*2 SMITH, WIENER, Before DUHÉ and Judges. Circuit DUHÉ, Judge: Circuit
BACKGROUND
(“Government”)
appeals
United States
district
court’s decision
down-
ward five levels
on the
defendant’s
prosecution
assistance to the
and to sentence
(“Solis”)
Rumaldo Solis
at offense level 32.
contends
Solis should
have been sentenced at offense level 35.
Immigration
Solis
ais
former
and Natural-
Inspector
ization
who
involved in
a ma-
jor drug conspiracy through which cocaine
marijuana
imported
were
into the United
tencing guidelines;
range
or outside
drug
traffickers
States.
sentencing guideline
activities and
and is
on law enforcement
information
Garcia,
plead-
as a
broker. He
served
narcotics
unreasonable.” United States v.
also
(5th Cir.1992).
pursuant
plea agreement which
guilty
to a
ed
480-81
*3
move
that
the Government would
granted
court
a
The district
Solis
departure under
a downward
U.S.S.G.
departure pursuant
five-level downward
if
that he provided
§
it determined
5K1.1
‘safety
provision
§
Ҥ
is a
5C1.2.
5C1.2
valve’
substantial assistance.
qualified
escape
which allows
defendants to
sentencing, the
indi-
Prior to
Government
applicable statutory
the
minimum sentence.”
for a
that it
not move
downward
cated
would
(5th
Edwards,
430,
v.
F.3d
U.S.
65
433
Cir.
safety
for a
valve
departure. Solis moved
case,
In this
the Guideline
Despite
§
adjustment under
5C1.2.
U.S.S.G.
range is
the
minimum
higher
statutory
than
§
make a
refusal to
5K1.1
the Government’s
thus,
and,
§
not apply.1
does
There
5C1.2
granted
the
Solis a five-
district court
fore,
depart
it
error for the district to
was
departure.
granting
In
the
level downward
pursuant
§
the
from
Guidelines
5C1.2. See
adjustment,
although
that
it
court stated
(5th
143,
v.
Flanagan,
147 n.
were
or
questions
not know what
asked
did
Cir.1996).
Solis,
sought from
it
what information was
sup-
in
appeared from the affidavit submitted
misapplied
Because the district court
occurred
port of his motion that discussions
5C1.2,
§
is
unless
appropriate
a “remand
many
investigation,
areas
to the
relevant
whole,
conclude[],
[we]
on
record as a
substantial
sufficient
establish
assistance.
harmless,
i.e.,
error was
unsuccessfully objected
did not affect the district court’s selec
error
5C1.2,
imposed.”
§
v.
application
arguing
court’s
of
tion of the
to the
sentence
Williams
U.S.,
193, 203, 112
1112,
depart
that it did not allow the court
503 U.S.
S.Ct.
(“Guidelines”).
1120-21,
Sentencing
the follow
Guidelines
L.Ed.2d
For
reasons,
Contending
ing
conclude
the district
the district court should
granted only
un-
affect
im
have
a two-level reduction
court’s error did not
the sentence
2Dl.l(b)(6),
therefore,
and,
§
posed
affirm.
der U.S.S.G.
Government
appeals.
sentencing transcript
shows that
departure
largely
was
the downward
DISCUSSION
to the
on Solis’s assistance
Government.
We review a district court’s find
that, according
to the Defen
noted
its
ings
application
of fact for clear error and
affidavit,
was
on four
dant’s
debriefed
Sentencing
de novo.
of
Guidelines
Unit
topics.
of
occasions on a substantial number
662,
Stevenson,
126 F.3d
ed States
debriefings covered
Concluding that
these
Cir.1997).
under
Downward
investigation,
topics
relevant to the
that were
§
of
5K2.0 are reviewed
abuse
U.S.S.G.
for a
granted
the court
the defense motion
v. Lugman,
States
discretion.
United
five-level downward
113,
(5th Cir.1997),
cert. de
—nied,
--,
error in
is one
The district court’s
this case
form,
Although the
(1998)(citing Koon v.
not of substance.
United
5C1.2,
States,
81, 98-100,
departure
by §
authorized
was not
(1996)).
§
the Sen-
sentencing
5K2.0 al
tencing
in certain circumstances.
applicable
from the
Guidelines
lows courts
sentencing
“impose
range
§
court to
certain circumstances.
5K2.0 allows
Guideline
range
by
will
review
it
a sentence outside
established
upheld
A
be
on
unless
sentence
law;
finds
guideline,
“imposed
imposed
in violation of
as
mitigat-
aggravating
an
application of
sen-
‘that there exists
a result of incorrect
undisputed
set
5C1.2.
because
the criteria
forth in
It
that Solis was entitled to a
he met
2D1.1(b)(6)
twodevel
under U.S.S.G.
reduction
degree,
ing
circumstance of a kind or to
without a
by
adequately taken into
encompassed by
equiv-
consideration
motion is neither
nor
formulating
mentioned,
Commission
encouraged,
alent to
or dis-
guidelines that
in a sentence
should result
couraged
adequate-
and was thus not
”
different from that described.’
U.S.S.G.
ly
at
Commission.” Id.
3553(b)).
(quoting
5K2.0
18 U.S.C.
1203. The court reasoned that
does
5K1.1
adequate
not constitute
be-
consideration
The fact that the
address
apply
does not
cause
without a Gov-
issue
assistance to authorities does not
994(n)
ernment motion
“ex-
U.S.,
preclude departure.
In
Koon
plicitly
directed
Commission to assure
concluded:
Court
guidelines
general
reflect the
appro-
federal court’s examination of wheth-
[A]
*4
priateness
lesser
of
sentences for defendants
appropriate
a factor can
er
ever be an
substantially
prosecution.”
who
assist
the
for
to
basis
is limited
determin-
Id. at 1204.
ing
pro-
whether
has
Commission
scribed,
matter,
categorical
as a
consider-
persuaded by
areWe
the D.C. Cir
of
ation
the factor.
If the answer is no-as
and,
reasoning in
cuit’s
In re Sealed Case
will be
sentencing
it
most of the time-the
therefore, adopt it.2 We hold that “even
court must determine
whether
government
where the
files no
Koon
occurring
particular
as
in the
circum-
depart
authorizes
courts
district
to
from the
stances, takes the case out of the heartland
a
Guidelines based on defendant’s substantial
of
Guideline.
assistance where circumstances take
case
81, 108,
2035, 2051,
U.S.
guideline
out of the relevant
Id.
heartland.”
(1996).
See also
v. Deth
giveWe
substantial deference to the district
(1st
lefs, 123 F.3d
Cir.1997)(holding
in
depart
court’s decision
from the Guide
light
departures
of Koon that downward
Koon,
96-98,
2046;
lines.
at
S.Ct. at
judicial
on
based
conservation of
resources
Case,
Sealed
149 F.3d at
that
(stating
resulting
plea
from
categorically
a
are not
“we
to the
leave it
district court to
define
prohibited).
case.”).
particular
a
‘heartland’ for
Case,
In In re Sealed
the D.C. Circuit
case,
In the instant
the district court did
recently
that,
Koon,
light
held
of
district
departing
abuse its discretion
from
may depart
courts
from
despite
the Guidelines
im-
fact that
it
on a
defendant’s substantial assistance
properly
authority
cited
5C1.2
its
without a Government
as
motion. 149 F.3d
(D.C.Cir.1998).
Noting
1201-04
The district court found
that Sol-
prohibit
depar-
the Guidelines do not
a
at
such
was debriefed
least four times
ture, the
debriefings
subjects
court concluded that “a substantial
covered
that were
Case,
Judge
Further,
Smith maintains that
5K1.1 indicates
In re Sealed
on Koon
2035,
District courts into ac- adequately
cumstances “not taken guidelines. in the
count” 3553(b). majority agrees “ Sealed Case ‘a substantial America, UNITED STATES departure without a Plaintiff-Appellee, equiv- encompassed by nor motion is neither mentioned, encouraged, or dis- alent to VILLALOBOS, Jr., Bivian adequately thus couraged and was ” Defendant-Appellant. by (quoting Commission’ Case, 149 F.3d at This is Sealed No. 97-50640. dispute. heart of Appeals, United States Court I Com- read words of Fifth Circuit. to mean that the Commission mission matter account specifically taken this into 19, 1998. Nov. sub- to allow decided only government mo- stantial assistance Any reading of renders
tion. other government” “[u]pon words motion of the expect unrealistic
redundant. It is have
the Commission would burdened Further, Shaw, give required Government has not raised issue. a district to In U.S. holding conclu- case is based on the "specific in terms of our in this reasons for the adequately ad- do not policies underlying the Guidelines.” 891 sion Cir.1989). departure under does not dress substantial assistance This change 5K2.0. in the instant case because result