MEMORANDUM OPINION AND ORDER
I. INTRODUCTION
Defendant Scott Donatiu (“Donatiu”) is before the Court for sentencing after pleading guilty without a plea agreement to a one-count information charging him with possession and intent to distribute 338 grams of a mixture containing cocaine in violation of 21 U.S.C. § 841(a)(1). In a Sentencing Memorandum filed in anticipation of his sentencing, Donatiu seeks a departure from the otherwise applicable sentencing guideline range of between 21 and 27 months. In connection with his request for departure, Donatiu raises several challenges to the constitutionality of the Sentencing Guidelines (“guidelines”). Specifically, Donatiu asks the Court to make the following alternative findings: (1) that § 5K1.1, the policy statement in the guidelines which governs departures for a defendant’s “substantial assistance,” on its face, violates due process; or (2) that § 5K1.1 violates due process in this case by requiring a government motion, before a court may depart; or (3) that § 5K1.1 does not require a government motion before a court may consider a departure under the section. For the reasons discussed below, Donatiu’s request for a departure is denied.
II. FACTS
There is little dispute among the parties with respect to the facts. Upon arriving from Florida at Midway Airport on May 20, 1988, Donatiu was stopped and questioned by DEA Task Force agents during a routine airport courier stop. Donatiu consented to a search of his carry-on luggage and the agents discovered a package wrapped in Christmas wrapping paper. Donatiu consented to the opening of the package and inside the package the agents discovered a tube stuffed with a plastic bag containing 338 grams of 97% pure cocaine. Once the cocaine was discovered, Donatiu admitted his knowledge of the cocaine and immediately agreed to cooperate with the DEA agents. He told the agents the name of his source, that his instructions were to deliver the package to someone at the Museum of Science and Industry in Chicago, and that he was to be paid $2,000 for this delivery. He agreed to cooperate with the government by making a telephone call to his source and completing the delivery as scheduled.
At the agent’s suggestion, Donatiu telephoned his source and attempted to find out who he was supposed to meet and where the meeting was to take place. Through no fault of Donatiu’s the government was not able to make the controlled delivery of the cocaine. Before Donatiu could reach his source by phone, the source had already learned that Donatiu had been arrested. When friends of Donatiu’s in Chicago had called his girlfriend to tell her of his arrest, the source was at Donatiu’s apartment, answered the phone, and learned of Donatiu’s arrest.
III. DISCUSSION
Donatiu urges the Court to depart from his applicable guidelines sentence based on two factors: (1) his “unparalleled” expression of candor and remorse and acceptance of responsibility; and (2) his efforts to “substantially assist” the government in the investigation and prosecution of others *622 associated with his offense. After a brief discussion of the general role of departures under the guidelines, the Court will address each of Donatiu’s arguments in turn.
A. Departures Generally Under the Guidelines
The procedure for imposing a sentence under the guidelines is set forth in 18 U.S.C. § 3553. Section 3553(a) provides a laundry list of factors which a court must consider in determining the particular sentence to be imposed. These factors include, among others, the kinds of sentence and the applicable sentencing range established by the Commission as set forth in the guidelines [ (a)(4) ] as well as “any pertinent policy statement” issued by the Commission [ (a)(5) ]. Although certain factors in § 3553(a) would seem to grant broad discretionary powers to the sentencing judge, especially (a)(1), the nature and circumstances of the offense and the history and the individual characteristics of the defendant, and (a)(2)(A-D), the need for the sentence imposed to serve the traditional goals of punishment, deterrence, protection of the public and rehabilitation, § 3553(b) circumscribes the sentencing judge’s discretion in deviating from the applicable guidelines range. Section 3553(b) explicitly states:
The court shall impose a sentence of the kind, and within the range, referred to in subsection (a)(4) [the applicable guidelines range] unless the court finds that there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence different from that described. In determining whether a circumstance was adequately taken into consideration, the court shall consider only the sentencing guidelines, policy statements, and official commentary of the Sentencing Commission. In the absence of an applicable sentencing guideline, the court shall impose an appropriate sentence, having due regard for the purposes set forth in subsection (a)(2).
Section 3553(b) thus makes clear Congress’ intent that departures under the guidelines were intended to be “quite rare,” contemplated only in “those situations not addressed by the Commission in its guidelines, policy statements, and official commentary.”
United States v. Justice, 877
F.2d 664, 666 (8th Cir.1989) (LEXIS) (Genfed Library, Courts file). Where the applicable guidelines, specific offense characteristics, and adjustments do address a ground for departure, a departure may be warranted in the atypical situation where a defendant’s conduct differs from the norm to an extent or to a degree which could not have been adequately considered by the Commission when formulating the guidelines.
See
Sentencing Guidelines, ch. 1, Part A, subd. 4(b) at 1.6. The Commission itself expressed its belief that “despite the court’s legal freedom to depart from the guidelines, they will not do so very often.”
Id.
at 1.7.
See also United States v. Nuno-Para,
1. Departures for Acceptance of Responsibility and Remorse
Donatiu urges the Court to depart from the applicable guidelines based on his “unparalleled” acceptance of responsibility and remorse. Donatiu points to the probation officer’s comments in his presentence report attesting to his “refreshing” candor and honesty as support for his claim that his acceptance of responsibility is “unique.” Moreover, Donatiu asks the Court to consider his profound sense of shame and em-barassment over his conduct, exemplified by his inability to bring himself to tell his mother that he carried drugs, in making its decision to depart. Donatiu contends that the two-level reduction for acceptance of responsibility as set forth in § 3E1.1 of the guidelines “does not adequately reward a person who has demonstrated a far greater acceptance of responsibility and remorse than the average offender” and that he is entitled to a downward departure. Sen- *623 fencing Mem. at 13. The Court does not agree.
Section 3E1.1 of the guidelines, entitled “Acceptance of Responsibility”, clearly addresses Donatiu’s situation and rewards him for his prompt, voluntary admission of guilt and his candor in speaking with the authorities. At least three factors mentioned in paragraph (1) of the Application Notes to § 3E1.1 specifically apply to Do-natiu:
(c) voluntary and truthful admission to authorities of involvement in the offense and related conduct;
(d) voluntary surrender to authorities promptly after commission of the offense;
(g) the timeliness of the defendant’s conduct in manifesting the acceptance of responsibility.
Sentencing Guidelines, ch. 3, Part E — Acceptance of Responsibility, § 3E1.1 at 3.21. In light of these factors, Donatiu is entitled to a two-level reduction in his offense level. The nature of Donatiu’s “acceptance of responsibility,” however, particularly his promptness in admitting his guilt and the candor he expressed in his dealings with the authorities, were circumstances “adequately taken into consideration by the Sentencing Commission,” and therefore cannot be deemed a basis for a departure under § 3553(b). 1
2. Substantial Assistance Departures under Section 5K1.1
Section 5K1.1 of the guidelines is the policy statement within the guidelines which governs departures based on a defendant’s “substantial assistance.” Section 5K1.1 provides: “Upon motion of the government stating that the defendant has made a good faith effort to provide substantial assistance in the investigation or prosecution of another person who has committed an offense, the court may depart from the guidelines.” Sentencing Guidelines, ch. 5, Part K — Departures, § 5K1.1 at 5.35-5.36 (emphasis added). Donatiu challenges § 5K1.1 on many different grounds, each centering on the requirement that the government must bring a motion in order for a court to depart based on a defendant’s substantial assistance, a motion which the government has steadfastly refused to bring in this case. Donatiu first argues that a court may depart from the applicable guidelines range even in the absence of a government motion. If the Court finds, however, that a government motion is a prerequisite to a “substantial assistance” departure, Dona-tiu contends that § 5K1.1 is invalid because it exceeds the mandate given to the Sentencing Commission under 28 U.S.C. § 994(n) and because § 5K1.1 violates due process, both on its face, and as applied to his case.
a) Section 5K1.1 ’s Requirement of a Government Motion
In order to circumvent the clear mandate of § 5K1.1 that a motion must be brought by the government, Donatiu argues that the Court need not follow § 5K1.1 because it is a “non-binding” policy statement. Donatiu supports his argument by contrasting the statutory language of § 3553(b) which states that a court “shall impose ” a sentence within the applicable guideline range with the lan *624 guage in § 3553(a)(5) which states only that a court “shall consider ” policy statements in imposing sentence. Thus, Donatiu argues that while district courts are mandated to consider and to impose a sentence within the sentencing guidelines, they are only mandated to consider policy statements. Sentencing Mem. at 17.
The Court agrees that policy statements under the guidelines generally are not binding on courts. However, in the context of departures under the guidelines which are governed by § 3553(b), the Court must follow § 5K1.1 even though it is described by the Commission as a “policy statement.” As previously discussed, § 3553(b) requires a court to impose a sentence under the guidelines unless the Court finds a circumstance not adequately considered by the Sentencing Commission. Section 3553(b) further directs courts that they may only consider the guidelines, the policy statements, and official commentary in determining whether the Sentencing Commission adequately considered a circumstance for departure. If the Commission did consider the circumstance in a policy statement, as it clearly did with a defendant’s “substantial assistance” in § 5K1.1, the court must follow § 5K1.1 in order to depart.
See United States v. Justice,
In holding that a court must follow § 5K1.1 in departing from a guidelines sentence based on a defendant’s substantial assistance, the court is necessarily holding that it may not depart unless the government first brings a motion. To accept Do-natiu’s argument that as a non-binding policy statement without the force of law, the court need only consider § 5K1.1 but need not follow it “to the letter” would open the door for a court to depart from the guidelines on its own motion or on the defendant’s motion for a “substantial assistance” departure. Although one court has apparently endorsed this position,
see United States v. Amesquita-Padilla,
Two cases cited by Donatiu,
United States v. White,
§ 5K1.1 is predicated on the reasonable assumption that the government is in the best position to supply the Court with an accurate report of the extent and effectiveness of defendant’s assistance and that it would be the rarest of cases in which the government would be unwilling to recognize such assistance. This policy statement obviously does not preclude a district court from entertaining a defendant’s showing that the government is refusing to recognize such substantial assistance.
In
United States v. Justice, supra,
the Eighth Circuit held that § 5K1.1 provided a “clear mandate requiring a motion before a court may depart below the guidelines,” and further recognized that “in order to nullify” this clear mandate, it would have to hold either that § 5K1.1 was unconstitutional or that it was inconsistent with the Congressional directive in 28 U.S.C. § 994(n).
While we recognize that § 5K1.1 allows the district court, upon motion by the government, to depart below the guidelines to reward a defendant’s cooperation, we are not positive that this provision, in the absence of a motion by the government, would divest a sentencing court of the authority to depart below the guidelines in recognition of a defendant’s clearly established and recognized substantial assistance to the authorities. We believe that in an appropriate case the district court may be empowered to grant a departure notwithstanding the government’s refusal to motion the sentencing court if the defendant can establish the fact of his substantial assistance to authorities as outlined above. Nevertheless, we are not prepared to decide this issue based on the record currently before us.
Id. at 668-669. By declining to reach the issue of whether § 5K1.1 is unconstitutional or in conflict with § 994(n), the Eighth Circuit left in place a scheme which mandates that a government motion be brought before a court may depart.
Although the dictum in
Justice
does not control or affect this Court’s holding that § 5K1.1 requires a government motion, the Court finds the
Justice
opinion instructive in starting to answer the questions of what constitutes the “rare” case and what is the “remedy” for a defendant in the “rare” case left lingering after
White.
In
Justice,
Another remedy fashioned by courts has been the specific enforcement of cooperation agreements or clauses in plea agreements which provide that the government will file a § 5K1.1 motion.
See United States v. Rexach,
If it is determined by this office that Domingo Rexach has made a good faith effort to provide substantial assistance in the investigation or prosecution of another person ... this Office will file a motion ... pursuant to Section 5K1.1 ... advising the sentencing Judge of all relevant facts pertaining to that determination and requesting the Court to sentence Domingo Rexach in light of the factors set forth in Section 5Kl.1(1)(1)-(5) ...
Similarly, the defendant in
Galan
moved to compel the government to make a motion for downward departure under § 3553(e) and § 5K1.1.
The Court has cited Coleman, Rex-ach, and Galan as examples of the circumstances in which courts have entertained a defendant’s showing that the government has acted in bad faith in refusing to move for a departure and the remedies which courts have fashioned in these circumstances, and does not necessarily endorse the positions taken by the courts on these issues. The “rare” circumstances and remedies contemplated by these courts include the specific enforcement of a government promise to move for a departure in the situation where the government has acted in “bad faith”, or treatment of a government filing which describes in detail the nature, extent, and effectiveness of a defendant’s substantial assistance as a § 5K1.1 motion in the circumstance where the government concedes the defendant’s substantial assistance yet refuses to file such a motion. Neither of these circumstances is present in the instant case. The defendant does not allege that the government ever promised to file a § 5K1.1 motion; indeed, it is unlikely that such a promise ever was made given that there is no plea agreement and that most of defendant’s alleged substantial assistance occurred immediately after his arrest and prior to any plea negotiations. Nor is this a situation where the government has virtually admitted that Donatiu provided substantial assistance in the prosecution of other persons involved in Donatiu’s offense; the government has argued that while Donatiu cooperated in good faith, his efforts were largely unhelpful and in fact, pale in comparison to the efforts of others, on whose behalf the government has filed § 5K1.1 motions in this District.
Donatiu makes a strong argument based on the language of § 5K1.1 that all that he needs to do to qualify for a government motion is to “make a good faith effort to provide substantial assistance in the investigation or prosecution of another who has committed an offense.”
See Justice, supra,
*628 b) Invalidity of § 5K1.1 on Statutory Grounds
In 28 U.S.C. § 994, Congress set forth the duties of the Sentencing Commission. Paragraph (n) of that section provides, in pertinent part: “The Commission shall assure that the guidelines reflect the general appropriateness of imposing a lower sentence than would otherwise be imposed, to take into account a defendant’s substantial assistance in the investigation or prosecution of another person who has committed an offense.” 28 U.S.C. § 994(n). Donatiu argues that the Commission failed to implement this statutory directive by drafting a policy statement, § 5K1.1, which imposes the additional requirement that a substantial assistance motion be brought by the government. Donatiu argues that by imposing this additional requirement, the Commission substituted a policy that substantial assistance departures will be “rarely appropriate” in place of the Congressional directive that such departures be “generally appropriate.”
The two courts of appeal that have addressed this issue have rejected Donatiu’s argument.
United States v. Ayarza,
B. Constitutional Attacks on § 5K1.1 on Due Process Grounds
1. Facial Challenge to § 5K1.1
Donatiu argues that § 5K1.1 violates due process, on its face, for two reasons: (1) it shifts sentencing authority to the prosecution by allowing prosecutors to decide his sentence by simply refusing to make a motion; and (2) it deprives a defendant of the meaningful opportunity to be heard by preventing a judge from considering all relevant evidence in determining an appropriate sentence. The Court finds neither argument persuasive.
Initially, the Court notes that Donatiu has greatly overstated his case. In rejecting similar constitutional attacks on § 3553(e)’s requirement of a government motion, two courts of appeals have correctly held that the requirement does not shift sentencing authority to prosecutors.
United States v. Huerta,
More fundamentally, both of Donatiu’s due process challenges rest on the erroneous premise that the judicial function of sentencing and judicial discretion cannot be circumscribed. Most recently, in
Mistretta v. U.S.,
— U.S. -,
Finally, the Court views Donatiu’s argument that § 5K1.1 denies him a meaningful opportunity to be heard to be merely a variant of the due process claim for “individualized sentencing” which this circuit and other circuits have soundly rejected.
See, e.g., United States v. Pinto,
2. Due Process Challenge to Government’s Application of § 5K1.1
Donatiu also contends that the government’s conduct in refusing to move for a substantial assistance departure
in his case
violates “due process.” To prevail on his claim, Donatiu must demonstrate that the government’s conduct in this case “shocks the conscience,”
Rochin v. California,
Donatiu argues that the government’s conduct in refusing to certify his substantial assistance to the Court was outrageous and in “bad faith.” In order to bring this “bad faith” to the Court’s attention, Dona-tiu asks the Court for permission to allow him to disclose specifics about the plea negotiations with the government. Dona-tiu recognizes that there is a long-standing tradition in this district against such disclosures, but argues that breach of this tradition is necessary in order to show how the government has violated his due process rights. In support of his request to file an affidavit describing the outrageous conduct in plea negotiations, Donatiu cites to United States v. Coleman, supra, and United States v. Galan, supra, two cases discussed at length earlier in this opinion.
Coleman
and
Galan
are both distinguishable from the instant case. In
Ga-lan,
the question of “bad faith” was a necessary inquiry to determine whether the government had breached a specific condition of its
plea agreement,
wherein the government had agreed to move for a downward departure if the defendant provided “substantial assistance.” If the court determined that the government had acted in “bad faith,” the defendant would have been entitled to specific enforcement of the condition. Similarly, the disclosure of plea negotiations in
Coleman
was critical to explore statements made by the prosecutor to defense counsel that letters sent by her office to the court advising the court of the defendant’s assistance and cooperation were the legal equivalent of a § 3553(e) departure motion.
Moreover, unlike
Coleman,
the Court here is not faced with a situation where the defendant’s substantial assistance is beyond dispute. In
Coleman,
the prosecutor sent letters to the court outlining the nature, extent, and importance of the defendants’ assistance and describing such assistance in “glowing” terms.
IV. CONCLUSION
For all the reasons discussed above, Do-natiu’s motion for a downward departure *631 from the applicable sentencing guideline range is denied.
Notes
. Donatiu asks the Court to consider his profound sense of shame over his actions as a factor in the departure analysis separate and apart from his acceptance of responsibility. The Court believes that a defendant’s shame is not worthy of separate or special consideration under the guidelines. In the "Background" section to the Commentary of § 3E1.1, the Commission recognized that "shame” is not a factor to be considered until a defendant demonstrates that his remorse is "sincere” by affirmatively demonstrating his "acceptance of responsibility.” Sentencing Guidelines, ch. 3, Part E — Acceptance of Responsibility, § 3E1.1 at 3.22. Thus a defendant’s remorse or sense of shame is accounted for in the "acceptance of responsibility” analysis. Even if a defendant’s shame was not considered by the Commission, the Court doubts that the mere expression of “shame" alone would merit "special consideration” in the departure analysis. It is this Court’s experience from its many pre-guidelines sentencings that most defendants are "sorry” and embarrassed for their actions. Absent some kind of affirmative action showing "acceptance of responsibility," it would be almost impossible for a Court to differentiate between those defendants who are sincerely sorry from those who are just sorry that they were caught.
. This Court was one of a number of courts in this district to hold the guidelines unconstitutional before the United States Supreme Court's decision in
Mistretta v. United States,
— U.S. -,
The best way to draw attention to faulty legislation is to enforce to the letter. Though many individuals, our federal system of criminal justice and the taxpayers will suffer, this regretful suffering should cause a reconsideration of minimum mandatory sentencing.
Federal Sentencing Reporter, February/March 1989 at 324. Although it is unclear whether Mr. McCarthy’s comments were restricted to mandatory minimum sentencing statutes such as § 3553(e), the Court finds his analysis can easily be applied to sentencing generally under the guidelines.
. The defendants in
Coleman
were subject to the mandatory minimum sentencing provisions of
*626
18 U.S.C. § 3553(e). The court held that it was unnecessary for the government to file two separate departure motions, one under § 3553(e) and one under § 5K1.1, in order to advise the court of a particular defendant’s substantial assistance.
. Were it necessary for the Court to determine whether Donatiu was entitled to a departure based on his good faith efforts to provide substantial assistance, the Court would be inclined not to grant Donatiu a departure based on his efforts here. The record reveals that Donatiu provided the government with little more than the name of his source. Although Donatiu
*628
agreed to phone his source and later met with the government to provide more details, the government contends that "nothing of value was obtained by defendant’s attempted cooperation other than his guilty plea.” Government Reply at 9: Donatiu’s argument that the government must give its reasons for not indicting [the source] "asks the Court to intrude upon an area of prosecutorial discretion — charging decisions — which is exclusively within the prosecutor’s domain,
see United States v. Batchfelder,
. Moreover, Donatiu's argument that Congress intended for "substantial assistance" departures to be "generally appropriate” must be rejected in light of § 3553(b). As discussed earlier in this opinion, Congress' clear intent in drafting § 3553(b), which specifies the procedure for departures under the guidelines, was to make departures the limited exception rather than the general rule.
. It is also an overstatement to say that information relating to a defendant’s substantial assistance is never considered by the Court if the government refuses to file a § 5K1.1 motion. There is much overlap between § 3E1.1 ("Acceptance of Responsibility”) and § 5K1.1 ("Substantial Assistance to Authorities”) and information relating to a defendant’s substantial assistance may be considered by a court in determining whether to apply a two level sentencing reduction.