United States v. GrantUnited States v. Grant
Lead Opinion
GIBBONS, J., delivered the opinion of the court, in which BATCHELDER, C.J., MARTIN, BOGGS, GILMAN, ROGERS, SUTTON, COOK, McKEAGUE, GRIFFIN, and KETHLEDGE, JJ„ joined. MERRITT, J. (p. 819), delivered a
OPINION
Defendant-appellant Kevin Grant pled guilty to possession of a firearm, conspiracy to commit money laundering, and operation of a continuing criminal enterprise. The district court sentenced Grant to twenty-five years in prison, the mandatory minimum sentence for those charges. After Grant’s sentence was affirmed by a panel of this court, the government filed a motion pursuant to
I.
A.
In 2004, federal agents discovered via an authorized wiretap of Grant’s cellular telephone that Grant headed a heroin distribution ring in the Columbus, Ohio, area. Grant traveled to New York to obtain more than 100 grams of heroin at a time, which he then sold to users in the Columbus area. Grant also “fronted” heroin to at least four distributors for sale to customers during his time in New York. On August 27, 2004, a search warrant was executed at the home that Grant shared with Tia Holley, one of his distributors. Agents seized 168.8 grams of heroin, a 9mm Luger pistol with ammunition, and $4,174 in cash. A search of a separate apartment rented by Grant yielded multiple firearms and ammunition. Grant also stored both heroin and money at the home of Tameka Hairston, the mother of one of his children. Investigators determined that Holley assisted Grant in concealing the illegal source of his income by depositing over $80,000 into her bank account and by submitting a false loan application to purchase a 2004 Lincoln Aviator. Grant also instructed Hairston to wire money from Columbus to an associate in New York in order to conceal the source of the funds.
Grant was indicted on September 23, 2004, for possession with intent to distribute heroin and knowing possession of a firearm in furtherance of a drug-trafficking crime. On January 13, 2005, the government filed a superseding indictment charging an additional eighty-four counts, including conspiracy to commit money laundering and operating a continuing criminal enterprise. Grant subsequently entered into a plea agreement with the government. Under the agreement, Grant agreed to plead guilty to counts 3, 7, and 89 of the superseding indictment in exchange for dismissal of the remaining counts. The parties agreed further that the quantity of heroin attributable to Grant was at least one kilogram but less than three kilograms and that Grant supervised at least five individuals in his heroin business.
On April 15, 2005, Grant pled guilty to the knowing possession of a firearm in furtherance of a drug trafficking crime in violation of
The Presentence Report (“PSR”) first grouped the continuing criminal enterprise and money laundering counts by applying the offense level of the most serious count. See U.S.S.G. § 3D1.2(b) (2004). Operation of a continuing criminal enterprise carries a base offense level of 38, see U.S.S.G. § 2D1.5 (2004), but money laundering takes the offense level of the underlying crime, see U.S.S.G. § 2Sl.l(a)(l) (2004). The PSR then determined that the underlying offense of the money laundering count was the continuing criminal enterprise, and thus the money laundering count carried a base offense level of 38 as well. The specific offense characteristics of money laundering provide for a two-level increase if the defendant was convicted under
Prior to sentencing, the government filed a request for a downward departure pursuant to U.S.S.G. § 5K1.1 (2004). The government explicitly did not request a departure under
B.
On April 16, 2007, the government filed a request for a sentence reduction pursuant to
Grant joined the motion and requested that his sentence be further reduced below sixteen years. Grant argued that a further reduction was warranted because: (a) he provided substantial assistance in the prosecution of his co-conspirators; (b) his cooperation went beyond what was contemplated by the plea agreement because he testified for the state in an Ohio homicide prosecution carrying the death penalty; (c) the evidence that supported the firearm count under
A hearing was held on the
The Court is not here today to talk in terms of resentencing and bringing up issues of the two-point enhancement instead of a five-year consecutive charge. The Court is not here today to determine the scope and breadth of the CCE — that is, continuing criminal enterprise — that was not as extensive as many CCEs and, therefore, a lesser sentence is warranted. The Court is not here to talk about or listen to whether the defendant’s criminal history was overrepresented or whether the money laundering count should be subsumed within the CCE or the defendant’s family background, at all. That has been resolved at previous hearings and, by my thinking, Mr. Grant, resolved in your favor considerably. I’ve got enough to do without redoing things that have been completed, much to the benefit of the defendant, but, Mr. Grant, I’m not going to hold this against you. All I’m going to say is, I am not going to listen to any arguments, now or ever, with regard to sentences that have been agreed upon and which have been imposed.
Transcript of Proceedings at 6-7, United States v. Grant, No. CR-2-04-161 (S.D. Ohio April 27, 2007). After the prosecution clarified that Grant had never actually agreed to the nine-year reduction and had always maintained his right to argue for a greater reduction, the court modified its position slightly, but still reiterated its complete rejection of five of Grant’s seven arguments:
The issues that you’re referring to are guideline issues andSection 3553(a) issues that the Court entertains at the time of sentencing, initially, not at the time of aRule 35 motion. Now, if you want to argue that your assistance has been over and above what everyone defined as being substantial at the outset, then you can argue that, and that’s a relevant argument, and I’m more than willing to listen to that---- But with regard to any guideline argument or any of the other issues that were brought up in the memorandum, I will not listen to.
II.
Before we reach the merits of Grant’s arguments, we must address the government’s argument that we lack jurisdiction to hear this appeal. Where the district court grants a
Although Grant is ultimately seeking a greater reduction to his sentence, on appeal he is arguing that the methodology the district court used to impose his sentence was in violation of the law. Specifically, Grant claims that the district court committed an error of law by misapprehending the factors it was allowed to consider in deciding the
III.
The core issue in this appeal is whether a district court may consider factors outside the value of the substantial assistance provided by a defendant in ruling on a
Based on differences between the texts of
We consider Grant’s arguments in turn and reject them.
A.
We first look to the text of
As a general matter,
(1) In General. Upon the government’s motion made within one year of sentencing, the court may reduce a sentence if:
(A) the defendant, after sentencing, provided substantial assistance in investigating or prosecuting another person; and
(B) reducing the sentence accords with the Sentencing commission’s guidelines and policy statements.2
Subsection (b)(2), the subsection under which the government requested Grant’s reduction, then describes the circumstances under which a motion filed more than one year after sentencing may be granted:
(A) information not known to the defendant until one year or more after sentencing;
(B) information provided by the defendant to the government within one year of sentencing, but which did not become useful to the government until more than one year after sentencing; or
(C) information the usefulness of which could not reasonably have been anticipated by the defendant until more than one year after sentencing and which was promptly provided to the government after its usefulness was reasonably apparent to the defendant.
The text of the rule does not tell us whether it authorizes district courts to look to
We can, however, glean some guidance from the context of the rule, including its title. The title of
B.
Grant argues that
Correction of Sentence for Changed Circumstances. The court, on motion of the Government, may within one year after the imposition of a sentence, lower a sentence to reflect a defendant’s subsequent, substantial assistance in the investigation or prosecution of another person who has committed an offense, to the extent that such assistance is a factor in applicable guidelines or policy statements issued by the Sentencing Commission pursuant to 28 U.S.C. 994(a).
Sentencing Reform Act of 1984, Pub.L. No. 98-473, § 215, 98 Stat.2016. The Sentencing Reform Act also created
Modification of an Imposed Term of Imprisonment. The court may not modify a term of imprisonment once it has been imposed except that — (1) in any case—
(B) the court may modify an imposed term of imprisonment to the extent otherwise expressly permitted by statute or byRule 35 of the Federal Rules of Criminal Procedure .
The authority to depart below mandatory minimum sentences was not given to district courts until the Anti-Drug Abuse Act of 1986, which further amended
Correction of Sentence for Changed Circumstances. The court, on motion of the Government, may within one year after the imposition of a sentence, lowera sentence to reflect a defendant’s subsequent, substantial assistance in the investigation or prosecution of another person who has committed an offense, in accordance with the guidelines and policy statements issued by the Sentencing Commission pursuant to section 994 of title 28, United States Code. The court’s authority to lower a sentence under this subdivision includes the authority to lower such sentence to a level below that established by statute as a minimum sentence.
Anti-Drug Abuse Act of 1986, Pub.L. No. 99-570, § 1009, 100 Stat. 3207-8. The same Act also created
(e) Limited authority to impose a sentence below a statutory minimum. Upon motion of the Government, the court shall have the authority to impose a sentence below a level established by statute as a minimum sentence so as to reflect a defendant’s substantial assistance in the investigation or prosecution of another person who has committed an offense. Such sentence shall be imposed in accordance with the guidelines and policy statements issued by the Sentencing Commission pursuant to section 994 of title 28, United States Code.
Anti-Drug Abuse Act of 1986, Pub.L. No. 99-570, § 1007, 100 Stat. 3207-7 (codified at
At the time they went into effect,
We have rejected the notion that factors not related to cooperation may be consid
Section 3553(e) has remained unchanged since its enactment, while
In United States v. Poland, the First Circuit recognized the obvious tension between the amendment’s deletion of the rule’s “to reflect” language and the advisory committee’s assertion that the change was purely stylistic.
At most, the 2002 amendment injected a bit of ambiguity into the text of
C.
Grant also argues that, even if
D.
Finally, Grant suggests that the procedural posture of his case requires that the § 3553(a) factors be considered in connection with the government’s
This argument is problematic. Whether Grant’s original sentencing hearing included full consideration of § 3553(a) factors is immaterial to his original sentence. The district court gave him the lowest possible legal sentence. And application of § 3553(a) is not constitutionally required. The provision thus has no status beyond that which it is given by statute or rule in a given context. Courts routinely sentence defendants according to mandatory mínimums and do so without reference to the § 3553(a) factors because the relevant statutes restrict their discretion. See United States v. Penney,
IV.
Our conclusion that the § 3553(a) factors have no role in
When faced with a
The role that we have outlined for district courts in the resolution of a
The appropriate balancing of the determinative factors tied to a defendant’s substantial assistance is within the sound discretion of the district court and often arises from the specific context of each case. Assigning a number of years or months in prison to a defendant’s cooperation is not a task that can be carried out with mathematical certainty. One district judge might decline to consider the contextual factors we mention; another might deem them useful. The choice is that of the district court. Contrary to the fears of the dissent about district court “confusion,” district judges are fully capable of weighing the contextual factors we mention, as appropriate, and ultimately arriving at a conclusion as to the extent of any reduction.
One unfortunate consequence of accepting Grant’s arguments would have been creating unwarranted sentencing disparities between defendants, like Grant, whose cooperation with the government occurs at least in part after sentencing and those who, by happenstance, complete their cooperation before sentencing. Under Grant’s scenario, defendants in his situation would receive full consideration of § 3553(a) factors in connection with a reduction below a mandatory minimum, while those sentenced pursuant to a motion under § 3553(e) would not. See Bullard,
The practical implications of this decision are quite similar to those of our sister circuits. Cf. Shelby,
V.
Having decided the core issue in this case, we briefly dispose of Grant’s argument that his Guidelines range was improperly calculated by the district court at his original sentencing hearing. We recognize that there is uncertainty as to whether it is appropriate to consider the district court’s original Guidelines calculation in reviewing an issue arising from a subsequent
The district court used continuing criminal enterprise as the underlying crime for the money laundering count. Grant argues that the district court instead should have found his trafficking of heroin to be the underlying crime for his money laundering count, resulting in an adjusted offense level of 34. Under Grant’s scenario, when the counts were grouped, the continuing criminal enterprise count would then have carried the higher offense level, and Grant would have been left with a total offense level of 35, two points lower than the offense level utilized by the district court. Grant claims that this calculation is important because the government’s recommended sentence reduction was intended to leave Grant with a sentence half the length of his minimum exposure at sentencing.
Heroin trafficking qualifies as one element of the crime of operation of a continuing criminal enterprise. See
We therefore reject Grant’s argument that the resolution of a
Notes
. Based on the framing of the issues in the appellant’s initial brief before the panel in this court, my view, expressed in dissent from the panel opinion, was that we lacked jurisdiction over that part of the appeal challenging the extent of the sentence reduction. That view changed, however, with the iteration of the issues for en banc review.
. The current version of
This change does not impact our analysis of this case, and the dissent inflates its significance by suggesting that the Advisory Committee’s general explanatory language about the import of Booker somehow relates to
. Furthermore, subsection (b)(2) specifies that the district court ''may” grant a sentence reduction “if the defendant’s substantial assistance involved’’ certain factors.
. In addition, the title of Rule 43(b)(4) describes a
. We note also that
. The language in § 3553(e) is identical save for the word “subsequent.'' This reflects the timing differences between the rule and the statute; while § 3553(e) rewarded a defendant’s pre-sentencing cooperation,
. Section 5K1.1 itself does not permit a reduction below a mandatory minimum, although it is often accompanied by a motion under § 3553(e), which does permit such a reduction.
. See United States v. Ahlers,
. Before a Federal Rule of Criminal Procedure can be amended, it must go through a seven-step rulemaking process. After a proposed change to the rule is reviewed and drafted by the appropriate Advisory Committee, the amendment is subject to public notice and comment. The comments are considered and incorporated, and approval is needed from both the Advisory Committee and the Committee on Rules of Practice and Procedure. The full Judicial Conference must also approve the final rule, which is then subject to final approval by the Supreme Court. If accepted, the rule takes effect after Congress has been given at least seven months to reject, modify, or defer it. See generally A Summary for the Bench and Bar, Federal Rules of Practice and Procedure, available at http://www. uscourts.gov/RulesAndPolicies/Federal Rulemaking/RulemakingProcess/Summary BenchBar.aspx.
. Like the First Circuit, we decline to reach the issue of whether the amendment of
. Grant’s reliance on application note 2 of U.S.S.G. § 3D1.3 (2004) is misplaced because the counts being grouped in this case are distinct crimes with separate Guidelines provisions that "involv[e] substantially the same harm” and “transactions connected by a common criminal objective or constituting part of
. The district court may have mistakenly believed that it could not disregard the government’s recommendation and give a lesser reduction. If that is indeed the case, its error was harmless. It is obvious from the record that any reduction given would have been smaller, had the court not accepted the government's recommendation.
Concurrence Opinion
concurring and dissenting.
The question is whether in allowing for departure from mandatory minimum sentences for defendants whose substantial assistance is recognized by the government, Congress intended that the sentencing court be restricted to consideration of only the assistance given, foreclosing consideration of other unrelated circumstances or characteristics of the offense or the defendant.
I
The majority concludes that consideration of other factors is permissible only in evaluating whether the defendant should receive the full sentence reduction that would otherwise correspond to the assistance. As conceded by the majority,
Congressional authority to sentence below the statutory minimum in cases of substantial assistance comes from
(n) The Commission shall assure that the guidelines reflect the general appropriateness of imposing a lower sentence than would otherwise be imposed, including a sentence that is lower than that established by statute as a minimum sentence, to take into account a defendant’s substantial assistance in the investigation or prosecution of another person who has committed an offense.
However, neither the Guidelines nor the policy statements explicitly address sentence reductions under
This history is amply discussed by the majority and dissent. I find nothing in that history that compels either answer to the question presented. Unlike the majority, I find no guidance in
Thus, up to this point in the analysis, I see no compelling argument for either interpretation of
Nevertheless, because I am not convinced that Congress intended one rule to apply to motions under
In this regard, I join in Judge Merritt’s and the dissent’s interpretation of the majority decision to permit a consideration of a broad range of factors, including
II
Although I concur in the majority’s legal conclusion, I dissent from the majority’s application of that conclusion to this case. I would remand for resentencing on the basis that some of the additional arguments Grant sought to advance were arguably relevant in determining the value of his assistance and the appropriate sentence reduction.
overlooks the fact that its own motion for downward departure and motion for aRule 35(b) sentence reduction both used the original guideline sentencing range (as calculated by the probation officer) as the “starting point” for recommending a sentence reduction of 50% of the bottom end of that range. Its current position that “the original sentencing range should not be a consideration” is inconsistent with the position it advocated in the district court.
[Def.’s Final Reply Br. at 7. Citations to record omitted, emphasis in original.] Because the statutory mandatory minimum rendered the “starting point” irrelevant in the initial sentencing proceeding and appeal, Grant argues, the “starting point” must be considered as part of the
Grant’s argument in this regard finds support in the record. The government’s initial sentencing memorandum explained:
By statute, the defendant faces a mandatory minimum sentence of at least twenty-five years in prison.21 U.S.C. § 848 and18 U.S.C. § 924(c) . This motion for reduction has been made solely pursuant to U.S.S.G. § 5K1.1 and not under18 U.S.C. § 3553(e) . Thus, the twenty-five year mandatory sentence by statute still applies.
Conclusion
In the opinion of government counsel and the investigating agents, Kevin Grant’s cooperation, to date, warrants a seven year reduction in sentence at this time. Under the advisory sentencing guideline range applicable in his case, a seven year reduction would require a three offense-level reduction to an offense level 34, criminal history category V (235 to 293 months in prison).
Based upon the defendant’s cooperation to date, the United States recommends a sentence of 25 years in prison at this time. We believe such a sentence takes into account all of the relevant sentencing factors outline in18 U.S.C. § 3553(a) ,[3 ] as well as his cooperation to date.
If the defendant continues to cooperate with authorities and testifies truthfully, if necessary, at trials of individuals about whom he has evidence of their criminal activities, the United States will consider filing a motion, pursuant to Rule 35 of the Federal Rules of Criminal Procedure , requesting a further reduction in sentence. Provided the defendant meets all of his commitments, once his cooperation is completed, the United States will recommend a total sentence of 16 years in prison (an additional reduction of nine years). Such a recommendation would result in a 50% reduction in the sentence recommended under the advisory guidelines (384 to 402 months in prison).
Consistent with its earlier position, the governments’s
In the opinion of government counsel and the investigating agents, Kevin Grant’s cooperation, to date, warrants a reduction in sentence from 25 to 16 years in prison. This would be a 50% reduction from the original advisory guideline range applicable to the facts underlying his conviction. We believe such a sentence takes into account all of the relevant sentencing factors outlined in18 U.S.C. § 3553(a) , as well as the defendant’s cooperation.[4 ]
It is not clear whether there was, in fact, an understanding that Grant would ultimately receive a sentence equal to one-half of the otherwise applicable Guidelines minimum. And, clearly, if there had been such an understanding, it would not have been binding on the court. Nevertheless, the Guidelines themselves make the government’s estimation of the value of the assistance a relevant consideration, and if the government had at one point valued the assistance as worth a reduction to one-half of the otherwise applicable Guidelines sentence, that fact had potential relevance to the
I would remand for resentencing within the framework announced by the majority, with instructions to consider Grant’s arguments as they may be relevant to determining a sentence that appropriately reflects his substantial assistance.
.
Limited authority to impose a sentence below a statutory minimum. — Upon motion of the Government, the court shall have the authority to impose a sentence below a level established by statute as a minimum sentence so as to reflect a defendant’s substantial assistance in the investigation or prosecution of another person who has committed an offense. Such sentence shall be imposed in accordance with the guidelines and policy statements issued by the Sentencing Commission pursuant to section 994 of title 28, United States Code.
. Footnote 2 of the panel majority opinion states:
Grant also argues that the prosecution and the District Court sought to reduce his sentence to a number equal to half of his original Guidelines range, but that errors in the initial sentencing calculation resulted in a higher “starting point," and hence a higher post-reduction sentence than what he would have received absent legal error. We conclude that his Guidelines range was calculated correctly, though, thus rendering moot the question of whether any such alleged error could be the basis for reversal.
The majority opinion does not elaborate on that conclusion. And, as noted by the era banc majority, the panel addressing Grant’s initial appeal declined to address the scoring issues because any alleged errors were rendered harmless by the statutory mandatory minimum sentence. United States v. Grant,
. The government’s reference to and reliance on the
. The original panel majority observed this inconsistency in the government’s position. United States v. Grant,
Dissenting Opinion
dissenting,
In an apparent attempt to craft a tacit compromise, the en banc majority and concurring opinions shift their focus away from Petitioner and instead create an unmanageable legal standard. Because the district court erroneously concluded that it may not consider the factors enumerated in
District courts are instructed by the majority opinion, on the one hand, that
The difficulties with the majority opinion are compounded by the ambiguous nature of its holding. It is unclear whether the majority would hold that the district court properly exercised its discretion in not considering
The lack of clarity in the majority’s opinion is perhaps best exemplified by the majority’s apparent misapplication of its own standard. Whatever the precise nature of the majority’s holding, the majority at a minimum makes clear that a district court may, in its discretion, consider additional factors to value a defendant’s substantial assistance. (See Maj. Op. § IV.) In this case, the district court “[would] not listen to” Petitioner’s arguments about, for instance, his criminal history and the circumstances of his underlying conviction, reasoning that these issues are “not [entertained] at the time of a
A. District Court’s Discretion on Re-sentencing Under
The majority’s erroneous disposition of this case is grounded in a misinterpretation of
Turning to the text of
(1) In General. Upon the government’s motion made within one year of sentencing, the court may reduce a sentence if the defendant, after sentencing, provided substantial assistance in investigating or prosecuting another person.
(2) Later Motion. Upon the government’s motion made more than one year after sentencing, the court may reduce a sentence if the defendant’s substantial assistance involved [certain information which became known or useful after one year as detailed byRule 35(b)(2) ].
Prior to the 2002 amendments to the Rules, former
This change in the plain language of the Rule is significant. Whereas the word “reflect” suggests the latter taking into account the former, the word “if’ denotes merely a condition precedent.
As the majority points out, the Advisory Committee on Criminal Rules (“Advisory Committee”) did not intend the 2002 amendments to change the meaning of the Rules. The Advisory Committee reported that many of the changes were part of a “general restyling of the Criminal Rules to make them more easily understood.”
The majority overlooks the significance of 2007 amendments to the Rules and the accompanying Advisory Committee notes. One such amendment eliminated
Upon the government’s motion made within one year after sentencing, the court may reduce a sentence if:
(A) the defendant, after sentencing, provided substantial assistance in investigating or prosecuting another person; and
(B) reducing the sentence accords with the Sentencing Commission’s guidelines and policy statements.
That the application of
Now that
In fact, although ignored by the majority, application of the
Although we have held that district courts may consider only the extent of a defendant’s cooperation on a pre-sentence motion for a downward departure under
Contrary to the position taken by the majority, the district court had the discretion to consider the § 3553(a) factors in the context of a
B. Timeliness of Petitioner’s Arguments
In this case, following the government’s
At the hearing on the government’s
The Court is not here today to talk in terms of resentencing and bringing up issues of the two-point enhancement instead of a five-year consecutive charge. The Court is not here today to determine the scope and breadth of the ... continuing criminal enterprise that was not as extensive as many [such enterprises] and, therefore, a lesser sentence is warranted. The Court is not here to talk about or listen to whether the defendant’s criminal history was overrepresented or whether the money laundering count should be subsumed within the [continuing criminal enterprise] or the defendant’s family background, at all.... All Pm going to say is, I am not going to listen to any arguments, now or ever, with regard to sentences that have been agreed upon and which have been imposed.
(Tr. at 6-7.) The government responded that Petitioner had maintained his right to argue for a greater reduction. The district court then stated as follows:
The issues that you’re referring to are guideline issues and Section 3553(a) issues that the Court entertains at the time of sentencing, initially, not at the time of aRule 35 motion. Now, if you want to argue that your assistance has been over and above what everyone defined as being substantial at the outset, then you can argue that, and that’s a relevant argument, and I’m more than willing to listen to that.... But with regard to any guideline argument or any of the other issues that were brought up in the memorandum, I will not listen to.
(Id. at 10-11.)
As the transcript of the proceedings before the district court makes clear, the court summarily dismissed five of Petitioner’s six arguments as untimely. This was error, inasmuch as the district court had the discretion to hear the balance of Petitioner’s arguments. Since the district court erroneously found that it could not— rather than would not — consider these arguments, the decision should be vacated and the case remanded to the district court for reconsideration. See, e.g., United States v. Chapman,
C. Conclusion
The proper disposition of this case would consist of this Court vacating the decision of the district court and remanding the case for reconsideration. On remand, the district court should be instructed to consider, in its discretion, whether it is appropriate to apply the § 3553(a) factors, and to the extent Petitioner’s arguments do not fit within that statutory section (see supra note 1), whether it is appropriate to consider Petitioner’s additional arguments for a sentencing reduction as well.
For the reasons stated above, I respectfully dissent.
. The district court, the parties, and the majority assume, perhaps erroneously, that each of the factors advanced by Petitioner before the district court fall within the scope of § 3553(a). For purposes of this dissent, that assumption is not disturbed. But to the extent Petitioner's arguments fall outside the scope of § 3553(a), the district court, in its discretion, must consider whether it is appropriate to apply those additional factors as well for the reasons stated herein.
. The majority focuses on the word "confusion” to misstate the dissent’s argument. Contrary to the majority’s view, no fair reading of this dissent suggests that district judges are not "capable of weighing the contextual factors” discussed by the majority. (Maj. Op. at 817.) Rather, confusion is likely to arise because the majority’s opinion, given its internal inconsistencies and ambiguities, fails to adequately instruct district courts on the proper standard to apply. The dissent does not doubt the ability of district judges to apply the proper legal standard had the majority announced a clear standard to apply.
. The majority does not disagree. (See Maj. Op. at 816-17 ("When faced with a
. The majority makes the baffling assertion that the dissent "inflates” the significance of the amendments to the Rules following Booker. (Maj. Op. at 810 n. 2.) Yet the majority does not endeavor to analyze the persuasive value of the 2007 Amendments, and the majority thereby itself inflates the dissent’s reliance on the 2007 Amendments. Not only is the significance of the 2007 Amendments collateral to the dissent’s preferred disposition of this case, but the majority completely writes off any value of the 2007 Amendments to
. In somewhat cryptic language, the majority acknowledges that
Concurrence Opinion
concurring.
While insisting that in re-sentencing for substantial assistance a court need not reconsider all of the § 3553(a) factors that need to be considered at the original sentencing, our Court’s opinion in the instant case states that the sentencing judge may consider a wide variety of sentences, including “consistency with the statutory sentencing factors, in order to make sure that the reduced sentence is not unjust.” The Court goes on to say that the district judge might wish to consider the “context” that determined the initial sentence in valuing the assistance, as well as taking into account “a consideration of a defendant’s capacity for abiding by the law.” The Court makes it clear that the sentencing court may weigh “these sorts of contextual considerations after initially being considered by a district court in determining the value of cooperation and the extent of any reduction under § 3553(e) and § 5K1.1.”
I concur in the court’s disposition of this case because it gives the district court wide discretion to go above or below the government’s recommendation in substantial assistance cases. I believe this wide discretion gives the district court room in its reconsideration of the sentence to do justice in the case and avoid a sentencing process in which the prosecutor rather than a neutral magistrate controls the sentence.