In Re: Sealed Case

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued March 26, 1998 Decided July 24, 1998

No. 97-3112

In re: Sealed Case (Sentencing Guidelines' "Substantial

Assistance") No. 97-3112

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Appeal from the United States District Court

for the District of Columbia

(No. 95cr00031-02)

A.J. Kramer, Federal Public Defender, argued the cause
and filed the briefs for appellant.

Ann Rosenfield, Assistant U.S. Attorney, argued the cause
for appellee. With her on the brief were Mary Lou Leary,
U.S. Attorney at the time the brief was filed, John R. Fisher
and Thomas J. Tourish, Jr., Assistant U.S. Attorneys.

Before: Edwards, Chief Judge, Tatel, Circuit Judge, and
Buckley, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge Tatel.

Tatel, Circuit Judge: The district court denied appellant's
motion for downward departure under section 5K1.1 of the
United States Sentencing Guidelines because the Government
had not filed a motion attesting to appellant's substantial

assistance. Applying Koon v. United States, 518 U.S. 81
(1996), and finding nothing in the Sentencing Guidelines flatly
prohibiting departures in the absence of government motions,
we remand for the district court to determine whether the
circumstances of this case take it out of the relevant heart-
land so as to warrant departure.

I

The U.S. Sentencing Guidelines authorize district courts to
depart from prescribed sentencing ranges if they find "an
aggravating or mitigating circumstance of a kind, or to a
degree, not adequately taken into account by the Sentencing
Commission." 18 U.S.C. s 3553(b) (1994). The Guidelines
also encourage departure under certain specific circum-
stances. For example, section 5K1.1 provides:

Upon motion of the government stating that the defen-
dant has provided substantial assistance in the investiga-
tion or prosecution of another person who has committed
an offense, the court may depart from the guidelines.

U.S. Sentencing Guidelines Manual ("U.S.S.G.") s 5K1.1
(1997). Prior to Koon, we interpreted section 5K1.1 to de-
prive district courts of authority to depart based on a defen-
dant's assistance in the absence of a government motion. See
United States v. Ortez, 902 F.2d 61, 64 (D.C. Cir. 1990).

Having pleaded guilty to one count of conspiracy to distrib-
ute and possession with intent to distribute cocaine, appellant
sought downward departure based on his alleged substantial
assistance to the government. The district court rejected the
request, citing U.S.S.G. s 5K1.1 and the absence of a govern-
ment motion.

On appeal, appellant challenges the district court's decision
not to depart on two grounds. First, resurrecting an argu-
ment that was presented to us once before but never fully
addressed because appellant in that case failed to raise it in
district court, see United States v. Dawson, 990 F.2d 1314,
1316-17 (D.C. Cir. 1993) (per curiam), appellant challenges
section 5K1.1's validity on the grounds that the Commission

issued it as a policy statement rather than a guideline.
Because this appellant presented the issue to the trial court,
we can fully consider its merits. Second, appellant argues
that, assuming section 5K1.1's validity, Koon permits depar-
tures for substantial assistance even in the absence of a
government motion because the factor was not adequately
considered by the Commission. Although district court deci-
sions not to depart are usually unreviewable, see United
States v. Pinnick, 47 F.3d 434, 439 (D.C. Cir. 1995), our
review here is de novo because appellant argues that the
district court misconstrued its legal authority under the
Guidelines, United States v. Sun-Diamond Growers, 138 F.3d
961, 975 (D.C. Cir. 1998) ("[W]hether a given factor could ever
be a permissible basis for departure is a question of law
which we address de novo.") (citing Koon, 518 U.S. at 100).

II

Guidelines and policy statements differ in several ways.
The Sentencing Reform Act of 1984, Pub. L. No. 98-473, 98
Stat. 1987 (codified as amended at 18 U.S.C. ss 3551-3586, 28
U.S.C. ss 991-998 (1994)), directs the Commission to promul-
gate guidelines "for use of a sentencing court in determining
the sentence to be imposed." 28 U.S.C. s 994(a)(1). The Act
authorizes the Commission to promulgate general policy
statements "regarding application of the guidelines or any
other aspect of sentencing or sentence implementation that in
the view of the Commission would further the purposes of
[sentencing]." Id. s 994(a)(2). Guidelines require congres-
sional approval, id. s 994(p); policy statements do not,
U.S.S.G. ch. 7, pt. A, intro. cmt. 3(a). Guidelines establish
specific numeric sentence ranges; policy statements usually
provide general guidance about the factors that should inform
sentencing decisions. Courts must follow guidelines. See
Mistretta v. United States, 488 U.S. 361, 367, 391 (1989). The
binding effect of policy statements is less clear. The Su-
preme Court has called policy statements "authoritative
guide[s] to the meaning of the applicable Guideline."
Williams v. United States, 503 U.S. 193, 201 (1992). But
some policy statements are not binding at all. For example,
the Guidelines characterize Chapter 7's policy statements as

"evolutionary" and designed merely to "provide guidance."
U.S.S.G. ch. 7, pt. A, intro. cmt. 1. And we have held that
where, as in Chapter 7, a policy statement is "independent of
(and a conscious substitute for) any Guideline," it is not
binding. United States v. Hooker, 993 F.2d 898, 901 (D.C.
Cir. 1993).

In support of his contention that the Commission should
have issued section 5K1.1 as a guideline rather than a policy
statement, appellant relies on 28 U.S.C. s 994(n), which
states:

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.

28 U.S.C. s 994(n) (emphasis added). According to appellant,
because Congress deliberately used the term "guidelines" and
"clearly differentiated between guidelines and policy state-
ments," the Commission lacked authority to promulgate a
policy statement instead. Citing a contrary Fifth Circuit
decision, the Government responds that the statute some-
times uses the term "the guidelines" to refer broadly to the
system of guidelines as a whole--policy statements includ-
ed--and that the Commission therefore had authority to
promulgate section 5K1.1 as a policy statement. See United
States v. Underwood, 61 F.3d 306, 310 (5th Cir. 1995) (con-
struing the term "the guidelines" as used in 28 U.S.C.
s 994(n) to refer to the guidelines as a whole and concluding
that section 994(n) authorized the promulgation of a policy
statement).

Because appellant's argument amounts to a challenge to
the Commission's interpretation of its authority under the
statute to promulgate a policy statement, we proceed as
directed by Chevron U.S.A. Inc. v. Natural Resources De-
fense Council, 467 U.S. 837 (1984). See Stinson v. United
States, 508 U.S. 36, 44-45 (1993) ("The Sentencing Commis-
sion promulgates the guidelines by virtue of an express

congressional delegation of authority for rulemaking....");
United States v. Doe, 934 F.2d 353, 359 (D.C. Cir. 1991)
(applying Chevron analysis to Sentencing Guidelines). If the
statute is clear, that ends the matter. If the statute is
ambiguous, we must defer to the Commission's interpretation
as long as it is reasonable. Chevron, 467 U.S. at 842-44.

We begin with the statute's language and structure. Defin-
ing the duties of the Commission, section 994 lists purposes
for the guidelines and tells the Commission what guidelines
and/or policy statements should accomplish. See generally 28
U.S.C. s 994. But section 994 uses the terms "guidelines"
and "policy statements" inconsistently. Some subsections
refer to "guidelines." Others refer to "guidelines promulgat-
ed pursuant to subsection (a)(1)," "guidelines and policy state-
ments," "policy statements," or "policy statements promulgat-
ed pursuant to subsection (a)(2)," and it is not at all clear
whether Congress intended these terms to be mutually exclu-
sive. For example, three different subsections dealing with
the length and conditions of imprisonment use three different
terms: Subsection 994(g) begins, "[t]he Commission, in pro-
mulgating guidelines pursuant to subsection (a)(1)," id.
s 994(g); subsection 994(h) begins, "[t]he Commission shall
assure that the guidelines specify," id. s 994(h); and subsec-
tion 994(e) begins, "[t]he Commission shall assure that the
guidelines and policy statements ... reflect," id. s 994(e).
Appellant argues that if, as the Government contends, "the
guidelines" means the system of guidelines as a whole, Con-
gress's use of the words "guidelines and policy statements"
would have been redundant because the term "guidelines"
would already encompass policy statements. See id. s 994(c),
(d), (e). The Government responds that if the term "guide-
lines" means only those binding sentencing instructions as
defined in section 994(a)(1) and always excludes policy state-
ments, Congress's use of the phrase "guidelines promulgated
pursuant to subsection (a)(1)" would have been redundant.
See id. s 994(b), (f), (g), (l), (y). Each side has a point.

Appellant also relies on the statute's definitional section
which states: " '[G]uidelines' means the guidelines promulgat-
ed by the Commission pursuant to section 994(a) of this title."

Id. s 998(c). Section 994(a), in turn, has three subsections:
Subsection (a)(1) defines guidelines, subsection (a)(2) defines
policy statements, and subsection (a)(3) refers to both. Ap-
pellant interprets section 998(c)'s definition to restrict "guide-
lines" to guidelines as defined in subsection 994(a)(1). The
Government, pointing out that Congress knew how to refer to
subsection 994(a)(1) when it wanted to, argues that section
998(c)'s reference to section 994(a) encompasses both of its
subsections, defining guidelines (subsection 994(a)(1)) as well
as policy statements (subsection 994(a)(2)). Again, each side
has a point.

Because the parties each offer completely plausible inter-
pretations of the statute and its structure, and because the
Supreme Court, though acknowledging the distinction be-
tween guidelines and policy statements, has never made clear
whether the use of the term "guidelines" in section 998(c)
excludes policy statements, see Williams, 503 U.S. at 200-201,
we face a classic case of statutory ambiguity, and thus turn to
Chevron 's second step, see Chevron, 467 U.S. at 843-44.
Given the statute's ambiguity and the Commission's broad
authority to promulgate policy statements--not only those
that interpret specific guidelines, but "regarding ... any
other aspect of sentencing or sentence implementation that in
the view of the Commission would further the purposes of
[sentencing]," 28 U.S.C. s 994(a)(2)--we have no doubt that
the Commission's decision to issue a policy statement rather
than a guideline in response to section 994(n) amounted to a
permissible, if not the only reasonable, construction of the
statute.

Appellant argues that since Hooker distinguished between
policy statements and guidelines, we cannot now read the
term "guideline" so broadly that it includes policy statements.
However, Hooker turned not on the distinction between
guidelines and policy statements, but on the unique nature of
Chapter 7 policy statements themselves. See Hooker, 993
F.2d at 901 (contrasting the freestanding, nonbinding, flexible
Chapter 7 policy statements promulgated pursuant to 28
U.S.C. s 994(a)(3), with the binding policy statements in
Williams, 503 U.S. at 200). Appellant suggests that under

Hooker, freestanding policy statements like section 5K1.1 are
never binding. But this conflicts with Koon's description of
several freestanding Chapter 5 policy statements (sections
5H1.4, 5H1.10, 5H1.12, and 5K2.12) as binding, i.e., they
contain "factors that never can be bases for departure," Koon,
518 U.S. at 93; see also United States v. Webb, 134 F.3d 403,
406 (D.C. Cir. 1998) (treating a freestanding policy state-
ment--section 5H1.4--as binding, noting that even though
the "directive is in the form of a 'policy statement' rather
than a 'guideline,' it is still 'an authoritative guide' for a court
contemplating a departure from the Guidelines") (quoting
Williams, 503 U.S. at 200).

III

This brings us to appellant's alternative argument that
even without a government motion, district courts can depart
based on substantial assistance in unusual cases. Although
the Supreme Court has twice addressed the substantial assis-
tance motion requirement, see Melendez v. United States, 518
U.S. 120, 130-31 (1996) (government motion under section
5K1.1 for departure below Guidelines' range does not also
permit departure below the statutory minimum under 18
U.S.C. s 3553(e)); Wade v. United States, 504 U.S. 181, 185-
86 (1992) (district court may review for unconstitutional moti-
vation government decision not to file motion), it has never
decided whether departure might be appropriate when the
government has not filed a motion under section 5K1.1.

District courts may depart based on circumstances "not
adequately taken into consideration" by the Commission, 18
U.S.C. s 3553(b), and as Koon explains, the Guidelines list
very few factors that courts absolutely cannot use to depart,
see Koon, 518 U.S. at 93 (listing forbidden factors as "race,
sex, national origin, creed, religion, socio-economic status,
1995 U.S.S.G. s 5H1.10; lack of guidance as a youth,
s 5H1.12; drug or alcohol dependence, s 5H1.4; and eco-
nomic hardship, s 5K2.12"); United States v. Rhodes, 1998
WL 321541, at *3-4 (D.C. Cir. June 19, 1998). If the pro-
posed departure factor is not prohibited, courts may depart,
although the precise departure inquiry depends on whether

the factor is encouraged, discouraged, or unmentioned. See
Koon, 518 U.S. at 96; Rhodes, 1998 WL 321541, at *7. If the
factor is encouraged, courts can depart only "if the applicable
Guideline does not already take it into account." Koon, 518
U.S. at 96. If the factor is discouraged, or encouraged but
has already been taken into account in an applicable guide-
line, courts can depart "only if the factor is present to an
exceptional degree or in some other way makes the case
different from the ordinary case where the factor is present."
Id. If the factor is unmentioned, courts must, "after consider-
ing the 'structure and theory of both relevant individual
guidelines and the Guidelines taken as a whole,' decide wheth-
er [the factor] is sufficient to take the case out of the
Guideline's heartland." Id. (quoting United States v. Rivera,
994 F.2d 942, 949 (1st Cir. 1993)).

Applying Koon to this case, we begin with the obvious: The
circumstance under which appellant seeks departure is not
prohibited. Nowhere do the Guidelines state that courts
cannot depart based on substantial assistance in the absence
of a government motion. Compare U.S.S.G. s 5K1.1 ("Upon
motion of the government ... the court may depart ....")
(emphasis added), with id. s 5H1.10 (stating that race, sex,
national origin, creed, religion, and socio-economic status "are
not relevant in the determination of a sentence").

But clarity ends here because the circumstances of this
case do not fit neatly into Koon's remaining encouraged/dis-
couraged/unmentioned categories. The Guidelines encourage
substantial assistance departures with a government motion
but not without such a motion. Indeed, the Guidelines no-
where expressly address substantial assistance without a
government motion. The Government argues that the very
existence of a government motion requirement implicitly dis-
courages departures without such a motion. But unlike other
policy statements that explicitly discourage consideration of
factors such as age, education, or family circumstances, see id.
ss 5H1.1, 5H1.2, 5H1.6, the Guidelines nowhere expressly
discourage departures based on "substantial assistance with-
out a government motion," even though the Commission could
easily have done so. Just because the filing of a government

motion makes substantial assistance an encouraged ground
does not mean the government's failure to file such a motion
transforms substantial assistance--a factor Congress express-
ly injected into the sentencing decision-making process, see 28
U.S.C. s 994(n)--into a discouraged ground.

Appellant argues that since the Guidelines neither encour-
age nor discourage consideration of substantial assistance
without a government motion, we should view it as unmen-
tioned. Koon, adopting the First Circuit's analysis in Rivera,
coined the term "unmentioned" to refer to the class of
unusual factors not " 'adequately' " considered by the Com-
mission. See Koon, 518 U.S. at 96 (quoting Rivera, 994 F.2d
at 949); see also id. (noting that unmentioned factors will be
" 'highly infrequent' ") (quoting U.S.S.G. ch. 1, pt. A, intro.
cmt. 4(b) (describing general departure authority)). Rivera
explained that although the Guidelines identify some encour-
aged and discouraged factors, the Guidelines themselves rec-
ognize that departure factors " 'cannot, by their very nature,
be comprehensively listed and analyzed in advance.' " Riv-
era, 994 F.2d at 949 (quoting U.S.S.G. s 5K2.0). District
courts will therefore often have to decide for themselves
whether a case involves unusual factors not adequately con-
sidered by the Commission.

It is not always easy to determine whether a particular
factor (here, substantial assistance without a government
motion) that seems related to a factor mentioned in the
Guidelines (substantial assistance with a motion) has or has
not been adequately taken into account. Koon makes clear,
however, that factors mentioned in the Guidelines should be
interpreted precisely. Rejecting the Ninth Circuit's conclu-
sion that the Guidelines' prohibition on consideration of socio-
economic status precluded consideration of job loss, Koon
said that "[a]lthough an impermissible factor need not be
invoked by name to be rejected, socioeconomic status and job
loss are not the semantic or practical equivalent of each
other." Koon, 518 at 110. Two First Circuit cases take a
similarly precise approach. In one, the court found that the
Guidelines' designation of vocational skills as a discouraged
factor did not bar consideration of two related factors, i.e.,

business failure and job loss. See United States v. Olbres, 99
F.3d 28, 35 (1st Cir. 1996). In the other case, the court
treated "assistance to the judicial system" (in the form of an
early plea agreement saving time and judicial resources) as
unmentioned by section 5K1.1 because assisting the judiciary
differs both conceptually and practically from assisting the
prosecution. See United States v. Dethlefs, 123 F.3d 39, 45
(1st Cir. 1997). By comparison, we held in Rhodes that post-
conviction rehabilitation, though neither expressly encouraged
nor discouraged as a departure basis, is nevertheless "taken
into account" because the Guidelines refer to the broader
concept of post-offense rehabilitation, Rhodes, 1998 WL
321541, at *9, "a concept linguistically broad enough to cover
post-conviction rehabilitation," id. at *8.

From these cases, the following standard emerges: Where
a proposed departure factor amounts either to the semantic
or practical equivalent of an explicitly mentioned factor or a
completely covered subset of an explicitly mentioned factor,
that factor has been accounted for in the Guidelines. Where,
however, the factor has no equivalent or substitute in the
Guidelines and no mentioned factor encompasses it, that
factor has not been adequately considered. This standard, in
addition to comporting with the case law, ensures that courts
remain faithful to the Guidelines. The Commission carefully
delineated encouraged and discouraged factors. See Koon,
518 U.S. at 106-09 (judicial preclusion of consideration of non-
forbidden factors would usurp the Commission's policy mak-
ing role). The Commission itself has described its guideline
promulgation process as evolutionary and its role "over time
[to] ... refine the guidelines to specify more precisely when
departures should and should not be permitted." U.S.S.G.
ch. I, pt. A, intro. cmt. 4(b). Courts should therefore not
extend Guideline categories to answer questions the Commis-
sion may have left for another day. See Olbres, 99 F.3d at 35
("[C]ourts should be careful not to construe the categories
covered by the Guidelines' factors too broadly....").

Applying this standard to the facts of this case, and consid-
ering "the sentencing guidelines, policy statements, and offi-
cial commentary of the Sentencing Commission," 18 U.S.C.

s 3553(b), we agree with appellant that a substantial assis-
tance departure without a government motion is neither
encompassed by nor equivalent to any mentioned, encour-
aged, or discouraged factor, and was thus not adequately
considered by the Commission. Substantial assistance with-
out a government motion is certainly not a "semantic or
practical equivalent" of substantial assistance with a motion,
Koon, 518 U.S. at 110. Nor is section 5K1.1 "linguistically
broad enough" to account for a substantial assistance depar-
ture without a government motion, Rhodes, 1998 WL 321541,
at *8. Indeed, the departure factors at issue in this case
differ more sharply than those at issue in Koon, Olbres, and
Dethlefs: socioeconomic status versus job loss (Koon), voca-
tional skills versus business failure (Olbres), and assistance to
the government-as-prosecutor versus assistance to the gov-
ernment-as-judiciary (Dethlefs). Although these latter fac-
tors have at least some conceptual overlap, the factors at
issue here--substantial assistance with a government motion
versus substantial assistance without one--stand as polar
opposites. In fact, where the government files no motion,
section 5K1.1 does not even apply. Section 5K1.1 thus cannot
be viewed as adequate consideration of substantial assistance
without a government motion, particularly since 28 U.S.C.
s 994(n) explicitly directed the Commission to assure that the
guidelines reflect the general appropriateness of lesser sen-
tences for defendants who substantially assist the prosecu-
tion.

We therefore conclude that even where the government
files no motion, Koon authorizes district courts to depart from
the Guidelines based on a defendant's substantial assistance
where circumstances take the case out of the relevant guide-
line heartland. Insofar as this contradicts our holding in
Ortez that district courts lack authority to consider substan-
tial assistance absent a government motion, Koon effectively
overrules that aspect of Ortez. As Koon directs, we leave it
to the district court to define the "heartland" for a particular
case. See Koon, 518 U.S. at 98-99; Rhodes, 1998 WL 321541,
at *9.

This case is remanded for possible re-sentencing in light of
this opinion.

So ordered.