United States v. Burns

Jennings, v. States

Cir.2008) a motor (fleeing operating “in a manner that creates a sub-

vehicle bodily injury to another

stantial risk with, Spells, 537 F.3d at 752

person”),

(knowingly fleeing being after ordered

stop). the district court is judgment

affirmed. America,

UNITED STATES

Appellant,

v. Ray BURNS, Appellee.

Travis America, Appellee.

United States Ray Burns, Appellant.

Travis 04-2901,

Nos. 04-2933. of Appeals,

United States Court

Eighth Circuit. Sept.

Submitted: 2008. Aug.

Filed: Wehde, AUSA, penalty by 21 argued, provided Sioux enhanced U.S.C. Shawn IA, appellant. enhancement, for City, 851. Absent sentencing range Burns faced a Rhinehart, argued, City, Sioux R. Scott imprisonment. 235 months’ for return IA, appellee. cooperation, government Burns’s LOKEN, BRIGHT, Judge, Before Chief agreed to move for a downward RILEY, WOLLMAN, MURPHY, BYE, Sentencing under United States Guidelines MELLOY, SMITH, COLLOTON, 3553(e).1 § 5K1.1 and 18 U.S.C. GRUENDER, BENTON, and government The advised the district SHEPHERD, Judges, En Banc. Circuit court2 Burns had imme- diately admitted his involvement in the WOLLMAN, Judge. Circuit conspiracy provided and detailed informa- court, again case is once before our This during separate debriefing tion two ses- by virtue of a remand from the this time regarding groups sions the several for reconsideration of our Supreme Court manufacturing were involved in metham- opinion en banc of Gall v. United phetamine. Burns twice testified before States, 128 S.Ct. grand jury provided and information in (2007). Burns v. United L.Ed.2d 445 See — ongoing investigations. coop- several His U.S. —, government eration assisted the in estab- (2008). Having completed L.Ed.2d 804 lishing drug quantity against evidence one reconsideration, we now affirm. our

defendant, Messerly, Brad and he was a I. DeFoe, key witness which against Victor government enabled the an in- obtain Background against plea dictment and secure a forth in initial review of this As set our guilty government from DeFoe. The char- Burns, case, cooperation timely, acterized Burns’s as (8th Cir.2006) (Bums I), Ray Travis truthful, complete, and recommended Burns indicted on one count of con was percent a 15 reduction from the otherwise fifty to manufacture and distribute spiracy I, applicable 360-month sentence. Bums methamphetamine in grams or more of 438 F.3d at 827-28. 841(a)(1), §§ violation of U.S.C. 841(b)(1)(A), rejected govern- The subject Burns district and 846. was mandatory imposed to a life sentence under the ment’s recommendation and truthfulness, (2) provides: completeness, reli- 1. Section 5K1.1 of the Guidelines ability testimony information or Upon government stating motion of the defendant; provided provided by the the defendant has substantial as- investigation prosecution (3) in the or sistance the nature and extent of the defendant’s person assistance; of another offense, who has committed an may depart the court from suffered, (4) any injury any danger or guidelines. injury risk of defendant or his (a) appropriate reduction be de- shall assistance; family resulting his from by the court for reasons stated termined (5) the timeliness of the defendant’s assis- to, include, but are not limited tance. following: consideration of the (1) signifi- of the the court’s evaluation Bennett, 2. The Honorable Mark W. then Chief cance and of the defendant’s usefulness Judge, Court for the United States District assistance, taking into consideration the Northern District of Iowa. government’s evaluation of the assis- rendered; tance very imprisonment, highly 144 months’ defendant scores on the sentence of percent reflected a 60 prong. which third sentence. from the 360-month very highly Defendant scores on the sec- length the district court’s We set forth truthfulness, prong, completeness, ond of its considerations explanation reliability information. § 5K1.1 factors: There’s no information that the defen- months as a start- going I’m to use 360 any- dant’s substantial assistance was I specifically In this case find ing point. thing percent but a hundred complete, factors, the 5K1.1 factor number truthful, percent hundred and a hundred the defendant’s assis- the timeliness of percent reliable. So Mr. Burns scores tance, exceptionally the defendant was very highly prong. on the second My understanding timely in this case. prong is the On—the first Court’s evalu- cooperating he is he started as soon as significance ation of and usefulness of exceptional To me that’s was arrested. taking the defendant’s usefulness into timeliness. While some defendants government’s consideration evalua- early, virtually that no defendants start tion of the assistance rendered. Here the start earlier than that.... government has indicated that the de- excep- So I find that his timeliness was fendant testified twice front of the apparently cooperat- started tional and grand jury, drug that he established the impact before he was advised of the quantity on one defendant and led to the Sentencing States Guide- guilty plea indictment and of another lines, anything before he knew about I defendant. find that that was both guidelines might affect his sen- how very significant very useful. tence, before he exercised his Sixth govern- Now for some reason which the right pres- Amendment to have counsel disclose, they only ment refuses to rec- ent. I think in this case the fifth So percent, they ommend 15 but won’t tell weighs very heavily factor in favor of why they only per- me recommend 15 ... the defendant government cent. And the refuses to any injury not apply, Number does indicate how one of the five 5K1.1 danger suffered or of risk I because percent factors affect the 15 recommen- haven’t heard about that. anything dation. Number the nature and extent of the So while I do take into consideration the assistance, defendant’s in this case based government’s signifi- evaluation of the representations on the of the assistant usefulness, cance and it’s put hard to I attorney, U.S. find that the defendant any weight percent on the 15 recommen- every provided single bit of information government dation because the refuses knew, you so he couldn’t—the extent of they how disclose arrive that rec- the defendant’s assistance could not be ommendation. greater in that all provided the sense he looking And back on the other sentenc- of the information he knew. had, ings that I’ve that recommendation Now, it’s true some defendants my substantially is in view lower greater have information which leads to government other recommendations the people. indictments of But I more don’t similarly has made for situated defen- think I necessarily that’s the test. think dants. provide the test is did the defendant that, Having indepen- said all I have the everything

substantial assistance on he knew, right this case he did. So the dent under 5K1.1 to evaluate the (8th Cir.2005)). on the 5K1 F.3d We also assistance based substantial “[bjecause I see it. departures factors as noted and re- fact based on 5K1.1 and into consideration the ductions Having taken very very, scores contextually the defendant appear within scheme de- factor, the third highly on the second signed ‘to reduce unwarranted sentence factor, factor, I’m going fifth and the among ... disparities similar defendants’ sentence sub- reduce the defendant’s Sentencing and because the Commission’s government stantially beyond what adjustments sentence for mitigating or That ought in this case. recommends aggravating factors fall close to the rec- government surprise come as no ‘[ajn guidelines, extraordinary ommended ten-year history I because supported by reduction must be extraordi- just I doing that because evaluate ” Id. at 761 (quoting nary circumstances.’ differently factors than-than how five Saenz, 428 F.3d at 1162). does, govern- and the government holding We also referred to earlier they how do it ment refuses to disclose “ ‘the farther the district court varies to me. presumptively guide- from the reasonable 12-15). Id. at 828-29 Tr. at (quoting Sent. range, compelling justi- lines the more the sentence, government appealed ” Id. at 761 ... (quoting fication must be.’ contending ig- that the district court had McMannus, 436 F.3d percent of a 15 nored its recommendation (8th Cir.2006)). 874 We concluded our percent and that the 60 reduc- summary previous holdings by say- of our of the assistance tion was excessive sum, ing, extraordinary “In our reduc- provided. cross-appeal- had Burns Burns tion/extraordinary circumstances formula- ed, that the district court contending requires strength tion circumstances of a departed from the 188 to 235- should proportional to the extent of the deviation rather than from guideline range month by guide- from reductions envisioned life presumptive the 360-month sentence. [Ujnder propor- lines’s structure.... this Id. 829. standard, tionality Burns’s ten-level and 60 this court affirmed panel A divided percent reduction exceeds the bounds of departure by awarded the downward reasonableness.” Id. at 761-62. unanimously district court and affirmed on to that acknowledge We then went the district court’s use of the 360-month presumptive departure life sentence as its degree appropriate re- point. Id. duction cannot be calculated with mathe- precision matical and that there is a government’s petition granted

We range of reasonableness available rehearing for en and vacated the bane any given district court in case.... It rehearing, we reversed panel opinion. On may placed great be that we have too an departure the district court’s and affirmed Burns, numerical or emphasis percentage on starting point. (8th Cir.2007) (en banc) conducting lines in the reasonableness II). (Burns inquiry respect re- may .... It ductions also be the use reversing departure, In we noted “extraordinary” suggests of the term “[djepartures 5K1.1 and re dichotomy. applied false The term as not be ductions under should suggest read to reductions should of the advi untethered from structure dichotomy a true in which the location of sory guidelines.” Burns Saenz, v. demarcating United States imaginary an line “ordi- (quoting “extraordinary” may be di- II. nary” from inquiry. Rather vined a statistical The Court’s Decision Gall a term of art with representing unique legal significance, the “extraordi- Gall, In accurately nary” serves as a label more L.Ed.2d Court reversed depar- characterization of convenient Gall, holding our United States particu- tures that we have considered (8th Cir.2006). so, doing F.3d 884 In to the two to four larly large relative jettisoned the showing propor- adjustments generally envi- offense level tionality extraordinary circumstances sioned the structure sentenc- required that we Bums II and our guidelines mitigating aggrava- justify other decisions to from ting circumstances. appropriate guidelines range: at 762. reviewing of a reasonableness range, sentence outside the Guidelines explained aggregate We also statis- courts therefore take the the sole desideratum in tics should not be degree of variance into account and con- weighing strength circumstances sider the extent of a deviation from the level, justifying given departure id. at however, reject, Guidelines. ap- We 3,n. by percent- but evaluation pellate rule that requires “extraordi- ages may still at times be useful. We also nary” justify circumstances to a sen- extraordinary noted that circumstances tence outside the range. Guidelines We infrequently are found and that the cir- reject the rigid also use of a mathemati- cumstances that we had found to have a cal formula that percentage uses the of a strength to the proportional magnitude of departure as the standard for determin- departure granted to Burns could not justifications strength of the re- reasonably have been considered as other quired specific for a sentence. extraordinary. Id. at 763. We ob- requirement served that the of such cir- Gall, 128 S.Ct. 594-95. goal reducing cumstances furthered the of rejected The Court as inconsistent unjustified sentencing disparities. Id. with the abuse-of-diseretion standard of We then reviewed the district court’s applicable appellate review to review of all weighing of Burns’s assistance heightened decisions the stan 5Kl.l(a) of the factors and concluded the resulting require dard of review from the timeliness, truthfulness, completeness, exceptional ment of circumstances and the as well as the nature and extent of Burns’s application rigid mathematical formula justify did not percent assistance 60 Rather, tions. Id. at 596. reduction in Burns’s sentence. Id. 763- in determining court’s latitude the extent so, In doing 66. we voiced our concern of variance from a guidelines sentence is impact about the granted the reduction by requirement major cabined “that a might upon required Burns have to be supported by should be a more granted reduction-worthy to even more de- significant justification than a minor one” fendants. Id. at 766. requirement the chosen our agreeing adequately explained We concluded review sentence be as to so with the district meaningful appellate court’s selection of the allow for review and presumptive life sentence of promote perception 360 months as of fair sentenc proper guidelines departure range. ing.

893 government’s stan evaluation extent of the abuse discretion Under assistance, a sentence applicable “govern- once the defendant’s dard of review free from to be controlling, has been determined ment’s recommendation is not error, fact procedural “[t]he significant however, and it is the district re- court’s might reasonably appellate court that the to determine an sponsibility appropriate a different sentence concluded that (quoting reduction.” Id. United States v. justify insufficient to appropriate was (8th Cir.2005)). Haack, 997, 403 F.3d 1005 the district court.” Id. reversal of by saying We concluded that we would departures “not consider final substantial-

III. ly unexplained govern- at variance with on Remand Issues ment recommendations be de facto proof discretionary abuse.” Id. remand, hearing argument on Prior to parties supplemen- to submit we asked the Turning specific question to the on following tal on the issues: briefs requested supplemental briefing, which we States, 1. Did v. United government that the we conclude is under 586, L.Ed.2d 445 128 S.Ct. 169 apprise obligation no the district court (2007), abrogate or overrule this court’s respect underlying to the bases in sen prior decision “that particular recommendation of a downward U.S.C.] tence based on [18 departure under the absence only be based on assistance-related showing of a that its recommendation was considerations,” v. United States an unconstitutional upon based motivation Williams, 474 F.3d Cir. religion. such as the defendant’s race or 2007)? Armstrong, Cf. United U.S. 2. To what extent does Gall stan- 456, 463-64, 134 L.Ed.2d apply review dard (1996); Wade court sentence under review of a district 181, 185-86, U.S. 3553(e)? 18 U.S.C. (1992); L.Ed.2d 524 obligation govern- does the 3. What (8th Cir.2004). Moeller, apprise ment have to district Armstrong, As the noted in “[t]he Court underlying to the bases its recom- as Attorney General and United States Attor de- particular mendation of a downward discretion’ to enforce neys retain ‘broad 3553(e)? § parture under 18 U.S.C. They criminal the Nation’s laws. have this in treat these issues different We will they designated by are latitude because order, addressing the last issue first. delegates help as the President’s to statute discharge responsi him his constitutional IV. that the Laws faith bility to ‘take Care ” Duty to Disclose Government’s fully executed.’ 517 U.S. at (citations omitted). holding S.Ct. 1480 in our en banc We touched on this issue had in compel that the district court erred decision, rejecting government’s con 3553(e) § to file a ling government give that the district court failed to tention motion, we stated that “it is not the sen weight government’s substantial function to look tencing court’s behind that Burns evaluation of the assistance prosecutor’s substantial assistance deci Burns 500 F.3d at 765 provided. had prosecu in sionmaking this fashion. pointed although n. 7. out that We quality quantity tor’s evaluation of the commentary requires § the dis to 5K1.1 assistance, prosecu- like a weight to the of a defendant’s give trict court to substantial 3553(e) § particularly granted by imposed if it prosecute, to ‘is sen- tor’s decision ” Moeller, judicial review.’ ill-suited statutory tence below the minimum based omitted). (citation F.3d at 713 upon history in part and characteris- 3553(a)(1). § tics of the defendant. See reasoning conclude set We Id.3 applies equal in cases forth those us in this question before case. force to have in holding We revisited allegation, no much less a There has been post-Gall Williams and have concluded on showing, unconstitutional motive that Gall has not affected the limitations part declining go in government’s 3553(e) § imposed by upon 18 U.S.C. provided it to the dis beyond the reasons authority impose district court’s sen- its reasons for its explaining trict court statutory tence below the minimum. See recommendation. percent departure Johnson, United States v. fully more elaborating on the rea Whether (8th Cir.2008); Freemont, United States v. might for its recommendation sons (8th Cir.2008). We adhere to course to was prudent been a more follow holdings in those cases.4 As we read to decide. government for the Gall, the there was concerned about heightened standard of review that V. appellate imposed through courts had Williams Issue application concepts such as extraordi- We held circumstances, nary/exceptional Williams, Cir.2007), 474 F.3d 1130-31 review, percentages, proportionality reducing a that after sentence based on nothing the like and said that would indi- 3553(e), § the factors set forth 18 U.S.C. cate that district courts are not bound a district court not reduce the sen 3553(e). the strictures set forth in factors, on tence further based other than 3553(a): assistance, set forth 18 U.S.C. VI. authority a court has to sentence “Where Post-Gall Review of Departures statutory only by below a minimum virtue 3553(e), government of a motion under turn principal We then to the issue statutory the reduction below the mini remand, before us on which is whether the exclusively mum must be on based assis standard of review laid down tance-related considerations.” Id. at 1130- applies to our review of a sentence pointed out We the text of imposed provisions under the of 18 U.S.C. states that the provides section 3553(e). We conclude that it does. “[ljimited only authority impose a sen The Court in Gall noted the district statutory tence below a minimum.” Id. at superior position judge court’s to find and 3553(e) Further, body § 1131. the of 3553(a), impact § the of facts under the spells authority out that the district court’s district court’s opportunity to see and hear imposing is limited to a sentence the below credibility the evidence and thus make de- statutory only minimum “so as to reflect a terminations, and the district great- court’s defendant’s substantial assistance.” Id. at 3553(e)). familiarity er access to and with the (quoting § A indi- district court authority would thus exceed limited vidual case and the individual defendant. (8th Coyle, In United States v. 4. We F.3d 680 note that the Tenth Circuit found the Cir.2007), reasoning we persuasive. held that a district court be Williams to See 3553(a) A.B., upon (10th rely § factors to fashion a United v. States Cir.2008). statutory sentence above the minimum. say upon no basis which also We see The court Gall, at 597-98. 128 S.Ct. regarding the “institutional ad- admonitions court’s the Court’s the district noted making appellate appellate courts view that vantage over deferential highly determinations, especially as these sorts take towards a district courts should sen- many more Guidelines they 3553(a) so see § factors appraisal of the court’s do.” Id. courts appellate tences to the district court’s apply not also should States, 518 v. United (quoting Koon regarding determinations findings and 81, 98, 135 L.Ed.2d U.S. § factors as it calculates five 5K1.1 (1996)). assistance substantiality of the defendant’s that we had motion ruling government’s went on to note on the The Court when 3553(e). to the district virtually no deference given The in- a for factors that the court’s decision spoke that the advantage stitutional in Gall’s significant a variance justified applies equal of in Koon Gall case, had correct- although we saying in a case. We force of re- appropriate standard ly stated the knowledge superior to judges can claim no analysis that more view, in an “engaged we making court in that of the district of the novo review closely resembled de findings required evaluations that, and determined presented facts Accordingly, our review 5K1.1. view, was not degree of variance [our] and usefulness of defen- significance held The Court 600.5 warranted.” should accord the district dant’s assistance the difference the extent of that “while of that assistance the court’s assessment rec- and the particular sentence between True, it deference deserves. institutional surely rele- range is Guidelines ommended court must take into account vant, review all appeals must courts of the assis- government’s evaluation outside, inside, just sentences —whether rendered, 5Kl.l(a)(l), but be- tance see outside the Guidelines significantly the district court to yond that it is for dis- abuse-of range deferential —under special vantage-point bring bear (emphasis Id. at 591 cretion standard.” making findings competence added). Livesay, v. United States See it. requires § 5K1.1 judgments (11th Cir.2008) (reviewing Likewise, court in the it is for the district under the § 5K1.1 a U.S.S.G. to be concerned about first instance review). standard of Gall given in a case that a reduction impact opinion banc recounted Our recent en in other substantial might potential upon the imposed by limitations assistance cases. sentences, noting review of scope of our say not to that we no say To that this is rejection of explicit Court’s reviewing play have a role to longer extraordinary cir- concepts the use re- of a sentence reasonableness formu- rigid mathematical cumstances and limits to the There must be some Feemster, duction. las. States discretion, Cir.2009) (en banc). surely a dis- district court’s 461-62 by a major departure supported 'a should more than one occa- 5. We have observed on pr significant justification of our stan- a minor that the e-Gall articulation sion more ” Lee, may dif- not have been much dard of review one.’ United States may expressed in "One Gall, from that Gall. Cir.2009) ferent at (quoting 128 S.Ct. articulated in question whether the standard 597). States v. Marron-Gar- See also United proportionality review pr e-Gall this court's (8th Cir.2009) cia, (quot- substantively Supreme different from was Lee). courts in Gall that direction to district Court’s circumstances, willy nilly mood-of-the-day trict re- al percentages, court’s ap- review, ante, from proportionality like,” duction should not be insulated and the review, pellate may there well be result, have ended. This command- in a reduction so far cases which exceeds by Supreme ed Court’s decisions in a justification support offered thereof line of cases that culminated Gall v. that it must set aside. (2007), 169 L.Ed.2d 445 puts the discretion whether, then is after question court, sentencing just the district putting exceptional/ex aside all notions of be, where it regard should with due for the circumstances,

traordinary departure per guidelines and the relating statutes review, centages, proportionality and simi goals sentencing. Appellate courts are review, lar data-based standards of sentencing courts. granted to Burns is substantive ly it unreasonable. We conclude is The dissent essentially argu- makes two major not. That the reduction was a one First, ments. apply that Gall does not beyond dispute. sup is Whether it was sentencing reductions under be- ported by sufficiently significant justifi cause there are no Sixth Amendment con- question. giving cation is a closer After Second, cerns with such reductions. the district explanations, court’s which we repeatedly court, dissent asserts that this adequate find to be for meaningful appel in Bums adopted the same proportion- review, late the due deference that Gall al rejects review that the court today. commands, we conclude that it was. The Both arguments point. miss the sentence, although perhaps not that which First, the dissent’s focus on the per- we might imposed, support finds 3553(a) ceived distinctions between (pro- the district court’s assessment Burns’s factors) viding a list of relevant assistance. As revealed (providing that a district above, findings length court’s set forth at court authority has to sentence below the capricious, assessment was not whim minimum) mandatory lead it to overlook sical, impressionistic, or ire-driven. We point altogether. IAs read conclude that the sentence does not reflect Gall, opinion is at least as much about discretion, abuse of the district court’s district-court discretion it as is about the it and is therefore affirmed. Sixth high Amendment. The court could not have been more Conclusion clear: “the abuse-of- discretion standard of applies review We reaffirm our earlier holding review all deci- that the district correctly used the Gall, sions.” (emphasis 360-month presumptive life sentence as its added). I am unaware of departure point in determining the reduc authority Gall, contrary. tion. Accordingly, the district court’s therefore, applies equal force to sen- judgment entirety. affirmed tencing proceedings under both BRIGHT, Judge, Circuit with whom 3553(e). Judge Bye joins in Part I only, concurring. The dissent also contends that Gall result,

I concur in the sepa- but write justify “does not wholesale abandonment rately explain my to further views. approach endorsed the en banc I. II,” post, court in Bums at 898. But the Today, the court definitively concludes circumstance that this court have en- days that the of “extraordinary/ exception- improper dorsed an standard is of no mo- explanation that extensive repeat will not Supreme Court the example, For ment. here. States v. vacated, abrogated my deci- of views See United reversed, or has Cir.2007) (8th Burns, 756, cir- of other 500 F.3d 770-77 court and those of this sions J., will, however, recent cases relat- I (Bright, dissenting). in a courts series cuit I have sentencing majority’s and criminal law. responses to add two brief my distinguished regard for highest analysis the of this issue. II. Bums II joined Bums colleagues who First, the cases cited the court for circuit until the rule this

represented prosecutor has no proposition the that the the was vacated judgment the for the duty explain to basis for reconsideration and remanded directly point. are not on recommendation high court vacated light of Gall. When Armstrong, See United II, its and remanded Bums judgment 463-64, 134 L.Ed.2d 116 S.Ct. the discretion be- message seems clear: (1996); Wade v. United the district court. longs with 185-86, U.S. Sentencing Guidelines mandatory A (1992); L.Ed.2d Today, this with Booker. scheme ended Cir.2004). Moeller, 710, 712 federal the role of recognizes - They merely stand for the unassailable has drastical- review of sentences prosecutors, contexts other premise begins Thus a new ly changed Gall. here, than the one have “broad discretion” creating fairer sentencing, hopefully era in our Nation’s criminal laws. to enforce many meted out under sentences Armstrong, 517 116 S.Ct. 1480 U.S. But let me mandatory guidelines regime. omitted). (internal marks This quotation judges. Discretion to district add word conclude, by majority leads the premise supported unfettered and must is not way analogy, prosecutor that the instant either reasons by good to make the district obligation had no advisory guide- below the now above or justifica- government’s court aware of the proper sen- determining lines or reduction. tion for the recommended statutory minimum for an tence below Enforcement of analogy The is flawed. assistance.” offender’s “substantial issue; is the criminal statutes office, question prosecutor is which II. court, play primary should majority’s I with the Although agree period up- After a sentencing. role at our standard to application in the area of sentenc- change heaval 3553(e) reductions, reject I review of crystal clear: ing, the answer is no is “under ruling government that the courts and the discretion is for district the district court with obligation apprise by them. to be exercised its recom- underlying respect to bases downward de- particular Second, today suffers mendation the rule stated in absence of a serious, parture another, potentially more from recommendation was showing that experience are fault. Information motivation an unconstitutional upon based discretion’s against strongest bulwarks religion,” race or the defendant’s such as I no doubt that caprice. into slide ante, at 893. experienced. courts are our district ade- they will have question is whether point in by my dissent on this

I stand properly exercise quate information govern- I that the when wrote Bums why strongly I This is their discretion. for its explain the basis obliged ment is inherently court, process with a disagree and I to the district recommendation efficacy judicial restricts discretion a defendant’s substantial assistance. These decisions, by encouraging government to with- culminating United v. States Burns, (8th Cir.2007) (en hold crucial information from the district 500 F.3d 756 — banc) (“Burns II”), vacated, U.S. —, courts. 1091, (2008), L.Ed.2d 804 reasons, explained For these and those developed a sound methodology for con II, my reject I dissent Bums 3553(e) ducting appellate § review of re majority’s prosecutor conclusion that ductions. obligation has no to inform the district The Court’s court of the rationale behind a reduction decision in Gall v. 552 U.S. recommendation. S.Ct. (2007), 169 L.Ed.2d 445 concerning appel- III. late review of sentencing decisions under a statutory subsection, different 18 U.S.C. majority panel adheres to the deci 3553(a), § justify does not wholesale aban- Williams, sion in United States which donment of the approach by endorsed held that a district when court has authori en banc II. imple- Bums Gall minimum ty statutory to sentence below mented the constitutionally-based holding only by government virtue of a motion Booker, United States v. 3553(e), under “the reduction below the (2005), 160 L.Ed.2d 621 statutory minimum must be based exclu which declared sentencing guidelines sively on assistance-related consider effectively advisory cases, in all and estab- (8th ations.” 474 F.3d Cir. appellate lished review for “reasonable- 2007). ness.” But whereas appel- the deferential recognize I nothing there is in Gall late review under Gall and Booker must directly overrules or otherwise abro- focus on whether a sentence is reasonable Williams, gates meaning that Williams of all of the undifferentiated good remains law in this circuit. But Iif whole, factors taken as a slate, were writing on a clean I would sole purpose review in a permit a district court to consider all fac- 3553(e) case is to determine whether the tors, including 3553(a), §in those when district court reduced a sentence below the whether, determining extent, and to what statutory minimum “to unreasonable a sentence below applicable statutory degree” based on the defendant’s level of minimum necessary. 3742(f)(2). assistance. 18 U.S.C. Re- view of sentence reductions COLLOTON, Judge, Circuit with whom 3553(e), moreover, is by unencumbered LOKEN, Judge, Chief and RILEY and the Sixth Amendment concerns that un- GRUENDER, Judges, join, Circuit derlay Therefore, Booker and Gall. dissenting. does not dictate a dramatic change in our In a series of beginning cases with Unit analysis cases, §of and substan- Haack, (8th ed States v. 403 F.3d 997 tially for the reasons discussed Cir.2005), Dalton, court in Bums I would reverse the (8th Cir.2005), F.3d 1029 and United judgment of the district court and remand Pizano, Cir. proceedings. further 2005), this court was upon called to decide court, whether a district acting under 18 I. 3553(e), U.S.C. abused its discretion A. granting unreasonable sentence reductions below a statutory minimum term based on Section provides: 3553(e) authority impose on substantial to a sen- der based assis- Limited statutory untethered from a minimum.— tance should not be the tence below Government, guidelines, of sentencing the the structure the be- Upon motion of authority in impose place the to the reductions take the court shall have cause con- by designed a level established a that is statutory plan a sentence below text of to to minimum sentence so as promote uniformity proportionality statute as a and in substantial assis- sentencing. reflect a defendant’s that the explained amount We prosecution investigation or tance in the proportional of the reduction should be to an who has committed person by of another degree provided the of assistance the be imposed sentence shall offense. Such cooperating observed defendant. We guidelines the and in accordance with adjustments for guidelines provide the by policy statements issued Sentenc- two, three, levels and four offense to ac- to section 994 pursuant Commission aggravating mitigating count for and most 28, Code. of title United States Saenz, circumstances, v. United States 428 (8th 1159, Cir.2005), F.3d and rea- today reaffirms The court grants a court a soned when reduction for a court authority district grants limited substantially exceeds these bench- only based on to reduce a sentence marks, identify exceptional it should facts A gov- assistance. defendant’s substantial justify larger to reduction. See United under does ernment motion Jensen, (8th v. 493 F.3d States to impose authorize a Cir.2007). words, major In other reduc- on factors more based lenient sentence a more supported by signifi- tion should be 3553(a). forth in See United States set justification cant than a minor one. Williams, v. 1130-31 Cir.2007); see also United States methodology grounded This was well (4th Cir.1999) Pearce, 494-95 Court and decisions other court improp- that the district (concluding circuits. Williams v. United factors erly decision on unrelated based its S.Ct. L.Ed.2d gov- to defendant’s assistance (1992), explained that a the Court ernment, by per- the court’s as evidenced appeals departure court of should affirm a ar- response missive to defense counsel’s mandatory if it from otherwise sentence “ ‘good days’ gument invoking the ole departure “satisfied that the is reason- worry have ‘to judges when did not about 3742(f)(2). Id. at able” 18 U.S.C. and guidelines and commissions 203, 112 1112. “The reasonableness Bibas, ”); things Stephanos that’ like cf. amount determination looks to the Local Variations Federal Regulating departure extent 137,150 (2005) L.Rev. Sentencing, 58 Stan. Id. The grounds departing.” reasons (“[Jjudges in some districts resent what court, therefore, stated they unduly view as severe Guidelines sen- justify the magni- must be “sufficient to happy judges exploit tences. These are to at 204. departure.” Ap- tude of departures escape substantial assistance to plying in the context of Williams substan- judges, strictures. Other Guidelines’ assistance, tial the Fourth Circuit however, departures peg their seek nature, extent, and Pearce considered the Guidelines, offering proportionate and significance cooperating of a defendant’s (footnote discounts.”) omit- more modest government, assistance found ted). support mag- that it was insufficient granted nitude of the through Our from Haack decisions at 495. The II that a un- district court. 191 F.3d Sev- Bums established Thomas, enth dant cooperation Circuit whose was “limited to (7th Cir.1991), superseded on proffering information about a handful of (1991), grounds by other USSG 5H1.6 people serving only aas corroborative depar- declared that substantial-assistance witness grand jury against before a two of tures must be “linked to the structure of them.” Id. at 1033. guidelines.” Id. at 530. The court Saenz, In we held that the district recognized that “weighing impact of court’s 11-level reduction was excessive any given quality factor on the of the unreasonable, and where the nature and cooperation defendant’s is an imprecise extent of the defendant’s assistance was “ art,” ‘departures but cautioned limited,” “relatively significance and explained more two levels should be usefulness of her “relatively assistance was with the care commensurate with their ” modest,” and she suffered apparent no exceptional quality.’ Id. at (quoting danger or injury. risk of 428 F.3d at Ferro, 1163-65. We also found unreasonable the (7th Cir.1990)). district “any court’s conclusion that defen-

B. dant who timely, completely truthful, is complete, reliable, govern- and tells the Our cases before Gall ment everything they need to know de- carefully analyzed whether reduction,” serves more than percent justified court’s stated reasons magni- (ie., more than ten offense levels Haack, tude of its reductions. case), Saenz regard without to the nature court was left with the “firm impression and extent assistance, that the district court defendant’s reached outside its permissible range significance choice and abused its usefulness of the as- by departing sistance, discretion downward to an any danger or or injury risk of degree.” unreasonable 403 F.3d at 1004 endured the cooperating defendant. (internal omitted). quotation We reversed (internal omitted). Id. at quotation 1162-63 a seven-level reduction as unreasonably In United Coyle, large, observing after cooper- Haack’s (8th Cir.2005), we reversed as unreason- ation consisted of providing information ably large reduction, a 14-level which the that led to the issuance of a search war- district court characterized “whopping,” as residence, rant at a standing ready to tes- (internal id. at 1193 quotation omitted), on tify against occupants needed, if the view that a reduction magni- of that providing against information suspects al- tude should be reserved for cooperating ready under indictment or known to law provide defendants who greater degree a enforcement. Id. 1005. A reduction of of assistance. Id. at 1194. We observed extent, the court explained, “leaves “[tjhere undoubtedly are defendants greater little room for departures for de- provide who long-term undercover assis- actually fendants who participate in con- tance that greater than the two con- wires, buys, trolled give grand wear jury here, trolled transactions involved who as- testimony, and trial subjected or are sist investigation with the of multimember significant risk of injury or death to them- conspiracies rather than single defen- selves or family.” their Id. at 1005-06. In prosecuted matter, dant in this Dalton, whose co- the court was left with “the defi- operation apprehension results in the nite and firm conviction” that the district particularly dangerous court permissible ‘king- “exceeded the offenders or bounds of discretion,” pins,’ 404 F.3d at when it and who suffer a tangible more risk granted a 12-level reduction to a injury defen- of or actual harm as a result of their government.” We the bounds of Id. level exceeded cooperation to conclude that defendant at 762. The were loathe reasonableness. greater of assistance these levels providing large held that to affirm such reduc- greater awarded even must be on the reduction based assistance rendered levels) (ie., 15 more offense tion “would goal the defendant frustrate our disparities. unwarranted avoid departures preventing becoming from from the untethered structure of hand, as rea- the other we affirmed On guidelines and would not reflect mean- district court’s 12-level reduc- sonable the ingful proportionality.” sense of Id. at Pizano, pro- where the defendant tion was 766. timely cooperation, truthful vided against co-conspira- “key witness” two decisions that we recognized These

tors, testimony that be instru- gave could say preci- not “with mathematical could money seizing in from a mental assets great a sion” how reduction should be scheme, provided debriefings laundering granted particular degrees coopera- for both jury testimony regarding grand and tion, II, Haack, 762; 500 Bums F.3d at “major fig- family member and a a close they 403 F.3d at but identified himself conspiracy, put in the and ure” ranges of reasonableness and outer limits family at “dan- risk of harm from and his court’s on the district exercise of discre- 403 when he testified. gerous people” tion. The cases a pro- fostered decisional In Pep- States v. F.3d at 995-96. United in which cess determinations about sub- (8th Cir.2007) (“Pepper F.3d 408 per, 486 stantial-assistance reductions were linked II”), on con- remanding after first based the structure of the and guidelines, to factor, an improper sideration of by not motivated factors improper were Pepper, F.3d hostility mandatory sentencing, to such as Cir.2005) I”), (“Pepper the we held Haack, at 403 F.3d or a desire to court did its discretion district abuse pos- sentence a defendant “the shortest the sentence reducing in defendant’s imprisonment” sible term of that would “timely, levels on five offense based participation prison drug allow for in a truthful, honest, helpful, important” I, at program. treatment Pepper de- district court assistance opinions to ensure that “pedestrian average.” Pep- 999. strived scribed as (internal II, quotation magnitude propor- F.3d at 411 of reductions were per omitted). Jensen, justified In affirmed the dis- we tional to the circumstances that a de- them, trict court’s six-level reduction for micro-managing the district without timely, complete, who was fendant sentencing court’s decisions. As we said truthful, by law extensively was debriefed Coyle, example, good in is a “[t]here agents concerning a substan- enforcement government’s deal of room between the methamphetamine conspiracy, tial served recommendation a [for modest a witness in a prospective as than two full and the less offense levels] resolved ultimately was proceeding generous district court’s [of major figure by stipulation, identified this recognize defendant’s assis- levels] in the conspiracy, testified drug skewing at the tance without same time fu- support probable grand jury degree reduction that must at 1001. ture indictment. per- future granted to defendants whose on the continuum of formance substantial applied en banc court Bums deserves more credit methodology in these cases assistance developed F.3d at Coyle’s.” court’s ten- 1194. and concluded the district C. specific reason: it was inconsistent with the remedial opinion Booker. 128 S.Ct. During period, the same time this court at 595. The Court established that began implement Court’s proper measure of “reasonableness” in a Booker, which decision held that 3553(a) case is not whether the variance application mandatory sentencing advisory guideline from the range is rea- guidelines violated the Sixth Amendment sonable, but whether right circumstances, trial in certain the ultimate sentence jury 3553(a) guidelines “effectively and declared the ad- reasonable of all of the visory” remedy. in all cases as factors taken as a whole. Id. 597. Pro- The Court held that portionality 3553(a), review under sentencing courts should consider and take explained, came “too close to creat- into account guideline impermissible presumption of un- range, that the but district courts should reasonableness for sentences outside the impose sentence based on the factors set range.” Guidelines 595. Because forth in 18 U.S.C. as a whole. advisory range is sometimes based on Id. Booker directed the appeals courts of findings made sentencing judge, imposed by to review sentences proportionality review would mean that they courts to determine whether are “un- some “upheld sentences would be only on 3553(a).” § regard reasonable with the basis of judge-found facts,” additional at 261. (Scalia, J., id. at 602 concurring), and these circuits,

Like some other our court in sentences would violate the Sixth Amend- terpreted and Booker its “reasonableness” States, ment. See Rita v. United 551 U.S. requirement to call for what came to be 338, 371-72, 2456, 127 S.Ct. 168 L.Ed.2d “proportionality described as review” of (2007) (Scalia, J., 203 concurring judg- imposed sentences under the new advisory ment). By rejecting proportionality re- regime. approach, Under this when a dis view applying and a deferential abuse-of- trict imposed non-guideline court a sen review, diseretion standard of the Court tence, we reviewed to determine whether drastically curtailed review for substantive justification court’s stated for reasonableness, thereby minimized the varying advisory guidelines from the was number of Sixth Amendment violations “proportional to the extent of the differ that will occur advisory system. under the ence advisory range between the and the imposed.” Gall, sentence II. (8th Cir.2006) (internal 889 A. rev’d, omitted), quotations 552 U.S. (2007). S.Ct. L.Ed.2d 445 The Supreme Court remanded this case Gall, Supreme further consideration in light Court held that an of Gall.6 requiring analysis rule a proportional jus- Gall concerning review of a tification for a variance from advisory imposed 3553(a), § sentence under howev- guideline range impermissible er, was for a does not dictate that this court abandon summary The Court’s reconsideration equivalent order order as the functional of a sum- does "not amount to a mary final determination on reversal order and that the lower court Hill, Henry City the merits.” being merely Rock is told to reconsider the entire 776, 777, U.S. 84 S.Ct. 12 L.Ed.2d intervening precedent— case in of the (1964) curiam). (per According leading may compel to a which a different treatise, fairly Gressman, al., “[i]t seems Eugene clear that the Court Supreme result.” et summary ed.2007). does not treat reconsideration Court Practice 349 uniformity sentencing, re- achieve review of sentence proportionality 3553(e). § no under Booker has remedy, ductions with its Booker wide discre 3553(e). § As the application sentencing judges, contrary tion for was sentencing judge a is for- today, reaffirms Booker, Congress to what desired. See 3553(a) § factors to rely on the bidden 246-47, 250, 253, 263-64, at 543 U.S. acting gov- on a a sentence when reduce 738; 292-300, id. 125 S.Ct. 738 3553(e). Ante, § motion under ernment (Stevens, 303-06, J., dissenting); id. review under reasonableness 894. Unlike (Scalia, J., dissenting). 125 S.Ct. 738 3553(a), appeals the court of is where With no Sixth Amendment concerns under considering the reasonable- charged with 3553(e), no reason to there is abandon regard to all of the ness of a sentence designed to keep framework that is sen 3553(a) whole, § taken as a factors tence reductions tethered the structure purpose of reasonableness review exclusive guideline system Congress of the cre to determine whether ated. reduction from the statu- degree applied Gall abuse-of-discretion stan- is reasonable. tory minimum sentence dard of review to district court’s sentenc- held in the context of decisions, nothing but this is new. evalu- appeals merely does not the court Gall, before in Koon v. of a variance be- Well ate the reasonableness advisory guideline range 81, 96-100, and the tween only responsibility But the final sentence. (1996), L.Ed.2d 392 appeals case of the court applied an abuse of discretion standard to departure whether the be- is to determine a district from an court’s other statutory minimum is “to an unrea- low the sentence, mandatory wise our 3742(f)(2). degree.” 18 U.S.C. sonable 3553(e) § Haack to decisions from Bums play. are no other factors at There II likewise abuse of conducted discretion ruling See, district court’s on a substan- e.g., review. Burns 500 at F.3d 3553(e) § motion under also tial-assistance 760; Haack, at Appel 403 F.3d 1003-04. concerns under the poses no constitutional late review under this standard is not an only possible Amendment. The ef- Sixth exercise,” “empty deference “[t]he 3553(e) § the fect of a motion is to reduce that is due on the nature of the depends sentence. As with a sentence defendant’s Koon, question presented.” 518 U.S. “ proceeding under 18 U.S.C. 98,,116 S.Ct. 2035. ‘Abuse of discretion’ 3582(c), potential judi- § no there is meanings have different in different a factfinding resolving cial conducted contexts; given particular the deference § motion will increase statuto- depends upon why decision ‘the reason ry punishment. maximum See United category type of decision is com (8th Starks, 839, 551 F.3d 842 trial mitted to the court’s discretion - denied, Cir.), -, 129 cert. U.S. ” Gasperini first instance.’ v. Ctr. Hu (2009). 2746, 174 257 Ac- S.Ct. L.Ed.2d manities, Inc., 137, (2d 141 Cir. cordingly, there is no constitutional diffi- 1998) (quoting Henry Friendly, J. Indis culty appellate requires with an rule that Discretion, Emory cretion About 31 L.J. identify justifications to a district court (1982)). 747, 764 § for a sentence reduction under 3553(a), § due to a confluence of Under proportional magnitude that are circumstances, discretion a district court’s reduction. The Court Booker First, zenith. there is almost is near its unanimously recognized Congress Friendly, supra, at 765. sought apply.” Act to “no law to Sentencing Reform signed has discretion to The district court consid- ameliorate Sixth Amendment vi- information, virtually er unlimited see 18 much possible, giving olations as as York, 3661; § Williams v. New U.S.C. apply district courts free rein to S.Ct. 1079, 241, 247, U.S. 93 L.Ed. 1337 3553(a) Gall, § factors. See S.Ct. (1949), apply the undifferentiated (Scalia, J., Third, concurring). 3553(a) factors under as it sees fit. Af district court’s “institutional advantages” Kimbrough ter appeals over the court of greatest are 85, 128 558, 169 L.Ed.2d 481 engaged when the court is in a (2007), this court has no identified basis Gall, “unique study in ... failings,” human appeals substantive law for a court of (internal quotation 128 S.Ct. at 598 omit- prefer sentencing prac- one district court’s ted), informed all of the factors set 3553(a) tices under over those of anoth- 3553(a), §in including forth even “insights Feemster, er. See United States v. conveyed by the record.” Id. at 597. n. 461-62 463-64 Cir. 3553(e) case, however, In a there is a 2009) (en banc). long As as the “principle preference” is absent judge arbitrarily does not act or shock the 3553(a). Friendly, supra, See conscience, Rita, see 551 U.S. at It entirely appropriate is for a court (Stevens, J., concurring) (reject- S.Ct. 2456 appeals prefer proportionate reduc- review,” ing “purely procedural because tion from mandatory minimum over a all, judge gives a district who “[a]fter disproportionate one. given The reasons harsh sentences to Yankees fans and le- by the district court must be “sufficient to nient sentences to Red Sox fans would not justify magnitude departure,” acting reasonably if procedur- even her Williams, 503 U.S. at rulings impeccable”), al were there seems and an sufficiency evaluation of requires to be no legal discernible reason for a the court appeals to consider whether court of appeals to declare unreasonable magnitude of the assistance propor- judge imposes decision of a who sen- tional to magnitude of the reduction. tence under based on the indi- No constitutional difficulties arise from vidual characteristics and circumstances of this rule of review under Second, particular high- defendant.7 3553(e). And the institutional advan- ly adopted deferential standard of review tages of the district court cited the in Gall is influenced the constitutional Court in A Gall are muted. sentence re- problems result would from more § duction under does not involve rigorous appellate review. Given that the the same wide-ranging, highly personal in- invalidating mandatory guide- basis for quiry in that a district place lines the first court must was the Sixth undertake Amendment, 3553(a). pursuant § to standard review There is one dis- adopted by the presumably Court is de- crete issue: the degree of reduction war- Supreme 7. The judgment give any Court has reserved weight advisory guidelines. to the on whether “closer review be in (Scalia, J., order See id. at 576-77 concurring); sentencing judge when the varies from the Booker, 245, 264, 543 U.S. at 125 S.Ct. 738 solely judge's Guidelines based on the view (explaining that a district court must '-'consid- range properly that the Guidelines 'fails to advisory er” guidelines and “take them 3553(a) reflect considerations’ even in a 305-06, account”); into id. at 125 S.Ct. Kimbrough mine-run case.” v. United (Scalia, J., (“If dissenting) majority ... 558, 575, 128 S.Ct. 169 L.Ed.2d thought only the Guidelines not had to be Rita, (2007) (quoting 551 U.S. at generally 'considered' ... but had to be fol- 2456). said, yet The Court has not how- so.”). opinion surely say lowed ... its would ever, that a required court is and at or near the limit of “generous, the was assistance to by the defendant’s ranted as reasonable based what we could view to that deci- respect With government. assistance,” the district on this level of of the sion, statement governing policy not abuse its discretion. 493 court did establishes Commission Sentencing And we affirmed a 12-level the F.3d at 1001. sentencing court owes deference Pizano, saying in that while the party— another advantage of institutional “well below extent of the reduction was cooper- more which sees government, recommendation,” it was government’s district any single ating defendants of discretion. 403 F.3d at not an abuse positioned is best and which judge, opinions in these coopera- 997. The discussion a defendant’s value of know the appeals that the court of investigations. suggest does not enforcement tion law comment, (n.3) 5Kl.l(a)(l) court agreement with the district & reached See USSG (“Substantial of review. given a de novo standard weight should under Rather, range the extent of that a recognized the court government’s evaluation assistance, particularly of discretion is available the defendant’s value of the assis- court, though the extent and even where and affirmed sentences ascertain.”). The difficult to might reasonably tance are court appellate “the that the dis- must ensure appeals court of concluded that a different sentence principle to that Gall, trict court adheres at 597. appropriate.” was as well. preference fact that other sentence reduc- The mere were reversed as tions under the standard of review discussing In of dis- unreasonably large and abuse Gall, concluded court ap- not mean that the cretion does by this review conducted cases either. de novo review those plied under to a decision respect court with 3553(a) de closely “more resembled B. It cannot at 600. review.” 128 S.Ct. novo Gall, understanding of and of On this however, said, that this court has fairly be the distinctions between of de novo review equivalent applied 3553(e), in Bums II 3553(e). § the en banc decision reductions to sentence explained essentially sound.8 We was “pe- a five-level reduction affirmed We justified Bums II that the district stating Pepper assistance destrian” by emphasizing call,” ten-level reduction but that we it a “close was assistance, the truth- of Burns’s abused its timeliness say the district court could not (internal coopera- of his quo- completeness fulness and at 411 discretion. Jensen, tion, omitted). the nature and extent rejected we tation at 763. We conclud- assistance. 500 F.3d challenge to a six-level government’s however, ed, given were that the reasons reduction, the reduction saying that while Jensen, 1000-01; 762; at see also 493 F.3d remnants of a did include some 8. Bums II Chettiar, approach to 860 percentage-based United States mathematical reductions, rejected, evaluating Cir.2007); which Gall (8th Maloney, States v. 595-96, aspects Cir.2006). but those (8th S.Ct. at Nothing F.3d the ultimate opinion II do not affect in Bums to the Guidelines' suggests that reference Gall Gall, recog- we had Even before conclusion. the number of offense table and considering shortcomings reduc- nized the inappro- an by a reduction is levels traversed to a percentages, and turned tions in terms of distinguish "major depar- priate means to a method more in levels as focus on offense Gall, 128 S.Ct. at from a "minor one.” ture” theory of the keeping the structure 597. II, 500 F.3d at sentencing guidelines. Bums justify magnitude assistance, stituting regardless not sufficient of the guideline in the context of a the reduction opportunities available or the defendant’s employs adjustments system typically willingness ability provide more.” two, three, and four levels. Id. at 763- Id. at 765. 65. bottom, At Court’s decision We observed that the district court did regarding does not un identify provid not how Burns’s timeliness dermine the conclusion of panel dissent any ed benefit. Id. at 764. discernible Burns, in United States v. 438 F.3d 826 that the We reasoned district court’s em (8th Cir.2006) (“Burns F), vacated and phasis on Burns’s truthfulness and com (8th reh’g en banc granted, May Cir. pleteness, divorced from an assessment of 2006), adopted substance the en banc assistance, the value of justify his did not “[Ejven court Burns II: giving after an treating exceptional coopera Burns as respect carefully due considered tor, particularly in view of the district views of a district judge who has had the contemporaneous court’s announcement in experience of sentencing untold defendants “bright-line another of a case rule” that years, over the reduction in [ten-level] “any timely, defendant who is completely this case was excessive in truthful, reliable, complete, and tells the insubstantiality relative of Burns’s assistance.” government everything they need to know I, (Woll Bur ns percent” deserves more than 50 in reduc man, J., dissenting).9 6; tion of sentence. Id. at 764 & n. see

Saenz, 428 F.3d at 1162-63. We deter III. mined that applied district court The en banc court charts a different improper regarding test the “nature and course. It appears that so long as sen- extent” by focusing of assistance on wheth tencing court makes a reduction “provided er the defendant all of the infor knew,” whimsical, “capricious, impres- mation he Burns 500 F.3d at (internal sionistic, ante, omitted), ire-driven,” quotation it because will 5Kl.l(a)(3) proper analysis “the be affirmed. longer under No is there concern focuses on the nature major and extent of the that a cooper- for a minor actual, discrete, specific activities con- ator recognize leaves little room to assis- 3553(e). 9. The statement in Gall that “all sentences” of constitutional concerns under should be reviewed under deferential abuse- majority seems to believe that United standard, ante, (quoting of-discretion at 895 Livesay, Cir. 591) (emphasis 128 S.Ct. at majority added 2008), ante, 894-95, supports approach, opinion), plainly imposed refers to sentences but that case question does not address the 3553(a) pursuant to the remedial presented appeal. Livesay in this had no oc- Gall, opinion in Booker. See 128 S.Ct. at 594 apply casion the abuse-ofdiscretion stan- ("Our explanation of 'reasonableness' review dard to determine the reasonableness of a opinion in the Booker pellucidly made it clear reduction, substantial-assistance because it that the familiar abuse-of-discretion standard reversed the committing district court for applies of review now review of “procedural” error. 525 F.3d at Live- decisions.”). event, it is 3553(e). say also did not involve When a ground common that the reduction of Burns's imposes statutory sentence above the sentence should be reviewed for abuse of dis- minimum, Livesay, as in a defendant’s assis- question cretion. The here is whether abuse- likelyjust tance is another factor to be consid- of-discretion review of a reduction under 3553(a), 3553(e) § ered under § see United v. States differs from review of a sentence 3553(a), Lazenby, Cir.2006), imposed given under 439 F.3d 933-34 the different purposes appellate of review and the directly applicable. absence such that Gall is Haack, major cooperators, Judge aptly put As Wollman it in Bums tance from I, 1005-06, major prosecutors or that reductions “neither nor district courts F.3d at cooperators deprive system yield temptation indulging should of for minor proportionality.” solipsistic preferences recommending of “any meaningful sense imposing at 766. sentences.” 438 F.3d at rns 500 F.3d Bu (Wollman, J., dissenting). judges “District Burns, victory for but The decision is after all are not prosecu- minions of the necessarily the class of it benefit will token, By tor’s office. the same United defendants as whole. Un- cooperating Attorneys States are not subalterns of the 3553(a), where the like history district court.” of conflict actor and court is the sole exercis- district Attorney between the United States largely unconstrained dis- es what is now 3553(e) court in the district cases cretion, involve reductions under brought encouraging, to this court is not actor. The United States Attor- another perhaps process but set in motion long as he or she acts with no ney, so meaning- the en banc court’s elimination of motive, retains sole dis- unconstitutional help ful review will to foster an whether a substan- cretion to determine equilibrium. motion should be filed under tial-assistance 3553(e). motion, such a Without I respectfully dissent. may not sentence below the statuto- minimum. ry

The statute does not define what level “substantial,” counts as and the

assistance Attorney, setting that

United States

bar, a “rational assess- is entitled to make of the cost and benefit would

ment CHRISTIAN, Appellant, David Kenneth v. moving.” flow from Wade 181, 187, 112 U.S. (1992). If a United 118 L.Ed.2d 524 Lynn DINGLE, Warden, Stillwater Attorney is not convinced that re- States Facility, Minnesota, Appellee. cooperators for ductions under No. 08-2294. provide relatively modest assistance who modest, it correspondingly will be then Appeals, United States Court would be rational for the United States Eighth Circuit. bar, and Attorney to raise the withhold cooperating borderline motions some Submitted: June 2009. defendants, until the court’s de- Aug. Filed: 2009. satisfactory degree cisions demonstrate Rehearing Sept. Denied Saenz, proportionality. See hand, the United 1163. On other Attorney may necessary well find it

States court a proper give or she

better sense of how he evaluates cooperators on the continuum of

various assistance, cog- parties with all

substantial

nizant that these matters cannot be de- precision. with mathematical

fined

Case Details

Case Name: United States v. Burns

Court Name: Court of Appeals for the Eighth Circuit

Date Published: Aug 20, 2009

Citation: 577 F.3d 887

Docket Number: 04-2901, 04-2933

Court Abbreviation: 8th Cir.