United States v. Winebarger

PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________

No. 11-1905
_____________

UNITED STATES OF AMERICA,
Appellant

v.

THOMAS DAVID WINEBARGER
_____________

Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Criminal No. 09-cr-00279-001)
District Judge: Honorable Richard P. Conaboy
_____________

Argued November 17, 2011

Before: RENDELL, AMBRO and NYGAARD, Circuit
Judges

(Opinion Filed: December 23, 2011)
_____________
Stephen R. Cerutti, II, Esq. [ARGUED]
Office of United States Attorney
228 Walnut Street,
P.O. Box 11754
220 Federal Building and Courthouse
Harrisburg, PA 17108

Todd K. Hinkley, Esq.
Office of United States Attorney
235 North Washington Avenue
P.O. Box 309, Suite 311
Scranton, PA 18503
Counsel for Appellant

Robert A. Hoffa, Esq. [ARGUED]
Campana, Lovecchio & Morrone
602 Pine Street
Williamsport, PA 17701
Counsel for Appellee
_____________

OPINION OF THE COURT
_____________

RENDELL, Circuit Judge.

In this appeal, we are asked to determine what factors
a district court may consider when sentencing a defendant
below a statutory minimum term of imprisonment in order to
take his assistance to the government into account pursuant to
18 U.S.C. § 3553(e). We hold that a district court cannot use
factors unrelated to a defendant‟s substantial assistance to the
government in order to reduce a sentence below the minimum

2
called for under statute. We will therefore vacate the
judgment of sentence and remand for resentencing.

I. Background

In March 2007, police officers went to the residence of
appellee Thomas David Winebarger following complaints
they had received of gunshots heard in the area. Winebarger
admitted to the officers that he had fired a shot at a tree on his
property using a rifle he owned. He claimed he used the gun
for hunting. When authorities learned that Winebarger was a
convicted felon, he was charged with one count of being a
felon in possession of a firearm, in violation of 18 U.S.C. §
922(g). Winebarger agreed to plead guilty and to cooperate
with the government. He formally entered a plea of guilty on
December 22, 2009.

Before sentencing, the U.S. Probation Office prepared
a pre-sentence investigation report and determined that
Winebarger qualified as a career offender under the Armed
Career Criminal Act, 18 U.S.C. § 924(e). As a result, his
total offense level was calculated as 30 and his criminal
history category as IV, yielding an advisory guidelines range
of 135 to 168 months. However, Winebarger‟s status as a
career offender subjected him to a mandatory minimum
sentence of 180 months.1 Winebarger objected to his
classification as a career offender, claiming that one of the
predicate offenses that the Probation Office considered in

1
Absent the career offender designation, Winebarger‟s
offense level would have been 10, and his criminal history
category would have been II, yielding an advisory guidelines
range of 8 to 14 months‟ imprisonment.

3
determining that he is an armed career felon—a 1980
Pennsylvania simple assault conviction—was not a predicate
violent felony under 18 U.S.C. § 924(e). The District Court
held a hearing on this issue on October 6, 2010, and took the
matter under advisement.

At Winebarger‟s sentencing, the District Court
announced, without explanation, that it was overruling
Winebarger‟s objection and adopting the Probation Office‟s
view that Winebarger qualified as a career offender.
However, the Court determined that it was not bound by the
15-year mandatory minimum sentence because the
government had filed, under seal, a motion requesting a
downward departure pursuant to 18 U.S.C. § 3553(e). That
provision reads:

Limited authority to impose a sentence below
a statutory minimum. — Upon motion of the
Government, the court shall have the authority
to impose a sentence below a level established
by statute as a minimum sentence so as to
reflect a defendant‟s substantial assistance in
the investigation or prosecution of another
person who has committed an offense. Such
sentence shall be imposed in accordance with
the guidelines and policy statements issued by
the Sentencing Commission pursuant to section
994 of title 28, United States Code.

18 U.S.C. § 3553(e). Winebarger had provided information
regarding the manufacture and sale of methamphetamine in
the Bradford County area of Pennsylvania. The government
also noted the limitations of Winebarger‟s assistance: he
declined requests to engage in undercover investigations or

4
other more substantial cooperation. In addition, the
government commented that Winebarger provided no live
testimony and that the information he offered had yielded no
new investigations or arrests.

The District Court granted the government‟s § 3553(e)
motion. Acknowledging our decision in United States v.
Torres, 251 F.3d 138 (3d Cir. 2001), the Court briefly
discussed how the factors listed in section 5K1.1 of the
sentencing guidelines applied in Winebarger‟s case. Section
5K1.1 reads:

Upon 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, the court
may depart from the guidelines.
(a) The appropriate reduction shall be
determined by the court for reasons stated that
may include, but are not limited to,
consideration of the following:
(1) the court‟s evaluation of the significance
and usefulness of the defendant‟s
assistance, taking into consideration the
government‟s evaluation of the
assistance rendered;
(2) the truthfulness, completeness, and
reliability of any information or
testimony provided by the defendant;
(3) the nature and extent of the defendant‟s
assistance;
(4) any injury suffered, or any danger or risk
of injury to the defendant or his family
resulting from his assistance;

5
 (5) the timeliness of the defendant‟s
assistance.

U.S.S.G. § 5K1.1. The District Court noted that Winebarger
gave the government helpful information, though it led to no
extensive investigation. The Court also noted that the
government said Winebarger‟s help was reliable and timely,
and that Winebarger‟s cooperation with the government did
not pose a great risk of injury to him.

The District Court then went on to note other factors that
influenced it in sentencing Winebarger:

“most of the [defendant‟s] criminal conduct” occurred
almost thirty years ago (App. 37-38);
He has “many brothers and sisters and children, but
[he is] not close to any of them” (App. 39-40);
He is a lifelong resident of Bradford county;
He lives in a trailer with no electricity, running water,
telephone or sewer line;
He receives total disability payments from Social
Security;
He has high blood pressure, congestive heart failure,
upper spine problems, and leukemia;
“Most importantly,” imprisoning him “would cost the
taxpayers a small fortune, because [he is] a sick person
and would require care, even in prison” (App. 41);
He has few educational or vocational skills;
His liabilities exceed his assets;
It is “very questionable” whether he used the gun for
which he was charged “in any inappropriate or illegal
way” (App. 42).

6
The Court then imposed a prison sentence of time-served (one
month and three days) and five years of supervised release.

The government then made a statement on the record
that it believed it was not given an opportunity to give a
recommendation with regard to sentencing, but that if it had,
it would have recommended a sentence at the bottom of the
guidelines range: 135-168 months. The government
explained that this recommendation was based on
Winebarger‟s prior record, including crimes committed
within the last ten years.

According to the government, it realized shortly after
Winebarger‟s sentencing that the final page of its section
3553(e) motion—in which the government recommended a
sentence below the 180-month mandatory minimum but
within the 135-168 month guidelines range—was
inadvertently not filed with the Court. The government
therefore filed a motion pursuant to Fed. R. Crim. P. 35 to
correct the sentence, arguing that the sentence reflected a
misunderstanding as to its recommendation. The District
Court denied that motion and this appeal followed.2

II. Discussion

A.

2
We have jurisdiction pursuant to 28 U.S.C. § 1291 and 18
U.S.C. § 3742. We review a district court‟s sentence for
procedural and substantive reasonableness, applying an abuse
of discretion standard. United States v. Tomko, 562 F.3d 558,
567 (3d Cir. 2009) (en banc).

7
 The government argues that the sentence ordered by
the District Court was procedurally unreasonable in that it
reduced Winebarger‟s sentence below the mandatory
minimum sentence of imprisonment based on factors
unrelated to Winebarger‟s cooperation with the government.
We agree.

When Congress establishes a minimum sentence for a
particular crime, district courts are required to sentence
defendants guilty of that crime to a term of imprisonment no
less than the Congressionally prescribed minimum, unless an
explicit exception to the minimum sentence applies. See
United States v. Kellum, 356 F.3d 285, 289 (3d Cir. 2004);
see also United States v. Johnson, 580 F.3d 666, 673 (7th Cir.
2009). Section 3553(e) provides one such limited exception
to the general rule. Kellum, 356 F.3d at 289 (describing §§
3553(e) and (f) as “narrow exceptions”); Johnson, 580 F.3d at
673 (“[W]ithout the statutory mandate in § 3553(e), the
district court would have no authority whatsoever to depart
below the statutory minimum in [defendant‟s] case.”). That
the exception is limited is clear from the language of §
3553(e), entitled “Limited authority to impose a sentence
below a statutory minimum,” which states in part that “[u]pon
motion of the Government, the court shall have the authority
to impose a sentence below a level established by statute as a
minimum sentence so as to reflect a defendant‟s substantial
assistance in the investigation or prosecution of another
person who has committed an offense.” 18 U.S.C. § 3553(e)
(emphasis added).3 It is of paramount importance here that

3
We recognize that the title of § 3553(e) is not controlling or
dispositive, but it at least reinforces our view that this
statutory provision provides a limited exception to a statutory

8
Congress used the language “so as to reflect a defendant‟s
substantial assistance.” Id. Presumably, Congress could have
written the first sentence of § 3553(e) to read, “Upon motion
of the Government indicating that a defendant has given
substantial assistance in the investigation or prosecution of
another person who has committed an offense, the court shall
have the authority to impose a sentence below a level
established by statute as a minimum sentence.” This,
however, was not the language Congress chose. Congress‟s
chosen language explicitly indicates that the reduction below
the statutory minimum is to “reflect” a defendant‟s assistance
to the government in investigating and prosecuting other
offenders. This language does not give a court carte blanche
to sentence a defendant below a statutory minimum sentence
based on non-assistance-related factors once it is established
that the defendant provided assistance to the government. See
United States v. Williams, 474 F.3d 1130, 1132 (8th Cir.
2007) (“If a district court imposes a sentence below the
statutory minimum in part so as to reflect the history and
characteristics of the defendant, see § 3553(a)(1), then the
court exceeds the limited authority granted by § 3553(e).”). It
limits the district court to considering factors that “reflect” the
defendant‟s assistance to law enforcement authorities.

minimum sentence. See United States v. Tidwell, 521 F.3d
236, 246 (3d Cir. 2008) (noting that statutory title reinforces
interpretation of text and structure of statute); United States v.
Williams, 474 F.3d 1130, 1132 (8th Cir. 2007). But see
United States v. A.B., 529 F.3d 1275, 1281 n.8 (10th Cir.
2008) (declining to rely on statutory title in holding that a §
3553(e) reduction cannot be based on non-assistance-related
factors).

9
 Further evidence of the limited authority that § 3553(e)
grants to district courts is found by comparing that
provision‟s language to the text of 18 U.S.C. § 3553(f), the
so-called sentencing “safety valve,” which states that, if
certain conditions are met, “the court shall impose a sentence
pursuant to guidelines promulgated by the United States
Sentencing Commission under section 994 of title 28 without
regard to any statutory minimum sentence.” 18 U.S.C. §
3553(f) (emphasis added).4 As the First Circuit Court of

4
That provision, in its entirety, reads:

Limitation on applicability of statutory
minimums in certain cases. —
Notwithstanding any other provision of law, in
the case of an offense under section 401, 404, or
406 of the Controlled Substances Act (21
U.S.C. 841, 844, 846) or section 1010 or 1013
of the Controlled Substances Import and Export
Act (21 U.S.C. 960, 963), the court shall impose
a sentence pursuant to guidelines promulgated
by the United States Sentencing Commission
under section 994 of title 28 without regard to
any statutory minimum sentence, if the court
finds at sentencing, after the Government has
been afforded the opportunity to make a
recommendation, that--

(1) the defendant does not have more than 1
criminal history point, as determined under the
sentencing guidelines;

10
Appeals has noted, “section 3553(f) demonstrates Congress‟s

(2) the defendant did not use violence or
credible threats of violence or possess a firearm
or other dangerous weapon (or induce another
participant to do so) in connection with the
offense;

(3) the offense did not result in death or serious
bodily injury to any person;

(4) the defendant was not an organizer, leader,
manager, or supervisor of others in the offense,
as determined under the sentencing guidelines
and was not engaged in a continuing criminal
enterprise, as defined in section 408 of the
Controlled Substances Act; and

(5) not later than the time of the sentencing
hearing, the defendant has truthfully provided to
the Government all information and evidence
the defendant has concerning the offense or
offenses that were part of the same course of
conduct or of a common scheme or plan, but the
fact that the defendant has no relevant or useful
other information to provide or that the
Government is already aware of the information
shall not preclude a determination by the court
that the defendant has complied with this
requirement.

18 U.S.C. § 3553(f).

11
ability to deploy unambiguous statutory language when it
intends to authorize sentencing judges to ignore the
limitations imposed by statutory minimum sentences and treat
a „mandatory minimum‟ case like any other.” United States
v. Ahlers, 305 F.3d 54, 59 (1st Cir. 2002).5 Upon a finding
that the “safety valve” factors are met, a district court is
authorized by Congress to sentence the defendant “pursuant
to [the sentencing guidelines] without regard to any statutory
minimum sentence.” 18 U.S.C. § 3553(f). This sweeping
“without regard” language stands in marked contrast to the
“so as to reflect” language of § 3553(e), which is more
circumscribed. See Ahlers, 305 F.3d at 59. While § 3553(f)
instructs district courts to disregard a statutory minimum in
appropriate circumstances, § 3553(e) retains the statutory
minimum as a reference point and explicitly notes the factor
that such a divergence from the reference point should reflect.
See id.; United States v. A.B., 529 F.3d 1275, 1284 (10th Cir.
2008).

Our interpretation of section 3553(e) is buttressed by
section 5K1.1 of the United States Sentencing Guidelines.6
5
It is worth noting that subsections (e) and (f) were added to
section 3553 by different Congresses. Compare Anti-Drug
Abuse Act of 1986, Pub. L. No. 99-570, § 1007(a), 100 Stat.
3207 (adding subsection (e) to 18 U.S.C. § 3553), with
Violent Crime Control and Law Enforcement Act of 1994,
Pub. L. No. 103-322, § 80001(a), 108 Stat. 1796 (adding
subsection (f) to 18 U.S.C. § 3553).
6
Section 5K1.1 is a Sentencing Commission policy statement
that, by its own terms, relates to departures from a sentencing
guidelines range, but the Supreme Court has recognized its
applicability to motions requesting a departure below a

12
That subsection advises that a district court, when
determining the extent to which a defendant‟s sentence
should be reduced based on his substantial assistance to law
enforcement authorities, should consider:

(1) the court‟s evaluation of the significance
and usefulness of the defendant‟s
assistance, taking into consideration the
government‟s evaluation of the
assistance rendered;
(2) the truthfulness, completeness, and
reliability of any information or
testimony provided by the defendant;
(3) the nature and extent of the defendant‟s
assistance;

statutory minimum. Melendez v. United States, 518 U.S. 120,
129 (1996) (“Section 5K1.1(a) may guide the district court
when it selects a sentence below the statutory minimum.”);
see also id. at 132 (Souter, J., concurring) (“[T]he Application
Notes indicate that § 5K1.1 applies to motions under §
3553(e)); Ahlers, 305 F.3d at 57 n.1 (discussing § 3553(e) and
noting that “USSG § 5K1.1 is the principal guideline adopted
by the Sentencing Commission to aid district courts in
fashioning substantial assistance departures”); United States
v. Casiano, 113 F.3d 420, 429 (3d Cir. 1997) (describing §
3553(e) and § 5K1.1 as being governed by similar language).
The District Court here recognized the applicability of §
5K1.1 to a § 3553(e) motion, invoking our decision in United
States v. Torres, 251 F.3d 138 (3d Cir. 2001), and discussing
the enumerated § 5K1.1 factors, even though the only motion
filed was pursuant to § 3553(e).

13
 (4) any injury suffered, or any danger or risk
of injury to the defendant or his family
resulting from his assistance;
(5) the timeliness of the defendant‟s
assistance.

U.S.S.G. § 5K1.1(a). Although the Sentencing Commission
noted that this list is not exhaustive, each of the factors relates
to the defendant‟s assistance and none relates to the
defendant‟s personal characteristics, his background, or the
nature of his offense. United States v. Casiano, 113 F.3d 420,
429 (3d Cir. 1997). Although the Commission did not
purport to give a complete list of factors relevant to
determining the appropriate sentence reduction for a
defendant who has given substantial assistance to law
enforcement authorities, the interpretive maxim of ejusdem
generis makes clear that unlisted factors must bear some
relationship to the defendant‟s assistance. United States v.
Thomas, 930 F.2d 526, 531 (7th Cir. 1991), rev’d on other
grounds by United States v. Canoy, 38 F.3d 893 (7th Cir.
1994).

Winebarger urges that our opinion in Casiano dictates
that the sentencing court may consider factors other than a
defendant‟s substantial assistance to the government when
imposing a sentence below a statutory minimum. In Casiano,
we held that a district court may consider factors unrelated to
the defendant‟s cooperation with the government as a basis
for choosing to limit the extent of a departure pursuant to §
5K1.1. 113 F.3d at 430. There, the district court departed
from a guidelines sentence based on the defendant‟s
cooperation with the government, but stated that it would
have departed even further had it considered only the factors
articulated in section 5K1.1. Id. at 428. The district court

14
stated that the extreme seriousness of the crime and the
impact on the victim counseled against departing too far from
the guidelines range. Id. We affirmed the judgment of
sentence, saying that the nature and circumstances of the
offense are permissible reasons for a district court to limit the
extent of a § 5K1.1 departure. Id. at 429-31.

Viewed in isolation, our holding in Casiano might be
read to support the proposition that district courts may
consider non-assistance-related factors during sentencing
when the government has filed a motion averring that the
defendant provided it substantial assistance. However,
neither the language nor the logic of Casiano supports such a
broad rule.

Although we held that a court may consider factors
unrelated to a defendant‟s assistance to the government in
deciding to limit a departure under § 5K1.1, we engaged in an
extensive discussion that presaged our holding today. We
noted that “[t]he limitation of the grounds for departures
under § 5K1.1 to factors relating to the defendant‟s
substantial assistance to the authorities finds support in the
language of the guideline and its commentary.” Id. at 430. In
addition, we noted that Section 5K1.1 is entitled “Substantial
Assistance to Authorities,” and that the background
commentary states that “[l]atitude is . . . afforded the
sentencing judge to reduce a sentence based upon variable
relevant factors, including those listed above.” Id. (quoting
U.S.S.G § 5K1.1 & background commentary (1995)). We
also cited with approval cases from other courts of appeals
holding that only factors relating to a defendant‟s cooperation
may be used as the basis for granting a departure under §
5K1.1 or § 3553(e). Id. at 429 (acknowledging a “growing
body of precedent that holds that only factors relating to a

15
defendant‟s cooperation may be used as the basis of a
departure under § 5K1” and citing a “similar holding” made
in the context of § 3553(e)). We pointed out that the bases
for departures listed in § 5K1.1, although not meant to be
exhaustive, are instructive as to the district court‟s discretion
once it has granted a § 5K1.1 motion. All the enumerated
factors in §5K1.1 “concern the degree, efficacy, timeliness,
and circumstances of a defendant‟s cooperation.” Id.
Furthermore, we stated that “had the district court decided to
depart downward on a § 5K1.1 motion because it determined
that the crime was not serious or the victim was only injured
insignificantly, it would have been error.” Id. at 430.

Accordingly, we reasoned that the outer limit of the
permissible departure is set by considering the nature and
extent of the assistance rendered. However, we rejected
Casiano‟s argument that, because courts have held that factors
wholly unrelated to substantial assistance are not to be
considered when determining the scope of a permissible
departure from the guideline sentencing range pursuant to §
5K1.1, factors unrelated to substantial assistance should not
be considered when a court chooses to limit the extent of the
departure. Notwithstanding “the facial appeal of symmetry”
of this argument, we opined that “it was not inconsistent for
the Sentencing Commission to have circumscribed the district
court‟s discretion for departures for substantial assistance in
only one direction, i.e., when a district court does, in fact,
depart.” Id. Thus, Casiano permits a district court to
consider non-assistance-related factors in determining
whether to limit or withhold an assistance-related sentencing
departure; it does not throw the door open for district courts
to consider those factors in order to extend or increase a

16
departure beyond what a defendant‟s cooperation with the
government warrants.

We note that every circuit court of appeals to address
the issue we face today has held that a court may not use
factors unrelated to a defendant‟s assistance to the
government in reducing the defendant‟s sentence below the
statutory minimum. See Johnson, 580 F.3d at 673; United
States v. Jackson, 577 F.3d 1032, 1036 (9th Cir 2009); United
States v. Burns, 577 F.3d 887, 894 (8th Cir. 2009) (en banc);
United States v. Hood, 556 F.3d 226, 234 n.2 (4th Cir. 2009);
A.B., 529 F.3d at 1280-83; United States v. Richardson, 521
F.3d 149, 159 (2d Cir. 2008); United States v. Mangaroo, 504
F.3d 1350, 1355-56 (11th Cir. 2007); Williams, 474 F.3d at
1132; United States v. Desselle, 450 F.3d 179, 182 (5th Cir.
2006); United States v. Bullard, 390 F.3d 413, 416 (6th Cir.
2004); Ahlers, 305 F.3d at 56-62. Today, we join our sister
circuit courts of appeals in so holding.

B.

We cannot leave this discussion without commenting
on the meaning of the second sentence of § 3553(e), which
reads as follows: “Such sentence shall be imposed in
accordance with the guidelines and policy statements issued
by the Sentencing Commission pursuant to section 994 of title
28, United States Code.” 18 U.S.C. § 3553(e). It has been
argued before other courts that the second statutory sentence
indicates that Congress did not intend to limit district courts
to consideration of a defendant‟s assistance to the government
in determining how far below a statutory minimum term of
imprisonment to sentence a defendant for whom a § 3553(e)

17
motion was filed.7 See Johnson, 580 F.3d at 673; Ahlers, 305
F.3d at 60-61; United States v. Calle, 796 F. Supp. 853 (D.
Md. 1992). According to this argument, once a district court
approves a § 3553(e) motion, it should employ the same
sentencing methodology it would use if the defendant had
never been subject to a mandatory minimum sentence—
considering the sentencing guidelines and the full panoply of
factors that can influence a sentence thereunder.

We cannot accept this reasoning given the Supreme
Court‟s comment on the effect of this sentence in Melendez v.
United States, 518 U.S. 120, 128-30 (1996). There, the
Supreme Court agreed with the government that the second
sentence of § 3553(e), along with 28 U.S.C. § 994(n),8
“merely charge the [Sentencing] Commission with
constraining the district court‟s discretion in choosing a
specific sentence after the Government moves for a departure
below the statutory minimum.” Id. at 129. Thus, the second
sentence of § 3553(e) is designed to limit the district court‟s
discretion when sentencing a defendant below a mandatory

7
The parties did not address this specific issue in their briefs,
but we believe a thorough analysis of § 3553(e) dictates
consideration of the entire statutory provision.
8
“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. § 994(n).

18
minimum, not to expand its authority. See United States v.
Melendez, 55 F.3d 130, 134 (3d Cir. 1995) (“As the final
sentence of § 3553(e) reflects, Congress contemplated that the
limited downward departure authority there bestowed on a
sentencing court would be exercised in the context of, and in
a manner consistent with, a system of Guidelines sentencing
that was being constructed at the time of the passage of §
3553(e).”); United States v. Wills, 35 F.3d 1192, 1198 (7th
Cir. 1994) (Easterbrook, J., dissenting) (interpreting the
second sentence of § 3553(e) to mean that “the prosecutor‟s
authorization to impose a sentence below the statutory
minimum does not permit the judge to throw out the
guidelines and impose any term that strikes his fancy”). The
provisions of § 5K1.1, for example, would therefore be
relevant in arriving at the reduced sentence.

We recognize that our decision restricts the authority
district court judges have to show clemency to defendants that
they believe have been unjustly swept up in the dragnet of a
statute calling for a mandatory minimum sentence. We also
have little doubt that the District Court here was motivated by
a sincere belief that the statutory minimum sentence was a
disproportionately harsh punishment for Winebarger.
However, this concern is appropriately directed to Congress,
rather than the courts.

C.

We hold that the limited statutory authority granted by
18 U.S.C. § 3553(e) does not authorize a district court to
reduce a sentence below a statutory minimum based on
considerations unrelated to that defendant‟s substantial
assistance to law enforcement authorities. The appropriate
procedure in a case such as this is for the court to start with

19
the mandatory minimum sentence as a baseline and then, after
granting the § 3553(e) motion, to determine the extent to
which the defendant‟s cooperation warranted a divergence
from that baseline. Section 5K1.1 sets out an instructive,
though not exhaustive, list of factors a sentencing court
should examine when assessing that assistance and
determining how far below a statutory minimum it will
sentence a defendant pursuant to § 3553(e). See Torres, 251
F.3d at 147 (holding that a court must examine section
5K1.1‟s enumerated factors when considering a departure
under section 5K1.1). The extent of the departure can be
tempered downward (but not upward) pursuant to Casiano.
Here, because the District Court reduced Winebarger‟s
sentence below the statutory minimum to reflect factors that
did not relate to Winebarger‟s assistance to law enforcement
authorities, we will vacate the judgment of sentence and
remand for resentencing. 9

9
Because we decide that the District Court abused its
discretion by considering factors unrelated to Winebarger‟s
assistance to authorities in reducing his sentence below the
statutory minimum, we need not reach the government‟s other
arguments related to the supposed procedural and substantive
unreasonableness of Winebarger‟s sentence.

20