United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued En Banc January 27, 1999
Decided July 9, 1999
No. 97-3112
In re Sealed Case No. 97-3112
(Sentencing Guidelines' "Substantial Assistance")
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.
John R. Fisher, Assistant U.S. Attorney, argued the cause
for appellee. With him on the brief was Wilma A. Lewis,
U.S. Attorney.
Before: Edwards, Chief Judge, and Wald, Silberman,
Williams, Ginsburg, Sentelle, Henderson, Randolph, Rogers,
Tatel, and Garland, Circuit Judges.
Opinion for the Court filed by Circuit Judge Garland, with
whom all members of the court join.
Concurring opinion filed by Chief Judge Edwards and
Circuit Judge Tatel.
Concurring opinion filed by Circuit Judge Sentelle.
Concurring opinion filed by Circuit Judge Henderson.
Garland, Circuit Judge: Under section 5K1.1 of the United
States Sentencing Guidelines (U.S.S.G.), a district court may
sentence a criminal defendant below the guideline range
prescribed for the offense, "[u]pon motion of the government
stating that the defendant has provided substantial assistance
in the investigation or prosecution of another person who has
committed an offense." U.S.S.G. s 5K1.1, p.s. (1997).1 This
court was convened en banc to consider whether a district
court also has authority under the Guidelines to depart from
the applicable range when the government declines to file
such a motion. We hold that it does not.
I
A district court is generally required to impose a criminal
sentence from within the range prescribed by the Sentencing
Guidelines. 18 U.S.C. s 3553(b). That range is calculated by
identifying the guideline keyed to the defendant's offense
conduct, applying certain specified adjustments, and coordi-
nating the adjusted offense level with a criminal history
category based on the defendant's prior criminal conduct.
See U.S.S.G. s 1B1.1. Employing that analysis in this case,
the district court calculated the applicable guideline range
and sentenced defendant to forty months in prison, a point in
the middle of the range.2
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1 Unless otherwise indicated, all references are to the 1997 edition
of the Sentencing Guidelines Manual, which is the edition governing
defendant's case. See U.S.S.G. s 1B1.11, p.s. Because this case
remains under seal, we recite only those facts necessary to frame
the legal issues.
2 See 21 U.S.C. s 846. The district court initially sentenced
defendant to 60 months imprisonment, the statutory minimum
sentence for his offense (conspiracy to distribute and to possess
Under certain circumstances, a court may depart down-
ward from the sentencing range generated by the Guidelines.
See 18 U.S.C. s 3553(b). Defendant contended that assis-
tance he rendered to the government in connection with the
investigation of other offenders qualified him for a departure
under Guidelines s 5K1.1. The government, however, de-
clined to file a motion stating that defendant had provided
substantial assistance. In accord with our decision in United
States v. Ortez, 902 F.2d 61, 64 (D.C. Cir. 1990), the district
court held that such a motion was a "prerequisite to down-
ward departure from a guidelines sentence for substantial
assistance," and denied defendant's request.
In In re Sealed Case (Sentencing Guidelines' "Substantial
Assistance"), 149 F.3d 1198 (D.C. Cir. 1998), a panel of this
court reversed. The panel acknowledged that our holding in
Ortez barred a departure for substantial assistance in the
absence of a government motion. In the panel's view, howev-
er, the Supreme Court effectively overruled Ortez in Koon v.
United States, 518 U.S. 81 (1996), leaving district courts free
"to depart from the Guidelines based on a defendant's sub-
stantial assistance where circumstances take the case out of
the relevant guideline heartland." 149 F.3d at 1204. Be-
cause the district court had concluded that it lacked authority
to depart without a motion, the case was remanded for
possible resentencing. Id. On November 3, 1998, we grant-
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with intent to distribute 500 grams or more of cocaine). See 21
U.S.C. s 841(b)(1)(B)(ii); 21 U.S.C. s 846. That sentence was
vacated and remanded by a panel of this court on the ground that
defendant was eligible for treatment under the "safety valve"
provision of the Sentencing Guidelines, U.S.S.G. s 5C1.2, which
Congress added in 1994, see 18 U.S.C. s 3553(f). In re Sealed Case
(Sentencing Guidelines' "Safety Valve"), 105 F.3d 1460 (D.C. Cir.
1997). The safety valve provision requires district courts to disre-
gard statutory minimum sentences, and instead to sentence pursu-
ant to the Guidelines, when a defendant satisfies five indicators of
reduced culpability. Id. Following remand, the district court
applied an additional reduction applicable to safety valve cases, see
U.S.S.G. s 2D1.1(b)(6), recalculated defendant's guideline sentenc-
ing range, and sentenced him to the 40 months noted in the text.
ed the government's suggestion for rehearing en banc, and
vacated the portion of the panel's opinion holding that depar-
tures for substantial assistance are available in the absence of
a government motion.3
The question at issue here--whether a district court may
depart without a motion under any circumstances--is a ques-
tion of law which we effectively review de novo. See United
States v. Sun-Diamond Growers, 138 F.3d 961, 975 (D.C. Cir.
1998) (citing Koon, 518 U.S. at 100), aff'd on other grounds,
119 S. Ct. 1402 (1999). Applying that standard, we now
reaffirm our prior holding in Ortez and affirm the judgment
of the district court.
II
Our analysis begins with the language of section 5K1.1,
which reads, in relevant part: "Upon motion of the govern-
ment stating that the defendant has provided substantial
assistance in the investigation or prosecution of another per-
son who has committed an offense, the court may depart from
the guidelines." The question is whether the United States
Sentencing Commission intended the phrase, "[u]pon motion
of the government," to mean only upon motion of the govern-
ment. In Ortez, and in five subsequent opinions issued prior
to the Supreme Court's decision in Koon, we held that a
government motion was a prerequisite for a substantial assis-
tance departure.4 Every other circuit to announce a holding
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3 We left (and leave) untouched the panel's rejection of defen-
dant's alternative argument that section 5K1.1 is invalid because the
Sentencing Commission issued it as a policy statement rather than
a formal guideline. See 149 F.3d at 1200-01. Defendant's sugges-
tion for rehearing on that issue was denied.
4 See Ortez, 902 F.2d at 64; see also United States v. Dyce, 91
F.3d 1462, 1470 (D.C. Cir. 1996) (holding a substantial assistance
departure available "only where the Government certifies to the
district court that the help received has been of sufficient value to
warrant the departure"); United States v. White, 71 F.3d 920, 927
(D.C. Cir. 1995) ("[I]n the absence of a government motion the
district court has no authority to depart under section 5K1.1.");
on the issue reached the same conclusion,5 and, as discussed
below, the circuits have continued to adhere to that position
since Koon was decided as well. See infra note 12.
To be sure, the language of section 5K1.1 is susceptible to
more than one reading. Although the section clearly provides
that if the government moves the court may depart, it does
not necessarily compel the inverse proposition--that if the
government does not move the court may not depart. The
legal maxim expressio unius est exclusio alterius ("the men-
tion of one thing implies the exclusion of another") is not
always correct. Rather, as we recently noted, "[t]he maxim's
force in particular situations depends entirely on context,
whether or not the draftsmen's mention of one thing, like a
grant of authority, does really necessarily, or at least reason-
ably, imply the preclusion of alternatives." Shook v. D.C.
__________
United States v. Jones, 58 F.3d 688, 691 (D.C. Cir. 1995) (holding
that "a motion of the Government is a prerequisite to the exercise
of judicial discretion to depart below the Guideline range"); United
States v. Watson, 57 F.3d 1093, 1096 (D.C. Cir. 1995) (same);
United States v. Doe, 934 F.2d 353, 355 (D.C. Cir. 1991) (same).
5 See United States v. Reina, 905 F.2d 638, 641 (2d Cir. 1990);
United States v. Higgins, 967 F.2d 841, 845 (3d Cir. 1992); United
States v. Wade, 936 F.2d 169, 171 (4th Cir. 1991); United States v.
Levy, 904 F.2d 1026, 1035 (6th Cir. 1990); United States v. Goroza,
941 F.2d 905, 908-09 (9th Cir. 1991); United States v. Lee, 989 F.2d
377, 379 (10th Cir. 1993); United States v. Alamin, 895 F.2d 1335,
1337 (11th Cir. 1990). Although three circuits initially speculated in
dicta that there might be an "egregious" case or "extraordinary"
assistance exception to the motion requirement, see United States v.
Romolo, 937 F.2d 20, 24-25 (1st Cir. 1991); United States v. White,
869 F.2d 822, 829 (5th Cir. 1989); United States v. Justice, 877 F.2d
664, 668-69 (8th Cir. 1989), those circuits now appear to have
narrowed that exception to cases involving unconstitutional motives
or irrational or bad faith refusals to file by the government. See
United States v. Amparo, 961 F.2d 288, 293-94 (1st Cir. 1992);
United States v. Solis, 169 F.3d 224, 227 (5th Cir. 1999); United
States v. Kelly, 18 F.3d 612, 617-18 (8th Cir. 1994). We reach a
similar result in Parts IV and V infra.
Fin. Responsibility & Management Assistance Auth., 132
F.3d 775, 782 (D.C. Cir. 1998).
In the present context, however, it is clear that by authoriz-
ing departures with government motions, the Commission did
intend to preclude departures without motions. This is clear
because the Commission borrowed the phrasing of section
5K1.1 from two other provisions whose preclusive meaning is
well-established, and which in turn borrowed from a tradition
of similar statutory provisos that have been interpreted in the
same way.
The Commission's authority to promulgate section 5K1.1
arises from Congress' instruction, in 28 U.S.C. s 994(n), that
the Commission "assure that the guidelines reflect the appro-
priateness of imposing a lower sentence than would otherwise
be imposed ... to take into account a defendant's substantial
assistance...." Notably, Congress did not require the Com-
mission to include an "upon motion of the government"
proviso for guideline departures based on substantial assis-
tance. See Melendez v. United States, 518 U.S. 120, 125 n.3
(1996). The Commission had the discretionary authority to
do so, however, and did not have far to look for appropriate
models.6
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6 Defendant argues that the language of 28 U.S.C. s 994(n),
which requires the Commission to "assure that the guidelines
reflect the general appropriateness of imposing a lower sentence"
for defendants who provide substantial assistance to the govern-
ment, compels the conclusion that section 5K1.1 cannot alone consti-
tute adequate consideration of substantial assistance. Def. Supp.
Br. at 11. But Congress did not direct the Commission to assure
departures whenever a defendant provides substantial assistance.
Rather, section 994(n) left it to the Commission to determine the
"general appropriateness" of lesser sentences, and it was within the
Commission's authority to conclude that lowering sentences for
substantial assistance would only be appropriate upon government
motion. As we previously said in rejecting the claim that section
5K1.1 conflicts with section 994(n), "[t]he fact that Congress itself
drafted a substantial assistance provision containing a government
motion requirement [18 U.S.C. s 3553(e)]--located, as it so hap-
pens, immediately prior to section 994(n) in the original legisla-
Section 994(n) was enacted as part of the Anti-Drug Abuse
Act of 1986. Adjacent to that section in the Act were two
other sentencing-departure provisions which, respectively, en-
acted 18 U.S.C. s 3553(e) and amended Rule 35(b) of the
Federal Rules of Criminal Procedure.7 Both included nearly
identical "upon motion of the government" clauses, and it is
thus apparent that in drafting section 5K1.1 the Commission
intended that section to be read in pari materia with 18
U.S.C. s 3553(e) and Rule 35(b). See United States v. Abu-
houran, 161 F.3d 206, 211 (3d Cir. 1998) ("The Commission
drew on the provision Congress itself enacted allowing courts
to sentence below statutory mandatory minima based on
substantial assistance if the government so moves."); see also
United States v. Doe, 940 F.2d 199, 203 n.7 (7th Cir. 1991);
United States v. Romolo, 937 F.2d 20, 23 (1st Cir. 1991);
United States v. Doe, 934 F.2d 353, 359 (D.C. Cir. 1991).
Section 3553(e) governs the circumstances under which a
district court may select a sentence below a mandatory
minimum set by a congressional statute--as compared to
section 5K1.1, which applies to the selection of a sentence
below a Sentencing Commission guideline. Section 3553(e)
states:
Upon motion of the Government, the court shall have the
authority to impose a sentence below a level established
by statute as minimum sentence so as to reflect a defen-
dant's substantial assistance in the investigation or pros-
ecution of another person who has committed an offense.
Such sentence shall be imposed in accordance with the
guidelines and policy statements issued by the Sentenc-
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tion--precludes any doubts as to the reasonableness of the Commis-
sion's inclusion of such a requirement in section 5K1.1." Doe, 934
F.2d at 359 (D.C. Cir.).
7 See Anti-Drug Abuse Act of 1986, Pub. L. No. 99-570, tit. I,
subtit. A, s 1008, 100 Stat. 3207, 3207-7 (1986) (codified at 28 U.S.C.
s 994(n)); id. s 1007(a), 100 Stat. at 3207-7 (codified at 18 U.S.C.
s 3553(e)); id. s 1009(a), 100 Stat. at 3207-8 (amending Fed. R.
Crim. P. 35(b)).
ing Commission pursuant to section 994 of title 28,
United States Code.
18 U.S.C. s 3553(e). In Melendez v. United States, the
Supreme Court interpreted section 3553(e) to "require[ ] a
Government motion ... before the court may impose such a
sentence." 518 U.S. at 125-26 (1996). The Supreme Court's
construction of language that is virtually identical to the
language of section 5K1.1, and is adjacent to its authorizing
provision, is powerful authority for the manner in which we
should read section 5K1.1 itself.8
Rule 35(b) of the Federal Rules of Criminal Procedure
governs the reduction of a defendant's sentence for substan-
tial assistance provided after the initial sentence was imposed.
After the 1986 amendment, the Rule read:
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 assis-
tance in the investigation or prosecution of another per-
son who has committed an offense, in accordance with
the guidelines and policy statements issued by the Sen-
tencing Commission pursuant to section 994 of title 28,
United States Code.
Fed. R. Crim. P. 35(b)(1987).9 As with section 3553(e), courts
have interpreted Rule 35(b) as requiring a motion before a
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8 Defendant attaches some significance to the fact that section
3553(e) provides that upon motion a court shall have "authority" to
impose a sentence below the statutory minimum, while section
5K1.1 provides that upon motion a court "may" depart from the
Guidelines. This truly is a distinction without a difference. Com-
pare Black's Law Dictionary 132 (6th ed. 1990) (defining "authori-
ty" as "permission"), with id. at 979 (defining "may" as expressing
"permission").
9 The provision permitting a reduction for substantial assistance,
including the phrase "on motion of the government," was added to
Rule 35 by the Sentencing Reform Act of 1984, Pub. L. No. 98-473,
tit. II, s 215(b), 98 Stat. 1837, 2016 (1984). The 1986 amendment
brought the Rule to the form quoted in text. Following amend-
judge may depart. See, e.g., Doe, 940 F.2d at 202 (7th Cir.)
(holding that "a Government motion is required to trigger the
current Rule 35(b)"); United States v. Lewis, 896 F.2d 246,
248 (7th Cir. 1990) (same).
Moreover, sections 5K1.1 and 3553(e), and Rule 35(b), are
part of a congressional tradition of placing similar provisos in
statutes that implicate issues of prosecutorial discretion and
judgment. For example, 18 U.S.C. s 6003(a) provides that,
"upon the request of the United States attorney for such
district," a district court shall issue an order compelling the
immunized testimony of a witness who refuses to testify.
Likewise, the Ethics in Government Act provides that,
"[u]pon receipt of an application" from the Attorney General,
a special division of this court shall appoint an independent
counsel. 28 U.S.C. s 593(b)(1). As with section 3553(e) and
Rule 35(b), these statutes have been read to mean that courts
may act only upon a request from the government. See
United States v. Doe, 465 U.S. 605, 616-17 (1984); In re
Kaminski, 960 F.2d 1062, 1063 (D.C. Cir. Spec. Div. 1992).
In both cases, the courts adopted such readings in reliance
upon a tradition of legislative and judicial deference to prose-
cutorial discretion in matters involving the investigation and
prosecution of criminal cases.10
The process of evaluating the extent and significance of a
defendant's "assistance in the investigation or prosecution of
another person" falls well within this tradition. See Wade v.
__________
ments made in 1998, Rule 35(b) now reads in pertinent part: "If the
Government so moves within one year after the sentence is im-
posed, the court may reduce a sentence to reflect a defendant's
substantial assistance...." Fed. R. Crim. P. 35(b) (1999).
10 See Doe, 465 U.S. at 616 ("The decision to seek use immunity
necessarily involves a balancing of the Government's interests in
obtaining information against the risk that immunity will frustrate
the Government's attempts to prosecute the subject of the investi-
gation."); Kaminski, 960 F.2d at 1064 (relying on Supreme Court
precedent that "the executive branch has exclusive authority and
absolute discretion to decide whether to prosecute a case") (quoting
United States v. Nixon, 418 U.S. 683, 693 (1974)).
United States, 504 U.S. 181, 185 (1992) (noting that prosecu-
tor's authority to seek a section 5K1.1 departure is compara-
ble to "a prosecutor's other decisions"); Abuhouran, 162 F.3d
at 215 (noting that without a motion requirement, "the court
would need to inquire into the nature, credibility, and signifi-
cance of the defendant's assistance.... [I]n doing so a court
would be drawn into inappropriate scrutiny of prosecutorial
decisionmaking."). As we have said before, "the government
motion requirement is not a sinister impediment to a defen-
dant's exercise of her substantive due process rights, but
rather a practical device that allows the government to give
appropriate weight to its investigative and enforcement activi-
ties...." Doe, 934 F.2d at 358 (D.C. Cir.). See Wade, 504
U.S. at 187 ("The Government's decision not to move may
have been based not on a failure to acknowledge or appreciate
[the defendant's] help, but simply on its rational assessment
of the cost and benefit that would flow from moving.") (citing
Doe, 934 F.2d at 358 (D.C. Cir.)).11 The point is not that
courts are incapable of making such evaluations. Nor is it
that letting them do so will always result in debilitating
intrusions into core prosecutorial functions. It is simply that
the "upon motion of the government" proviso falls squarely
within a tradition of deferring to prosecutorial initiative in
order to avert such a possibility, and that this tradition
formed the backdrop for the Commission's drafting of section
5K1.1.
Although the Supreme Court has interpreted the nearly
identical language of section 3553(e) to require a government
motion before a court may depart from a statutory minimum
sentence, the Court has not yet ruled directly with respect to
a departure from the Guidelines under section 5K1.1. In two
cases, however, it has strongly suggested that a government
motion is required under section 5K1.1 as well.
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11 See also Doe, 934 F.2d at 358 (D.C. Cir.) ("[T]he government
motion provision of section 5K1.1 is predicated on the reasonable
assumption that the government is best positioned to supply the
court with an accurate report of the extent and effectiveness of the
defendant's assistance.") (internal quotation omitted).
In Wade v. United States, 504 U.S. 181 (1992), the defen-
dant challenged the government's refusal to file a motion
seeking a substantial assistance departure under both sec-
tions 5K1.1 and 3553(e). The Court held that the govern-
ment's refusal to file such a motion is subject to judicial
review, but only upon a substantial threshold showing that
the prosecutor had an unconstitutional motive for refusing to
file. Because the defendant conceded that the court could not
depart without a motion, and merely challenged the govern-
ment's refusal to file one, Wade does not decide the precise
issue before us.
But Wade's dicta in that direction could hardly have been
stronger. For example, the Court described the "upon mo-
tion" clause of both section 3553(e) and section 5K1.1 as "the
condition limiting the court's authority":
Wade concedes, as a matter of statutory interpretation,
that s 3553(e) imposes the condition of a Government
motion upon the district court's authority to depart, and
he does not argue otherwise with respect to s 5K1.1....
Wade's position is consistent with the view, which we
think is clearly correct, that in both s 3553(e) and
s 5K1.1 the condition limiting the court's authority
gives the Government a power, not a duty, to file a
motion when a defendant has substantially assisted.
504 U.S. at 185 (internal citations omitted) (emphasis added).
In like vein, the Court said, "although a showing of assistance
is a necessary condition for relief, it is not a sufficient one."
Id. at 187. Indeed, there would have been little reason for
the Court to decide whether the government's refusal to file a
motion was subject to judicial review if the Court had be-
lieved such a motion was unnecessary to authorize a depar-
ture in the first place.
As noted above, the Court held in Melendez v. United
States, 518 U.S. at 125-26, that section 3553(e) requires a
government motion before a court may depart below a statu-
tory minimum. The issue in Melendez was whether a motion
filed pursuant to section 5K1.1, requesting a departure below
the Sentencing Guidelines, is sufficient to permit the court to
depart below the statutory minimum as well. The court held
that it is not, and that a motion requesting a departure below
the statutory minimum also is required. Again, the precise
question here was not at issue there, since the government
had filed a section 5K1.1 motion on Melendez's behalf. But
the Court did repeat Wade's dictum, which Wade had applied
to both sections 3553(e) and 5K1.1, that "substantial assis-
tance 'is a necessary condition for [a departure, but] it is not a
sufficient one.' " 518 U.S. at 126 n.4 (quoting Wade, 504 U.S.
at 187) (alteration in original). And although Justices O'Con-
nor and Breyer dissented in part, they did not dispute that
dictum. To the contrary, they were even more explicit than
the majority, stating flatly that section 5K1.1 "permit[s]
judges to depart downward for 'substantial assistance' only if
the Government makes a 'motion'...." Id. at 133 (Breyer,
J., joined by O'Connor, J., concurring in part and dissenting
in part) (emphasis added).
Because the Sentencing Commission has not issued an
interpretation of the meaning of section 5K1.1, there is no
administrative construction to which we may defer. Cf. Stin-
son v. United States, 508 U.S. 36, 44-46 (1993). Our task,
then, is to decide upon the best reading of section 5K1.1's
language. That task is not difficult, given the Supreme
Court's interpretation of the virtually identical language of
section 3553(e), the drafting history suggesting a Commission
intention that section 5K1.1 be read in pari materia with that
statute (and with Rule 35(b)), the accepted interpretation of
similar language in other statutes, and strong Supreme Court
dicta regarding the meaning of section 5K1.1 itself. These
considerations compel us to conclude that a court may depart
for substantial assistance only upon the filing of an appropri-
ate motion by the government.
III
In arguing that a district court may depart even in the
absence of a government motion, the defendant contends that
Koon wrought a transformation in the law so fundamental as
to overrule our earlier decision in Ortez and, implicitly, to
render inappropriate the kind of interpretative method em-
ployed above. No other circuit has adopted this view. To
the contrary, in numerous post-Koon cases, the circuits have
continued to rule that departures require government mo-
tions.12 The Third Circuit has specifically addressed and
rejected claims that Koon changed the substantial assistance
landscape. See Abuhouran, 161 F.3d at 207-09. And while
the Fifth Circuit initially adopted a position like that of
defendant, see United States v. Solis, 161 F.3d 281 (5th Cir.
1998), after we vacated our panel's decision it vacated its own
as well, and held that Koon did not alter the requirement of a
government motion. United States v. Solis, 169 F.3d 224 (5th
Cir. 1999).
In this Part, we first set forth the Supreme Court's analysis
in Koon, and then discuss the defendant's contentions and our
own conclusions regarding the relevance of Koon to section
5K1.1.
A
In Koon, the Supreme Court considered the standard of
review applicable to a district court's decision to depart from
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12 See, e.g., Abuhouran, 161 F.3d at 211 (3d Cir. 1998); United
States v. Schaefer, 120 F.3d 505, 508 (4th Cir. 1997); Solis, 169 F.3d
at 226 (5th Cir. 1999); United States v. Benjamin, 138 F.3d 1069,
1073 (6th Cir. 1998); United States v. Carter, 122 F.3d 469, 476 (7th
Cir. 1997); United States v. Barrett, 173 F.3d 682, 684 (8th Cir.
1999); United States v. Mikaelian, 168 F.3d 380, 385 (9th Cir.
1999); United States v. Cerrato-Reyes, ___ F.3d ___ (10th Cir.
1999), available at 1999 WL 273427 *9; United States v. Gonsalves,
121 F.3d 1416, 1419 (11th Cir. 1997). In United States v. Santoyo,
146 F.3d 519 (7th Cir. 1998), a panel of the Seventh Circuit
considered a defendant's claim "that his assistance was so substan-
tial that it justified a departure under s 5K2.0," even in the absence
of a government motion. The court did not reject the legal theory
behind the claim, but noted that it would require proof of assistance
so unusual "as to take it out of the heartland of s 5K1.1 cases," and
concluded that defendant's assistance was not of that caliber. San-
toyo, 146 F.3d at 525-26. We address this legal theory in Part IV
below.
a guideline sentencing range, and concluded that the appro-
priate standard was abuse of discretion. 518 U.S. at 98-99.
In the course of reaching that conclusion, the Court adopted a
four-part taxonomy of grounds for departure originally sug-
gested by then-Chief Judge Breyer in United States v. Riv-
era, 994 F.2d 942 (1st Cir. 1993). According to this taxono-
my, departure factors are classified as either: (1) forbidden,
(2) encouraged, (3) discouraged, or (4) unmentioned. Because
this taxonomy is at the heart of defendant's analysis of
section 5K1.1, we consider it in some detail.
Koon began by noting that the authority of a district court
to depart from the Guidelines derives from 18 U.S.C.
s 3553(b), which permits departure if "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 guide-
lines...." To determine "whether a circumstance was ade-
quately taken into consideration by the Commission," the
Court said, "Congress instructed courts to 'consider only the
sentencing guidelines, policy statements, and official commen-
tary of the Sentencing Commission.' " 518 U.S. at 92-93
(quoting s 3553(b)). "Turning [its] attention, as instructed,
to the Guidelines Manual," the Court noted the Commission's
statement that the Guidelines were formulated "to apply to a
heartland of typical cases," and hence that "factors that may
make a case atypical provide potential bases for departure."
Id. at 93.
Koon further noted, however, that "[s]entencing courts are
not left adrift" as to which factors may be considered in
making departures, and how such consideration should pro-
ceed. First, certain factors are "forbidden," and can never be
used as bases for departure. Id. at 94-95. Second, certain
factors are "encouraged." These are factors the Commission
was unable to take into account fully in formulating the
Guidelines. If a factor is encouraged, "the court is authorized
to depart if the applicable Guideline does not already take it
into account." Id. If the applicable guideline already does
take the encouraged factor into account, a court may still
depart in reliance upon it, "but only if 'it is present to a
degree substantially in excess of that which ordinarily is
involved in the offense.' " Id. at 95 (citing U.S.S.G. s 5K2.0,
p.s.). Third, certain factors are "discouraged." Such factors
are those " 'not ordinarily relevant to determination of wheth-
er a sentence should be outside the applicable guideline
range.' " Id. (quoting U.S.S.G. Ch. 5., Pt. H, intro. com-
ment.). They may be used for departure "only if the factor is
present to an exceptional degree." Id. at 96.
Finally, under the Koon taxonomy, if a factor is neither
forbidden, encouraged nor discouraged, it is "unmentioned."
An unmentioned factor may be used as the basis for depar-
ture if "it is sufficient to take the case out of the [applicable]
Guideline's heartland"--i.e., the range of typical cases to
which the guideline was meant to apply. Id. Koon cau-
tioned, however, that "the Commission's expectation [was]
that departures based on grounds not mentioned in the
Guidelines will be 'highly infrequent.' " Id. (quoting U.S.S.G.
Ch. 1, Pt. A).
B
In applying the Koon taxonomy to the instant case, defen-
dant begins with the proposition that the factor at issue
here--which he describes as "substantial assistance without a
government motion"--is not a forbidden factor. It is not
forbidden, he contends, because nothing in the Sentencing
Guidelines expressly prohibits departures in the absence of
government motions. Although he regards "substantial assis-
tance with a government motion" as an encouraged factor, he
does not contend that assistance without a motion is also
encouraged. He does, however, deny that it is discouraged,
since, again, "the Guidelines nowhere expressly discourage
departures based on 'substantial assistance without a govern-
ment motion.' " Def. Supp. Br. at 10 (internal quotation
omitted).
This leaves only the "unmentioned" category, which is
where defendant places substantial assistance without a mo-
tion. Koon, he contends, requires that the Guidelines be
interpreted precisely. If a factor has not been expressly
mentioned, then it has not been adequately taken into account
by the Commission. Because substantial assistance without a
motion has not been expressly mentioned, defendant argues
that like any other unmentioned factor it can be the basis of a
departure where circumstances take the case out of the
relevant guideline heartland. Thus, he concludes, Koon effec-
tively overrules Ortez.
We approach with some skepticism the contention that
Koon effectively overruled Ortez, and with it scores of cases
in this and other circuits. Section 5K1.1 was neither at issue,
nor mentioned, in the Koon opinion. The Court decided
Melendez, which repeated the dictum of Wade, just four days
after deciding Koon and without any suggestion that a funda-
mental transformation in the meaning of section 5K1.1 had
just occurred. Indeed, although Melendez was in large part
about the meaning of section 3553(e), it was also about the
meaning of section 5K1.1, yet the Court resolved the case
without once mentioning Koon. See 518 U.S. at 130-31.
Our general skepticism aside, we reject the defendant's
proposed application of Koon to section 5K1.1 for two specific
reasons. First, he misidentifies the departure factor at issue
in this case, and hence misplaces the factor within the Koon
taxonomy. Second, he incorrectly assumes that a "clear
statement" canon governs the reading of the entire Guidelines
Manual, and particularly of section 5K1.1.
The relevant departure factor here is neither "substantial
assistance to authorities without a government motion" nor
"substantial assistance to authorities with a government mo-
tion." Rather, the appropriate characterization of the factor
is the one the Commission itself used in titling section 5K1.1:
"Substantial Assistance to Authorities," simpliciter. The
government motion proviso is a procedural limitation upon
the applicability of the factor, but it is not a defining aspect of
the factor itself.13
__________
13 See Abuhouran, 161 F.3d at 213 ("The requirement of a
government motion under s 5K1.1 is a condition limiting a court's
authority to grant a defendant a substantial assistance depar-
ture.... and simply cannot be described as a 'sentencing factor.'
As Koon explained, a departure factor is an "aggravating
or mitigating circumstance of a kind, or to a degree, not
adequately taken into consideration by the Commission." 518
U.S. at 106 (quoting 18 U.S.C. s 3553(b)). In the case of a
downward departure, the factor must, of course, be a "miti-
gating" one. But if, as defendant concedes, "substantial
assistance with a government motion" is a factor the Commis-
sion did adequately take into consideration, the only thing
that distinguishes the factor defendant contends is at issue
here is the absence of a government motion. And we do not
see why the unwillingness of the government to file a motion
should itself be a basis for leniency. Cf. Abuhouran, 161 F.3d
at 213 ("[T]he existence vel non of a government motion
concerning assistance ... is not a sentencing factor. A
sentencing factor is a relevant offense or offender characteris-
tic.").
Once the factor actually at issue here is identified, its place
in the Koon taxonomy becomes clear. Substantial assistance
to authorities cannot be an unmentioned factor since it is
specifically mentioned in section 5K1.1. Nor is it in any way
telling, as the defendant contended at oral argument, that this
factor was not included in the list of forbidden factors cata-
logued in Koon. See 518 U.S. at 93 (listing, inter alia, race,
sex, and economic hardship as forbidden factors).14 Koon did
not list substantial assistance as a forbidden factor because it
is not one; section 5K1.1 specifically contemplates that it may
be used as a ground for departure. Rather, substantial
assistance is an encouraged factor and, like the other encour-
aged factors, the Guidelines provide that a court "may"
__________
... Rather, the factor ... is [defendant's] alleged substantial
assistance to the government.") (internal citations omitted).
14 Indeed, more telling is that Koon's list of forbidden factors
omitted the one factor that is directly related to assistance to
authorities: refusal to assist authorities. See U.S.S.G. s 5K1.2, p.s.
("A defendant's refusal to assist authorities in the investigation of
other persons may not be considered as an aggravating sentencing
factor."). The Court's omission of this factor further supports the
conclusion that the analysis in Koon has little applicability to
departures for substantial assistance.
depart when it is present. Compare U.S.S.G. s 5K1.1, p.s.,
with s 5K2.10, p.s. (court "may" depart based on victim
conduct), and s 5K2.13, p.s. (court "may" depart based on
defendant's diminished mental capacity). There is, therefore,
no warrant for treating substantial assistance as an unmen-
tioned factor within the Koon taxonomy.
This is not to deny that substantial assistance remains
unlike the other departure factors discussed in Koon. It is
the only one that comes with a procedural limitation--the
motion requirement discussed above.15 But it is hardly sur-
prising that the Guidelines should treat this factor differently
from the others. It is the only factor Congress permitted as
a basis for departures below a statutory minimum, see 18
U.S.C. s 3553(e); the only factor Congress specifically direct-
ed the Commission to address for guideline departures, see 28
U.S.C. s 994(n); and the only factor to which the Commission
devoted a separate subpart in the Guidelines Manual, com-
pare U.S.S.G. Ch. 5, Pt. K(1) ("Substantial Assistance to
Authorities"), with id. Pt. K(2) ("Other Grounds for Depar-
ture"). And since substantial assistance was not at issue in
Koon, it is not surprising that the Court did not address its
unique place in the taxonomy.
Our second disagreement with defendant is with his under-
lying assumption that, post-Koon, a "clear statement" canon
governs every aspect of the Guidelines Manual. He urges us
to permit departures without motions because the Guidelines
"nowhere expressly address 'substantial assistance without a
government motion.' " Def. Supp. Br. at 10 (citation omitted)
(emphasis added). The emphasized word, however, is not to
be found in Koon itself, and certainly not in Melendez which
was decided just four days later. See Melendez, 518 U.S. at
129 ("Although the various relevant guidelines provisions
could certainly be clearer, we also believe that the govern-
ment's interpretation of the current provisions is the better
__________
15 See Schaefer, 120 F.3d at 508 ("[A] departure under s 5K1.1,
p.s. is different from the typical basis for departure.... Unlike all
other grounds for departure, in order for a district court to base a
departure upon a defendant's substantial assistance ... the Govern-
ment must first move the district court to do so.").
one."). Indeed, Koon itself said that "an impermissible factor
need not be invoked by name to be rejected." Koon, 518 U.S.
at 110.
It is true that in Koon, the Court held that even though the
Guidelines (in s 5H1.10) make socioeconomic status a forbid-
den factor, a defendant's job loss remains an unmentioned,
permissible one. "[S]ocioeconomic status and job loss," the
Court said, "are not the semantic or practical equivalents of
each other." 518 U.S. at 110. But whether or not "semantic
equivalence" is the test for comparing a listed departure
factor against an asserted one, Koon did not make it the test
for determining whether a listed departure factor is limited
by a procedural condition--let alone a universal rule for
reading the Guidelines Manual as a whole.
Moreover, the reason the Supreme Court looked to seman-
tic or practical equivalence in Koon was that it was a sensible
way to determine whether the factors at issue there were
sufficiently similar to indicate that the Commission's consider-
ation of one meant it had also considered the other. In Koon,
it was not hard to imagine that the Commission could have
considered the relevance of a defendant's pre-offense socio-
economic status (which would go to the question of culpabili-
ty), without at the same time considering the relevance of
post-conviction job loss (which would go to the quite different
question of collateral punishment). As the Court said, "the
link is not so close." 518 U.S. at 510. But here the link is
quite close. "With a motion" and "without a motion" are not
equivalents precisely because they are opposites. And we
find it difficult to believe that the Commission could have so
compartmentalized its thinking as to address directly the
relevance of substantial assistance with a government motion,
yet fail to take account of the opposite possibility that the
government might not file a motion. To the contrary, we
concluded in Part II that the Commission did affirmatively
decide--consciously adopting the model of section 3553(e)--
that substantial assistance without a motion does not qualify
for a departure.16 And we find nothing in Koon to suggest
__________
16 For these reasons, even if the relevant factor here were
"substantial assistance without a motion," we could not regard it as
unmentioned, but instead would have to regard it as forbidden.
that the usual interpretive methods employed in that Part are
inappropriate for reading section 5K1.1.17
IV
In this Part, we consider defendant's additional argument
that even if a court lacks authority to depart without a motion
under section 5K1.1, it has an independent source of depar-
ture authority under Guidelines s 5K2.0. That section begins
by stating:
Under 18 U.S.C. s 3553(b), the sentencing court may
impose a sentence outside the range established by the
applicable guidelines, if 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 guide-
lines....'
Subsequent sentences note that the Commission has identi-
fied certain factors that may warrant departure from the
Guidelines, and discuss circumstances under which depar-
tures based on those factors, as well as additional factors,
may be appropriate. Subsequent guideline sections identify
eighteen such specific factors. U.S.S.G. ss 5K2.1-5K2.18.
As the now-familiar language quoted above suggests, de-
fendant's argument from section 5K2.0 is essentially the same
__________
17 Koon's own subsequent treatment of the job-loss factor further
supports reliance on such methods. Although the Court concluded
that consideration of job loss was not generally prohibited, it held
such consideration was barred when the offense at issue was one
like 18 U.S.C. s 242 (deprivation of rights under color of law). "It
is to be expected that a government official would be subject to" job
loss for such an offense, the Court said, and "so we conclude these
consequences were adequately considered by the Commission in
formulating" the offense guideline applicable to section 242. Koon,
518 U.S. at 110-11. The Court reached this conclusion, however,
despite the absence of any reference to job loss in the applicable
offense guideline, U.S.S.G. s 2H1.4 (1992), and without any other
express evidence indicating the Commission actually had recognized
what the Court thought was logically "to be expected."
argument we considered in Part III, dressed in not very
different clothes. Section 3553(b), quoted in the first line of
section 5K2.0, is the statutory source of authority for all
departures. And the subsequent sentences of section 5K2.0
form part of the basis for the departure taxonomy the Court
developed in Koon. But Koon did not suggest that section
5K2.0 was a source of authority for substantial assistance
departures independent of section 5K1.1. Accordingly, defen-
dant's specific reference to this section adds little to the
argument rejected in Part III. Indeed, as defense counsel
conceded at oral argument, if we read section 5K1.1 as saying
that a substantial assistance departure is permissible only
upon motion of the government, then we cannot read section
5K2.0 as countermanding that injunction. And as we have
already read section 5K1.1 that way, and as we find nothing
in section 5K2.0 to cast doubt on that reading, we conclude
that section 5K2.0 does not provide an independent source of
authority for substantial assistance departures.
This conclusion is strongly supported by the structure of
the Guidelines Manual itself. Chapter 5, Part K of the
Manual is entitled "Departures." Subpart 1 of Part K, which
includes section 5K1.1, is entitled "Substantial Assistance to
Authorities." Subpart 2, which begins with section 5K2.0 and
follows with the eighteen specific departure-factor sections, is
entitled "Other Grounds for Departure."18 This structure
confirms the conclusion that it is section 5K1.1, and not
section 5K2.0, that contains the Commission's guidance re-
garding departures based on substantial assistance. See
Solis, 169 F.3d at 227 (holding that "a district court has no
more authority to depart for substantial assistance under
s 5K2.0 than it has under s 5K1.1"); Abuhouran, 161 F.3d at
213 (same).19
__________
18 U.S.S.G. Ch. 5, Pt. K, Subpt. 2 (emphasis added). The title was
the result of a deliberate choice on the part of the Commission.
Subpart 2 was originally entitled "General Provisions," and was
changed to "Other Grounds for Departure" as part of "editorial and
clarifying" changes made in 1990. See U.S.S.G. App. C., amend.
358.
19 This conclusion is also supported by considering the implica-
tions of accepting defendant's argument. On that argument, it
Defendant briefly asserted a further, closely-related argu-
ment in his initial briefs, although he appeared to abandon it
in his response to the petition for rehearing.20 According to
this argument, even if section 5K1.1 bars substantial assis-
tance departures in the absence of a motion, that section--
like other guideline sections--has a "heartland" and section
5K2.0 permits a departure from it in an atypical case. That
is, even if "ordinary" substantial assistance is not enough for
a departure without a motion, extraordinary assistance could
be.21
We rejected this argument prior to Koon,22 and nothing in
Koon suggests we should revive it now. Koon itself discussed
__________
would be appropriate for a court to depart as long as substantial
assistance were not adequately taken into account in formulating
the "relevant guideline applicable to the particular offense" commit-
ted by the defendant. Def. Resp. to Pet. for Reh'g at 7. But as the
Commission's promulgation of section 5K1.1 suggests, and as de-
fense counsel conceded at oral argument, substantial assistance was
not taken into account in drafting any of the offense guidelines.
Hence, the logical consequence of defendant's theory is that a
defendant's substantial assistance would take a case out of the
heartland of every offense. This would both render the motion
provision of section 5K1.1 essentially irrelevant, and contravene
"the Commission's expectation that departures based on grounds
not mentioned in the Guidelines will be 'highly infrequent.' " Koon,
518 U.S. at 96 (quoting U.S.S.G. Ch. 1, Pt. A).
20 Compare Def. Br. at 37, with Def. Resp. to Pet. for Reh'g at 7.
Defendant may have decided not to press this argument because he
never contended that he provided an extraordinary level of assis-
tance to the government.
21 See supra notes 5, 12 (citing cases discussing this theory).
22 See White, 71 F.3d at 928 ("[The circumstances surrounding a
defendant's cooperation with the government can never be of a kind
or degree not adequately contemplated by the Commission. 'Coop-
eration with the prosecutors simply cannot be sufficiently extraordi-
nary to warrant a departure under s 5K2.0 absent a government
motion under s 5K1.1.' ") (quoting United States v. Aslakson, 982
F.2d 283, 284 (8th Cir. 1992)).
departures from offense guidelines and adjustments, not de-
partures from guidelines that themselves regulate departures.
That is the general context in which the Guidelines Manual
discusses departures as well,23 and we have some doubt as to
whether a "departure from a departure guideline" was con-
templated by the Commission or even constitutes a coherent
sentencing concept 24
We have no doubt, however, that even if otherwise appro-
priate, the departure-from-a-departure concept cannot apply
to section 5K1.1. Nothing about section 5K1.1 suggests that
its procedural bar is limited to "substantial but not extraordi-
nary" assistance25--just as there is no such limitation upon
__________
23 See, e.g., U.S.S.G. s 5K2.0, p.s. ("Where, for example, the
applicable offense guideline and adjustments do take into consider-
ation a factor listed in this subpart, departure from the applicable
guideline range is warranted only if the factor is present to a
degree substantially in excess of that which ordinarily is involved in
the offense.") (emphasis added).
24 Of course, a factor denominated as "discouraged" under the
Koon taxonomy may be used for departure "if the factor is present
to an exceptional degree." Koon, 518 U.S. at 96. But to do so is
not to "depart" from the relevant discouraged factor guideline, since
such guidelines state that specified factors are not "ordinarily"
relevant for departure--implying that under unusual circumstances
they may be. See, e.g., U.S.S.G. s 5H1.6, p.s. (family ties "not
ordinarily relevant" for departure). The same is true for encour-
aged factors already taken into account by applicable offense guide-
lines. See, e.g., U.S.S.G. s 5K2.7, p.s. (departure for disruption of
governmental function "ordinarily would not be justified" when
offense is bribery "unless the circumstances are unusual"). See
generally Koon, 518 U.S. at 94-96. There is no such language in
s 5K1.1.
25 See United States v. Agu, 949 F.2d 63, 65-66 (2d Cir. 1991)
("The 'to a degree' component of section 3553(b) offers no escape
from procedural limitations like the 'motion of the government'
requirement of section 5K1.1. It is one thing to permit a departure
where the commission has assigned a value to some circumstance
and in a particular case that circumstance is present to such a
degree that the sentencing judge may fairly conclude that adequate
the procedural bar of 18 U.S.C. s 3553(e). "Substantial"
assistance is the minimum necessary to qualify for a section
5K1.1 departure; it does not serve as both a floor and a
ceiling. Since we have concluded that the Commission in-
tended section 5K1.1 to bar a departure for substantial
assistance in the absence of a motion, and that section 5K2.0
does not serve as an alternative source of authority for
substantial assistance departures, there is no room for the
loophole defendant seeks. "To hold otherwise 'would under-
mine, if not eviscerate' the government motion requirement of
section 5K1.1." United States v. White, 71 F.3d 920, 928
(D.C. Cir. 1995) (quoting United States v. Watson, 57 F.3d
1093, 1096 (D.C. Cir. 1995)).
V
We conclude that in the absence of a government motion, a
district court lacks authority under the Guidelines to depart
from the applicable sentencing range on the basis of a defen-
dant's substantial assistance. This is not to say that a court
may never sentence below the Guidelines when a prosecutor
refuses to file an authorizing motion. As the Supreme Court
stated in Wade, district courts have the authority to grant
relief "if they find that the refusal was based on an unconsti-
tutional motive," or "if the prosecutor's refusal to move was
not rationally related to any legitimate Government end."
Wade, 504 U.S. at 185-86. A court may also grant relief if
the defendant's cooperation was provided pursuant to a plea
agreement, and the government's refusal to file is attributable
to bad faith or other breach of the agreement. See United
States v. Jones, 58 F.3d 688, 692 (D.C. Cir. 1995); United
States v. Sparks, 20 F.3d 476, 479 (D.C. Cir. 1994); Doe, 934
F.2d at 361 (D.C. Cir.); see also Wade, 504 U.S. at 185 (citing
Santobello v. New York, 404 U.S. 257, 262-63 (1971)). But
the authority to grant relief in such cases derives not from
the Sentencing Guidelines themselves, but from law exoge-
__________
consideration by the Commission was lacking. It is quite another
thing to permit departures from procedural requirements....").
nous to the Guidelines--namely, from principles of contract
and the Constitution.26
The defendant has not contended that any of these princi-
ples apply to his case. Nor has the government filed a
motion on his behalf. Accordingly, a departure is unavailable
and the judgment of the district court is affirmed.
__________
26 Our analysis, although not our result, differs in this regard
from that of the Third Circuit. In Abuhouran, that Circuit conclud-
ed that a prosecutor's refusal to file a substantial assistance motion,
because of unconstitutional motive or bad faith with respect to a
plea agreement, would take the case out of the heartland of s 5K1.1
and give a judge authority to depart under Guidelines s 5K2.0. See
161 F.3d at 214.
Edwards, Chief Judge, and Tatel, Circuit Judge, concur-
ring:
We originally viewed this case as turning on the difference
between two distinct departure factors--substantial assis-
tance with a government motion versus substantial assistance
without a government motion--but we are now persuaded
otherwise. Having benefitted from en banc review, we are
convinced by the Guidelines' language, structure, and drafting
history that the relevant departure factor is properly charac-
terized simply as substantial assistance, that the government
motion requirement constitutes a procedural limitation on its
availability, and that the Sentencing Commission "did intend
to preclude departures without [government] motions." Maj.
Op. at 6.
We continue to believe, however, that courts must exercise
particular caution before concluding that the Commission
actually has chosen to limit district judges' traditional sen-
tencing discretion, and that the expressio unius maxim, by
itself, is "too thin a reed" to have much force in this context.
Cf. Mobile Communications Corp. of Am. v. FCC, 77 F.3d
1399, 1405 (D.C. Cir. 1996) (internal quotation and citation
omitted). To be sure, exercising caution is not the same as
applying a full-fledged "plain statement" canon, but in close
cases we should steer away from inferring that the Commis-
sion has limited traditional judicial sentencing discretion. As
the Commission itself has recognized, the Guidelines were
never intended to remain static; to the contrary, the Commis-
sion's ability continually to monitor an evolving federal sen-
tencing common law is central to its goal of refining and
improving the Guidelines over time. See U.S.S.G. Ch.1, Pt.A,
intro. cmt. 4(b). Judge Garland's thorough opinion reflects
the scrutiny appropriate in these cases.
* * *
We do not understand why Judge Henderson feels the need
to accuse Senior Judge Buckley and us of "disregard[ing] our
established [Irons footnote] procedure and, far worse,
fail[ing] to honor the bedrock principle of stare decisis."
Henderson Op. at 1. She is wrong on both counts.
To begin with, stare decisis simply has no applicability if a
prior precedent has been altered by an intervening decision
from a higher court. No case Judge Henderson cites casts
doubt on this unassailable proposition. Acting in good faith,
the three-judge panel in this case unanimously concluded that
Koon v. United States, 518 U.S. 81 (1996), effectively over-
ruled this court's prior decision in United States v. Ortez, 902
F.2d 61 (D.C. Cir. 1990), by altering the analytical framework
governing the availability of sentencing departures. The fact
that we ultimately turned out to be wrong in our application
of Koon does not mean that we "failed to honor" stare decisis.
Judge Henderson also misrepresents this court's Irons
footnote policy. Although the policy certainly permits a
panel to use an Irons footnote to secure full-court endorse-
ment before ruling that an intervening Supreme Court deci-
sion has overruled a circuit precedent, the policy does not
require it. In fact, in a passage that Judge Henderson fails
to cite, the policy clearly states that:
Nothing in the foregoing statement of the court's
policy is intended ... to limit a panel's discretion to
decide a case without resort to en banc endorsement. In
other words, a panel may always.... determine ...
that a prior holding has been superseded, and hence is no
longer valid as precedent....
Policy Statement on En Banc Endorsement of Panel Deci-
sions 2-3 (Jan. 17, 1996) (emphasis added); see also Dellums
v. United States Nuclear Regulatory Comm'n, 863 F.3d 968,
978 n.11 (D.C. Cir.1988) (Silberman, J.) (rejecting the notion
that en banc review is required to "formally bur[y]" circuit
precedent that is "out of step" with intervening Supreme
Court precedent because "it is black letter law that a circuit
precedent eviscerated by subsequent Supreme Court cases is
no longer binding on a court of appeals") (citing City of
Lafayette v. Louisiana Power & Light Co., 532 F.2d 431, 435
(5th Cir. 1976) ("It is settled that the rule against inconsistent
panel decisions has no application when intervening Supreme
Court precedent dictates a departure from a prior panel's
holding.")). Intended to promote efficiency, the Irons foot-
note policy allows--but expressly does not require--three-
judge panels to conclude that it would be economical to
attempt to secure unanimous full-court consent before decid-
ing that a circuit precedent is no longer good law. Indeed,
just last month a panel of this court comprised of Judges
Ginsburg, Sentelle, and Randolph held, also without using an
Irons footnote, that an otherwise controlling circuit precedent
had been superseded by an intervening Supreme Court deci-
sion. See Kooritzky v. Herman, No. 98-5424, 1999 WL
397427 (D.C. Cir. June 18, 1999). Again, the fact that the
panel's interpretation of an intervening Supreme Court deci-
sion turns out to have been mistaken in the instant case does
not indicate that we "disregarded" anything.
Equally misleading is Judge Henderson's statement that
the panel's treatment of circuit precedent was "sub silentio."
Henderson Op. at 4. To the contrary, the panel opinion
expressly stated that: "Insofar as this [holding] contradicts
our holding in Ortez that district courts lack authority to
consider substantial assistance absent a government motion,
Koon effectively overrules that aspect of Ortez." In re
Sealed Case, 149 F.3d 1198, 1204 (D.C. Cir. 1998). Further-
more, pursuant to this court's rules, the opinion was circulat-
ed to the full court prior to its release; every judge was fully
aware of and had an opportunity to comment on the opinion
before it issued.
Though in error, the panel opinion did not betray any
judicial policy, nor did it indicate that we were somehow
faithless to the rule of law.
Sentelle, Circuit Judge, concurring: I do not disagree
with any part of the court's thorough opinion affirming the
district court. I write separately only to say that I think this
is not nearly so close a case as the very thoroughness of the
majority opinion might imply. As the court states, "Our
analysis begins with the language of section 5K1.1, ... 'Upon
motion of the government stating that the defendant has
provided substantial assistance in the investigation or prose-
cution of another person who has committed an offense, the
court may depart from the guidelines.' " Maj. Op. at 4. As
the court's opinion suggests, the venerable canon of construc-
tion expressio unius est exclusio alterius, that is, "the men-
tion of one thing implies exclusion of another," would support
an inference that because the Commission expressly provided
for departure upon substantial assistance upon the motion of
the government, the Commission intended to exclude the
possibility of departure without such a government motion.
While I find the majority's further reasoning convincing, and
perhaps helpful, in my view, that inference alone would be
sufficient to reach the holding entered by the court today.
While I accept, and indeed fully endorse, the holding of
Shook v. D.C. Financial Responsibility & Management As-
sistance Authority, 132 F.3d 775, 782 (D.C. Cir. 1998), to the
effect that the force of that canon "in particular situations
depends entirely on context, whether or not the draftsmen's
mention of one thing, like a grant of authority, does really
necessarily, or at least reasonably, imply the preclusion of
alternatives," in the context of the guideline, I think that the
mention of the government's motion indeed does imply such
an intent to exclude departure without such motion. In
Shook, we emphasized that the expressio unius maxim
"should be used as a starting point in statutory construction."
Id. We, however, observed that the "force" of the canon
"turn[s] on whether, looking at the structure of the statute
and perhaps its legislative history, one can be confident that a
normal draftsman when he expressed 'the one thing' would
have likely considered the alternatives that are arguably
precluded." Id. After examining the relevant guideline lan-
guage and the context in which it was adopted, I conclude
that a normal draftsman providing for departure upon gov-
ernment motion would have likely considered the alterna-
tive--departure without government motion. I therefore
conclude that the expressio unius maxim precludes departure
under section 5K1.1 absent a government motion.
In reaching this conclusion, my application of the expressio
unius canon is assisted by the equally venerable canon of
construction that courts, in construing a statute, or in this
case a guideline, "will avoid a reading which renders some
words altogether redundant." Gustafson v. Alloyd Co., 513
U.S. 561, 574, 115 S. Ct. 1061, 1069 (1995). The construction
offered by appellant in the present case, that is, that the
Commission did not by expressly including the authority of a
court to depart upon motion of the government intend to
exclude departure without that motion renders the Commis-
sion's inclusion of that condition "altogether redundant."
Otherwise put, if the Commission intended for courts to be
empowered to depart on the basis of substantial assistance
without a government motion, why did the Commission in-
clude the phrase "upon motion of the government" in the
guideline at all? Appellant not having supplied any satisfac-
tory answer to that question, I would hold that in the context
of the guideline, the expressio unius canon applies with full
force, and the authority of the court to depart without such a
motion is impliedly excluded.
In short, I reiterate that I do not disagree with the more
detailed analysis offered by the court--indeed I find it both
persuasive and correct. But I do not think it necessary to
our decision.
Karen LeCraft Henderson, Circuit Judge, concurring:
I wholeheartedly agree with the majority's holding which
disposes of this case with clarity and in full accord with the
decisions of courts, including ours, that have ruled on the
issue. I write separately to register my concern about the
process leading up to the en banc affirmance of the district
court--which process, I am convinced, disregarded our estab-
lished procedure and, far worse, failed to honor the bedrock
principle of stare decisis. Let me explain.
The United States Supreme Court has repeatedly charac-
terized stare decisis as "the preferred course because it
promotes the evenhanded, predictable, and consistent devel-
opment of legal principles, fosters reliance on judicial deci-
sions, and contributes to the actual and perceived integrity of
the judicial process." See, e.g., Hohn v. United States, 118
S. Ct. 1969, 1977 (1998) (quoting Payne v. Tennessee, 501 U.S.
808, 827 (1991)). For this court, "[t]he doctrine of stare
decisis 'demands that we abide by a recent decision of one
panel of this court unless the panel has withdrawn the opinion
or the court en banc has overruled it.' " Department of
Treasury v. FLRA, 862 F.2d 880, 882 (D.C. Cir. 1988) (quot-
ing Brewster v. Commissioner, 607 F.2d 1369, 1373 (D.C. Cir.
1979)). Since at least the early 1980s, the court has from
time to time used the "Irons footnote" to overrule a prior
decision without a full-blown en banc rehearing. See Irons v.
Diamond, 670 F.2d 265, 268 n. 11 (D.C. Cir. 1981). Under
the Irons footnote procedure a panel decision departing from
precedent is circulated to the full court for endorsement
before issuance and issued with a footnote indicating the
endorsement. Over the years, this court has invoked widely
varying justifications for using the procedure, including to
resolve conflicts in circuit law,1 to expand or limit earlier
decisions,2 to reject "dicta"3 or simply to overrule a decision
__________
1 See, e.g., Irons v. Diamond, 670 F.2d at 268 n. 11; Lorion v.
United States Nuclear Regulatory Comm'n, 712 F.2d 1472, 1479
(D.C. Cir. 1983).
2 See, e.g., Londrigan v. FBI, 722 F.2d 840, 844-45 (D.C. Cir.
1983) (purporting to "add to what was said"); United States v.
Brawner, 32 F.3d 602, 603 (D.C. Cir. 1994) ("limiting the scope").
3 See, e.g., United States Dep't of Navy v. FLRA, 952 F.2d 1434,
deemed incorrect or outdated.4 To impose some order on
Irons footnote use, the court promulgated a "policy state-
ment" in 1996 setting out specific circumstances "for which
the court reaffirm[ed] the propriety of [the footnote's] use,"
among them when "overruling a more recent precedent
which, due to an intervening Supreme Court decision, ... a
panel is convinced is clearly an incorrect statement of current
law." Cf. Chemical Waste Management, Inc. v. United
States Envtl. Agency, 873 F.2d 1477, 1481 (rejecting circuit
precedent presuming that statutory reference to "hearing"
requires formal adjudicatory procedure largely because of
intervening holding in Chevron USA, Inc. v. Natural Re-
sources Defense Council, Inc., 467 U.S. 837, 843 (1984)). As
the majority opinion notes, Maj. Op. at 3, the panel here
explicitly acknowledged that its holding "contradicts our hold-
ing in [United States v. Ortez, 902 F.2d 61, 64 (D.C. Cir.
1990)] that district courts lack authority to consider substan-
tial assistance absent a government motion," In re Sealed
Case, 149 F.3d 1198, 1204 (D.C. Cir. 1998). While it did
discuss, and then reject, Ortez, concluding that "Koon effec-
tively overrules that aspect of Ortez," 149 F.3d at 1204, it did
so with no Irons footnote seeking en banc endorsement
(based presumably on "an intervening Supreme Court deci-
sion" making Ortez "clearly an incorrect statement of current
law"). Had the panel opinion been circulated to the full court
with an Irons footnote, the opinion would not have been
endorsed unanimously as required (as manifested by today's
__________
1439 (D.C. Cir. 1992); Chemical Waste Management, Inc. v. United
States Envtl. Protection Agency, 873 F.2d 1477, 1482 (D.C. Cir.
1989); Melcher v. Federal Open Market Committee, 836 F.2d 561,
563-64 (D.C. Cir. 1987); Center for Science in Pub. Interest v.
Regan, 802 F.2d 518, 524 (D.C. Cir. 1986).
4 See, e.g., Harbor Ins. Co. v. Schnabel Found. Co., Inc., 946 F.2d
930, 936 (D.C. Cir. 1991) ("wrongly decided" opinion); United States
v. Marble, 940 F.2d 1543, 1547 (D.C. Cir. 1991) ("line of cases" that
"ha[d] become a victim of the shifting sands of statute and case
law").
lopsided vote to the contrary) and it could not have issued in
the form it did.5 The fact that we are correcting our course
now does not, and should not, obscure what necessitated the
correction.
Even worse, the panel made no mention of five more
recent circuit opinions (at least two of which the government
expressly relied on, see Panel Brief of Appellee at 7, 34),
which, again as the majority notes, reached the same conclu-
sion as Ortez. See Maj. Op. at 4 & n. 4. See United States v.
Dyce, 91 F.3d 1462, 1469 (D.C. Cir. 1996) ("[T]he Sentencing
Guidelines make specific provision [in U.S.S.G. s 5K1.1] for a
downward departure where a defendant supplies substantial
assistance to the Government, but only where the Govern-
ment certifies to the district court that the help received has
been of sufficient value to warrant the departure.") (emphasis
added); United States v. White, 71 F.3d 920 (D.C. Cir. 1995)
(holding that "in the absence of a government motion the
district court has no authority to depart under section
5K1.1."); United States v. Jones, 58 F.3d 688, 691 (D.C. Cir.
1995) ("[T]he U.S. Attorney enjoys extraordinary power un-
der section 5K1.1 because, by its terms, a motion of the
Government is a prerequisite to the exercise of judicial dis-
cretion to depart below the Guidelines range.") (citation omit-
ted); United States v. Watson, 57 F.3d 1093, 1096-97 (D.C.
Cir. 1995) ("[I]t is well established that a court may not order
a departure on the ground of the defendant's assistance if the
__________
5 I believe our Irons footnote procedure has serious flaws. It has
evolved from an expedient device to reconcile inconsistent circuit
holdings into a summary method of overruling unambiguous circuit
precedent, without any of the safeguards or formalities attending
the en banc process. A three-judge panel determines that full-
court consideration is warranted and non-panel members concur
without benefit of briefing or argument. The resulting decision is
then announced by footnote. Reasoned decisionmaking and stare
decisis call for a more deliberate process. If we wish to change our
precedent, we should invoke the en banc mechanism expressly
authorized for that purpose by the Federal Rules of Appellate
Procedure. See Fed. R. App. P. 35. As long as the Irons footnote
procedure exists, however, the least we should do is follow it. See,
e.g., Byrd v. Reno, No. 99-5070 (D.C. Cir. June 22, 1999).
government does not so move under section 5K1.1.") (citing
Ortez, 902 F.2d at 64); United States v. Doe, 934 F.2d 353,
356-58 (D.C. Cir. 1991) (holding that s 5K1.1's "government
motion requirement" does not violate due process, thereby
"adher[ing] to prior intimations in our own precedent") (citing
Ortez).6 With one sub silentio sweep, the panel reversed this
substantial body of circuit authority. "Stare decisis" means
"to stand by things decided." Bryan A. Garner, A Dictionary
of Modern Legal Usage 515 (1987). Its protection extends to
Ortez as well as the five other cases decided by this court.
__________
6 Nor did the panel note the decision of the United States
Supreme Court, discussed at length in United States v. White, that
stated: "[The petitioner's] position is consistent with the view,
which we think is clearly correct, that in both [18 U.S.C.] s 3553(e)
and s 5K1.1 the condition limiting the court's authority gives the
Government a power, not a duty, to file a motion when a defendant
has substantially assisted." Wade v. United States, 504 U.S. 181,
185 (1992).