government’s its decision not to er “modest.” The late as- 3553(e) motion, 712-13, § file a see id. at sertion that defendant’s assistance was Moeller proposition does not stand for the lacks support modest the record. that “We looked at the factors” or “I don’t (non-exclu- possible I can divine several are responses know” sufficient to the court sive) explanations prosecution’s for the 3553(e) once the files mo- One, prosecutor conduct this case. tion, this case 5K1.1 recommends truly didn’t superiors know how his ar- departure. rived at the superi- recommendation. His argues further ors directed him to per- recommend fifteen “the divulge refusal to fur- inquire cent and he declined to further. Second, ther information not a prosecutor truly reason for the didn’t know disregard district court govern- for the basis recommendation because ment’s recommendation.” arbitrary.20 This criticism it was possibility Another of the district court can prosecutor truly be described that the believed that the as hubris. The district court is not a government required is not to advise the *18 may rubber stamp for what be an arbi- court.21 Attorney The United States prosecutor’s process suggests 19. The prosecutors mental is of no observation that the in concern, good whether or bad. It is the rea- engage guesswork, that district in not reason- sons, facts, sentencing and standards for ing, making recommendations for a sen- should be disclosed to the district court. tencing reduction. judge during 20. The district commented sen- explanation likely, 21.This is more consider- tencing that is not the this first time the ing government's position the to this court government has refused to disclose to him process privilege.” about “deliberative its how it arrives at its recommendation. This counsel, “rec- fense and the court. These individ- the the assistants view command, to the court as ommendation” together pro- uals to effectuate a operate knowledge that of part because process by cess: a which a reasonable and any depar- likely reverse court will most may effective sentence be determined. Al- prose- that exceed the advice tures though judge makes the ultimate conclu- . cutor. sion, upheld sentence should be probably the explanation, The final judge where the follows the correct pro- one, my egre- view the most likely if trial example, judge cess. For the fails knew its reasons gious. government The to consider certain factors or considers recommendation, withheld the but impermissi- factors that have been deemed sentencing judge the those reasons from ble, process is tainted and the sentence strategy sandbag in order to as a matter of likely way, will be reversed. In this our judge’s opinion district reasoned judicial system process honors and meth- call a “late foul” on prosecutor allow than od—sometimes even more the result. that it government believes appeal. The can circumvent the government in at least the North- judge and then come refusing to assist appears ern District of Iowa to be engag- of the district to this court with criticism practice refusing in the routine analysis. judge’s give reasons or a basis for its recom- join will not cannot and departure.22 by-product mended conduct. It support prosecutorial of such today majority’s may affirmance serve judicial system to the and a is an affront perpetuate government’s practice judge, to mention conscientious proper process by and interfere with the fairly. treating the defendant which we sentence criminal defendants. . VII. The Guidelines state that the court will give weight” “govern- “substantial to the opinion of this critical- While Section VI. extent of the de- ment’s evaluation of the analyzes prosecution particu- for its ly assistance, particularly fendant’s where case, sepa- in this I write this lar conduct why, and value of the assistance are rate section to describe as matter of the extent law, 5K1.1, procedure utilized here must not difficult to ascertain.” U.S.S.G. continue. cmt. n. 3. This note reaffirms that 5K1.1 (not direct) government to assist asks judicial function of our
The successful (not evaluation a conclu- the court with an largely procedure. relies on Both system sion). pro- Yet the refuses to conceptions justice and ancient modern concept process, are founded on the of due More- vide such assistance to the court. essentially procedure. which is prosecutors, both as officers over federal justice, and administrators of of the court exception. current Sentencing is no Our duty candor and assistance to the have sentencing system requires collab- federal Yet the refuses to en- office, court. probation oration between enforcement, office, in either candor or assistance. gage law de- prosecutor’s See, Saenz, depart for a e.g., should downward defendant's United States assistance, (N.D.Iowa 2006) explication with no F.Supp.2d recommendations, accom- (referring practice by for such to “the routine the Unit- basis *19 court Attorney's panied by unfounded assertions that the ed Office in this District of States give sub- making ridiculously stingy must then such recommendations recommendations deference”). concerning stantial the extent to which court Saenz, recognized very In this court that mented on this concern as it relates although give court district must our review: weight government’s substantial to the recognize single While we that a recommended evaluation of the extent Attorney brings to bear assistance, it similarly does not owe such perspective broad of one who has evalu- deference to the “valuation” afforded cooperating ated numerous defendants that assistance. at See 428 F.3d judicial (indeed, within a district at least This stated: are persuad- court “We less tenure, during comparable a broader the court give ed must perspective single judge than a to the weight government’s valuation of district), in a multi-judge we have no assistance, particularly where the assurance that Attorneys United States government adequately explain does not apply districts consistent different reasoning.” (emphasis origi- its Id. methodologies valuing substantial nal). Haack, Similarly, in this court not- arriving sentencing assistance and at ed: recommendations. It is obvious that the sentencing judge Saenz, added). at (emphasis 428 F.3d government’s was frustrated Similarly, the district court has no assur- per- identical recommendations of ten cent in each of these ance that Attorneys three United States have expressed dissimilar cases. We similar applied methodology consistent a—or concerns to the Assistant United States methodology at all. good What is the Attorney argued who the cases. We government’s recommendation to the dis- difficulty discerning had how three such trict if government cannot back dissimilar cases could all result in the Moreover, it up? without guideposts identical departure. recommendation for or explanations, defense counsel has no A recommendation government idea reasonably how to advise the client of adequately explain that does not its rea- potential departure. soning weight, is entitled to less in the Finally, government’s silence im- view, fully explained than a more pedes accountability judicial review. recommendation. How can the properly district court ever 2; Pizano, 1005 n. see also government’s evaluate the recommenda- (“serious F.3d at 996 consideration needs it up by tion when is backed nothing? given be government’s recommenda- How can this court review the district tion, certainly but that it is not control- government’s court’s consideration of the Thus, ling”). precedent this court’s evaluation when from the record we cannot the text of the Guidelines govern- belie the even discern on what government basis the position ment’s it need explain, made its recommendation? Because this asked, when how it arrived at its recom- court often reverses downward departures mendation. appeal, on there is little or no accountabili- Moreover, government’s refusal is ty for the respect. this problematic in large part it because is government can continue to provide unex- singularly court, unhelpful to the district plained recommendations, which the dis- court, this sentencing process. and the trict difficulty court will then have assess- silence creates a sen- ing, appeal, will and this tencing process defendants, through which counsel, court will reverse. This cat courts, their and mouse and this game judicial resources; court must any signposts traverse without is waste of our Indeed, guides. upside-down this court has com- process certainly *20 to 144 parture and reduce his sentence perhaps captured be one. It can strange (twelve Anything musical years). very of the months That is still a by the words (cid:127) Goes: long sentence. today mad gone The world has I dissent. today, good’s
And bad today, white BYE, And black’s Judge, whom Circuit with today, BRIGHT, day’s night Judge, joins, concurring And Circuit dissenting part.
in in part and Anything goes. holds the district court’s Goes, Porter, Anything in Anything Cole sixty percent downward (1934). Goes excessive and unreasonable under intelligence, integrity, presented by circumstances this case. Persons of on the reasonable- good disagree faith can appropriately Because the district sentence, value or extent of of a ness discretion, I re- exercised its assistance, departure. of a degree or the majority’s from the de- spectfully dissent as to my disagreement My colleagues cision to vacate the sentence and remand sentence, and this of a the reasonableness I resentencing. join majority’s for with the district disagreement court’s join in respects. in other I also opinion effectively should not departure, Bright’s Judge dissent. disengage from prosecutors incentivize sentencing process the district I court- Secrecy place has no court. review the extent of a substantial We for the proper it would be room. believe an downward for make a new government on remand to of discretion. United States v. abuse court, pro- recommendation to the district Cir.2005). (8th Coyle, 429 F.3d explanation a candid viding judge with “[Tjhere bright percentage is no line employed reaching methodology of the mathematical formula to determine when The district court the recommendation. of a substantial assistance mo the extent that evaluation when should then consider unreasonable.” tion becomes re-sentencing Burns. F.3d Pepper,
States v. VIII. Cir.2007) II). In an to di (Pepper effort unreasonable, we have broad vine what is to sentence power Who should have the must exist ly proportionality stated “some prosecutor, kind? The who cases opinion appro- an unreasoned for the and the has the defendant’s assistance between court, who has nev- priate sentence? This departure; example, extent of the given er met the defendant and has been sup be extraordinary departure must a limited record by extraordinary circumstances.” ported position pros- supports but often Saenz, (citing Id. United States ecutor? (8th Cir.2005) (Saenz /)). 1159, 1162-65 however, recognize the discretion of of premise,
We should This unremarkable give thoughtful consid- judges who to district courts fers scant assistance sentence, subject eration to a defendant’s imposing charged responsibility with the to review for abuse of discretion. proportionality sentences. For reasonable engage must in a meaning, to have we us,
In
I would affirm the
the case before
“extraordinary
substantive discussion
district court to
reasoned decision of the
circum-
“extraordinary
departures”
de-
grant Burns a substantial assistance
*21
Along
risprudence,
stances.”
owing
apparent legitimacy
substantial-assis-
its
majority,
tance-bell-curve described
having
repeated.
been oft
we need to determine what reductions in
ably
As
recounted
Judge
Chief
Ben-
ranging
per-
from 0 to 100
sentences —
Saenz,
nett23 in United States v.
429
ordinary
cent—are
and which are extraor-
(N.D.Iowa
(Saenz
2006)
F.Supp.2d 1081
dinary.
establishing
ordinary
After
what
II),
genesis
for the
in
rule lies
dicta
are,
extraordinary
reductions
we can found in Enriquez.
begin
quality
quantity
to measure the
comment in Enriquez upon
[T]he
which
necessary
of assistance
to obtain one or
the Circuit Court relied in Dalton and
the other.
Saenz was not made in the context of a
determination of whether
a district
A
downward
for substan-
Despite
eschewing
bright
cases
a
line
tial assistance was “unreasonable” or
rule,
held,
we have
without explanation,
Instead,
“extraordinary.”
Enriquez,
in
or
in
range
variances
argued
the defendant
“that he should be
fifty percent
extraordinary.
are
See
plea
allowed to withdraw his
because the
Meyer,
998,
United
v.
States
452 F.3d
keep
failed to
an alleged
(8th Cir.2006) (holding fifty percent
1001
a
promise to recommend
above-average
extraordinary);
variance
United States v.
sentence reduction for his wife.” Enri-
(8th
1317,
Bryant, 446 F.3d
1319-20
Cir.
quez, 205
F.3d
348. The Circuit
2006) (holding
fifty-seven percent
vari
Court concluded that the district court
extraordinary);
ance
United States v. Lar
had not erred in
finding
there was
rabee,
890,
(8th Cir.2006)
436 F.3d
892-93
promise.
Only
no such
Id.
then did the
fifty-four
(holding
percent variance ex
comment,
Circuit Court
apparently as
traordinary);
Kendall,
United States v.
that,
an afterthought,
practical
“as
(8th Cir.2006)
782,
446 F.3d
(holding a
matter,
Enriquez actually
Mrs.
did re-
fifty percent departure
extraordinary);
extraordinary
ceive an
sentence reduc-
I,
Saenz
(noting
fifty
As the Posb-Booker Pro- Instead, issue. once the threshold fact ject proves, the median sentence reduction made, finding is defendant’s base offense nearly fifty percent. nationwide is In oth- by level is a preset decreased increased words, along represent- er the bell curve number of by offense levels as dictated ing possible departures, range in the those Commission. fifty percent ordinary, are with extraor- 5K1.1, § Conversely, under the sentenc- dinary departures falling somewhere ing required court is to rate the value aof the far left and far right ordinary. By defendant’s substantial along assistance defining extraordinarily high departures low, extraordinarily ordinary, continuum of two, exceeding as those three or four of- extraordinarily high, and using non-ex- levels, arbitrarily fense the court moves factors, clusive list of which include the ordinary to the left of the bell curve. Ad- usefulness, truthfulness, significance, com- two, justments of three and four levels nature, extent, pleteness, reliability, timeli- approximate sentencing reductions ness, etc., of a defendant’s assistance. The twenty-four, thirty-four, forty-two and per- district court then an appropriate awards cent, respectively. Applying majori- ranging reduction in sentence from 0 to test, ty’s newly-minted extraordinary de- percent. process The evaluative antic- partures now fall on either twenty- side of ipated by 5K1.1 does not lend itself to forty-two percent, four with the same limitations which constrain dis- departures exceeding forty-two percent trict courts applying dealing sections with displacing fifty percent departures ipso as mitigating and aggravating circumstances. extraordinary. By facto reasoning, true, Were this not the Commission would departures extraordinarily deemed low na- imposed upon have a similar framework ordinary court, tionwide are in our departures. substantial assistance It departures lower than the national median easily could ordinary have defined assis- extraordinarily high. are This skewed deserving tance as reductions of between ordinary directly view what is contra- levels, two and four offense with extraordi- Special dicted the data from the Posb- nary garnering preset assistance minimum Coding Project, Booker but is consistent Instead, and maximum reductions. with our court’s tendency demonstrated Commission, closely recognizing scrutinize range reductions in sentences broad readily affirming quality quantity while in the possible increases. See McDonald, 948, assistance, United States v. 461 F.3d left it to district sixty percent departure was rea- and de- the assistance to evaluate courts By im- reduction. sonable. appropriate termine construct on substantial the same posing My depar of the district court’s review mitigat- applies assistance guided by our decisions United ture is the ma- adjustments, aggravating ing Haack, v. 403 F.3d States of district the discretion
jority restricts
(8th
denied,
Cir.), cert.
546 U.S.
authorized nor
in a manner neither
courts
(2005),
276,
fendants provided “every single found Burns bit of information he knew.” Tr. Sent. 13-14.
Conversely, nothing there is in the record suggesting everything Burns did not do he requested
could do or that was and asked of him. McAULEY; James Kenneth Terrence McAuley; Frances Matthew Redden found also Burns’s McAuley; McAuley; Aidan Paul cooperation very significant very both McAuley; Mary Kathleen Anne Fran- useful; cooperate Burns continued to Barzee, Appellants, ces through sentencing, provided key grand jury testimony leading to the indictment defendant, guilty plea of another COMPANY; FEDERAL INSURANCE offered detailed information about'several Group Compa- Chubb of Insurance groups manufacturing who were metham- nies; Employees Anheuser-Busch phetamine. nothing find unreasonable Trust; Benefits Anheuser-Busch about the district court’s evaluation of the *27 Companies, Inc., Appellees. significance and usefulness of Burns’s co- operation and the role it played support No. 06-3757. sixty percent of the court’s departure. Appeals, States Court of majority’s concern about the court’s Eighth Circuit. departure leaves too little depar- room for tures of greater magnitude is belied May Submitted: 2007. availability departures sixty excess of Aug. Filed: percent. Though rarely traversed our circuit, range between 60 percent represents nearly
and 100 one half range of the total of possible departures providing available defendants substan-