concurring in part and dissenting in part:
The district court summed this case up aptly when it concluded that “this is a highly unusual case, hopefully never to be seen again in this district or elsewhere.” What made the case so unusual was the cavalier manner in which the government accepted the assistance of an informant who the government knew was handing over information protected by the attorney-client privilege. Judge Zilly dealt commendably with these “unusual” actions by law enforcement, and correctly resolved the issues stemming for the government’s misconduct. The majority is wrong, therefore, to hold that his decision to exclude the evidence of the Stanwood grow at sentencing was misguided and in violation of our case law. I dissent from that part of the majority’s decision.1
The majority believes that the district court’s sentencing determination is “problematic” because its reason for excluding from the sentencing calculus the evidence seized at Stanwood — government misconduct — is “entirely unrelated” to that evidence. Wholly apart from the question of the district court’s authority to exclude the evidence, therefore, the majority sees no link between the government’s allegedly wrongful conduct and the Stanwood evidence. The findings of the district court, however, make clear that it excluded the Stanwood grow from the sentencing calculation precisely because of the relationship between that evidence and the government’s misdeeds. During sentencing, the district court concluded:
This case in my opinion has presented some of the most difficult and unusual and frankly disturbing facts and circumstances of any criminal case that I have to date in 10 years been involved with.
The government’s chief informant was the private investigator of the defendant’s lawyer, Mr. Mestel. The government paid and agreed to pay this informant a total of $150,000 to cooperate and provide testimony. Substantial questions were raised as to whether and to what extent the government exploited the information covered by the attorney-client privilege.
The information provided to the government, in my opinion, relating to the Stanwood grow was severely tainted by the violation of the defendant’s attorney-client privilege, which is a very important and sacred relationship in our legal system.
Absent this government misconduct,2 the court concluded, it was unlikely that the government ever would have connected the Stanwood grow to the defendants:
I am not convinced, as the prosecutor seems to be convinced, that Mr. Pryor’s involvement and his limited knowledge would have been enough to result in the type of indictment that we have here. Although the Stanwood grow was first *805brought to the prosecutor’s attention in May of 1994, no ultimate arrest occurred in this case for more than three years until July of 1997.3
The district court could not on this basis dismiss the conspiracy indictment against the defendants with prejudice, because the indictment encompassed more than just the Stanwood grow. A dismissal with prejudice would have unnecessarily allowed the defendants to escape criminal liability for the Warden grow, even though, as to that grow, sufficient independent evidence existed to establish all elements of the offense. Nevertheless, the district court believed that, because of the government’s misconduct, Haynes and Denton should not be held criminally responsible for the marijuana seized from Stanwood. Accordingly, the district court “rule[d] that the marijuana plants that were found at Stanwood should not be considered for purposes of determining either the guideline range or the statutory minimum.” For some reason that escapes me, the majority stresses repeatedly that the Stan-wood plants were legally seized. While this is true, it is entirely beside the point. It is not the government’s discovery and seizure of the marijuana plants that the district court concluded was the product of misconduct. Rather, it was the link between the marijuana and the defendants that the court concluded would likely never have been made without the governmental misconduct. Far from being unrelated to the government’s misbehavior, therefore, the district court’s decision was designed to and did remedy the very damage done by that misbehavior.4
In spite of the district court’s compelling reason for excluding the Stanwood grow from the sentencing calculation, the majority concludes that, pursuant to our case law and the criminal statute under which the defendants were convicted, the district judge had no discretion to exclude the Stanwood plants. For this proposition, the majority relies principally on cases which hold that the exclusionary rule does not apply at sentencing. See, e.g., United States v. Vandemark, 522 F.2d 1019, 1021 (9th Cir.1975), United States v. Tauil-Hernandez, 88 F.3d 576, 581 (8th Cir.1996), and United States v. Kim, 25 F.3d 1426, 1432-33 (9th Cir.1994). The majority’s *806conclusion that these cases support its holding, however, is based on an unwarranted and erroneous logical leap. The cases cited by the majority hold only that a court may, in certain circumstances, consider evidence during sentencing even when that evidence was seized in violation of the Fourth Amendment and would therefore be inadmissible at trial. The majority reads these cases to require sentencing courts to consider information seized in violation of Fourth Amendment rights. The cases, however, say no such thing. In fact, the principal reason underlying the holding in the cases cited by the majority is that courts have broad discretion to determine what evidence should be included for purposes of sentencing. Thus, contrary to the majority’s claim that these cases deprive district courts of discretion to decide what evidence to include in sentencing calculations, they actually reinforce that discretion. Because the issue here is whether the district court had discretion to disregard the Stanwood evidence for sentencing purposes, the cases cited by the majority support affirmance, not reversal.5
In addition to the cases that the majority overreads, more general aspects of our sentencing case law strongly support the district court’s exercise of discretion in excluding the Stanwood plants from the defendants’ sentencing calculation. United States courts historically have permitted “a sentencing judge [to] exercise a wide discretion in the sources and types of evidence used to assist him in determining the kind and extent of punishment to be imposed.” Williams v. New York, 337 U.S. 241, 246, 69 S.Ct. 1079, 93 L.Ed. 1337 (1949). Although the introduction of the sentencing guidelines curtailed that discretion by eliminating district court discretion from some guidelines calculations, district judges still retain broad discretion where it has not been abrogated by the guidelines. See United States v. Etherton, 101 F.3d 80, 81 (9th Cir.1996) (noting that the Supreme Court has “recognized that even in this era of the sentencing guidelines, district courts retain broad sentencing discretion”); United States v. Chischilly, 30 F.3d 1144, 1161 (9th Cir.1994). Under the Guidelines regime, we have continued to hold that district courts have broad discretion to determine what evidence to consider at sentencing — even if that evidence is inadmissible at trial. See, e.g., United States v. Hopper, 27 F.3d 378, 382 (9th Cir.1994). Given that, as a general matter, “sentencing under the statutory mandatory mínimums [does not] differ from the Guidelines,” United States v. Becerra, 992 F.2d 960, 967 n. 2 (9th Cir.1993), this traditional discretion strongly supports the district court’s decision to exclude the Stan-wood grow.
Because our cases holding that the exclusionary rule does not apply at sentencing do not compel its holding, the majority retreats to the logic of statutory minimums.6 The statutory minimum under § 841(b)(1)(A), the majority repeatedly stresses, is mandatory, not optional: the district court “shall” sentence a defendant *807to ten years if the quantity threshold is met. The majority is certainly correct; a defendant who qualifies for the mandatory minimum may not be sentenced to a shorter term of imprisonment. This conclusion, however, begs the question — what drug quantities must be included in determining whether the statutory minimum is met? Section 841(b)(1)(A) has absolutely nothing to say about that question. Accordingly, it too does not support the majority’s holding.
In the end, my disagreement with the majority comes down to the following: The majority claims that, in the absence of any specific legislative rules or judicial holdings that district courts have discretion to exclude evidence at sentencing for legitimate reasons, it must conclude that they have no such discretion. In contrast, I believe that, in the absence of any specific legislative rules or judicial holdings that district courts do not have discretion to exclude evidence at sentencing for legitimate reasons, we should conclude that they do. Which presumption is correct must ultimately turn on which is better-supported by more general legislative rules and judicial holdings concerning sentencing determinations. To support its view, the majority relies on two sources of legal authority: (1) cases that affirm, rather than curb, the discretion of district courts to determine what evidence to include at sentencing; and (2) statutory language that makes certain minimum sentences mandatory, but that says nothing about the role of district courts in determining what evidence to include when arriving at those sentences. Obviously, neither of these sources of legal authority supports the majority’s presumption against district court discretion. The presumption I apply, however, is supported by a long tradition of both judicial holdings and legislative rules affirming the broad discretion of district courts to determine what evidence to include for purposes of sentencing.
In short, the underlying legal principles regarding sentencing determinations support the district court’s exercise of discretion in this case, and the majority has pointed to nothing that curtails that discretion. Moreover, the district court’s decision to exclude the Stanwood grow from sentencing is supported by the dictates of fairness and due process. By excluding that evidence, the district court simply prevented the government from benefit-ting from its complicity in the violation of the defendants’ constitutional rights. For these reasons, I would affirm the district court’s decision. Accordingly, I dissent.
. I concur in Parts I and II of the majority opinion.
. The majority disagrees with this characterization of the government's conduct. The characterization is the district court's, not the dissent's, however. I leave it to the reader to determine the district court’s view of the government's conduct by examining the statement of the district judge as set forth immediately above the text to which this note is appended.
. The majority suggests that it is pure speculation to conclude that the prosecution’s case on the Stanwood grow stemmed from the conduct that underlay the district court's suppression order. The majority tends to dismiss the district judge's statements as speculation whenever those statements are not consistent with the majority’s legal theories. In this instance, once again, it is best to let the district court's words — as set forth in the quote to which this note is appended — speak for themselves.
. The majority contends that the remedy afforded the defendants at sentencing was somehow unnecessary and duplicative because the district court had earlier agreed to exclude the pertinent testimony relating to the Stanwood grow. Invoking an ancient legal principle, the majority says that prohibiting the government from using the evidence at sentencing would improperly afford the defendants “a second bite at the apple.” However, the first "bite at the apple,” the exclusion of the evidence from trial, would have afforded Haynes and Denton no remedy at all, from a practical standpoint. Regardless of whether the testimony regarding Stanwood was suppressed, the defendants were clearly guilty of conspiracy to manufacture marijuana; the substantial independent evidence regarding the Warden grow made their conviction on the marijuana conspiracy count a certainty. Therefore, the district court's decision to suppress the evidence did nothing to change the fact that the defendants were well-advised to plead guilty to conspiracy to manufacture marijuana. Far from being duplica-tive or unnecessary, the exclusion of the Stan-wood evidence at sentencing was the only meaningful remedy the district court could provide for the government's abuse of the attorney-client privilege (short of dismissing with prejudice). In any event, the majority fails to explain why a district court's decision to exclude evidence both at trial and at sentencing violates its two-bites rule; for, under the majority’s decision, it is the district judge, not the defendants, who is prohibited from taking similar actions with respect to the same unlawful government conduct at two different stages of the proceedings. I am aware of no legal rule or maxim which so limits the discretion of the district courts.
. One case, Kim, contains dicta that supports the majority’s view in part. However, as noted, the holding in Kim is only that the district judge did not err in considering the particular illegally seized evidence at sentencing. In fact, Kim expressly left open the question whether “suppression would be necessary and proper at the sentencing phase where it is shown that the police acted eggregiously.” 25 F.3d at 1434 n. 8. Here, of course, the misconduct is egregious.
. The majority also suggests that the defendants’ plea agreement prohibited the district court from excluding the Stanwood grow. The plea agreement specifically states, however, that with respect to the quantity of drugs included in the sentencing calculation, "the Court is not bound by [the plea] agreement and will make an independent determination.” Notwithstanding the majority's efforts to downplay the significance of this statement, it fully supports the district court’s action at sentencing. The defendants may be bound at sentencing by the statements in the plea agreement, but the court is not. It is free to do precisely what it did: make an independent determination with respect both to the facts and the applicable law.