specially concurring in part and dissenting in part:
I concur in that part of the court’s disposition which holds that a motion by the government is a prerequisite to a district court’s reduction of a defendant’s sentence because of his substantial assistance to the *902government toward the conviction of another person. This is mandated by United States v. Alamin, 895 F.2d 1335, 1337 (11th Cir.1990). I write separately, however, because I believe that Alamin was wrongly decided. This panel is constrained by previous panel decisions of our court. Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) (en banc). If it were not and I were writing on a clean slate, I would hold that a motion by the government is not a prerequisite to a departure under U.S.S.G. § 5K1.1. I dissent from the outright reversal of the district court’s judgment in this case but instead would remand for a consideration of whether the government’s failure to file a motion for a reduction was in bad faith.
A brief review of the relevant facts is warranted. Appellant assisted the government by testifying in another trial. At appellant’s sentencing hearing, the government made no motion in support of a departure, and in fact objected when the court concluded that a departure was appropriate. The district judge presided over both the instant case and the one in which this defendant rendered assistance by testifying against the defendant there. At appellant’s sentencing hearing, the following relevant colloquies occurred:
The Court: Do you contend that the defendant’s testimony in the trial of
Mr. Fickling was of no assistance to the government?
Ms. Levin (for the government): No, I cannot say that that’s true. That’s why we called him. I do think that his testimony contributed to our successful prosecution. There is no doubt. The Court: Substantially?
Ms. Levin: No, I’m not certain that that’s true because we did consider not calling him. SRI-14.
# jJs sis sjs A
(There then followed an argument by government counsel as to her understanding of “substantial cooperation.” The government contended that a defendant had to accept responsibility for his participation in the crime to be of substantial assistance to the government.) SRI-14-18.
DISCUSSION
A. Analysis of Relevant Statutes and Guideline Sections.
Since the panel in Alamin as well as the majority here rely upon 18 U.S.C. § 3553(e) as one of the sources for the proposition that a motion for a departure must be made by the government as a prerequisite for a district court’s authority to depart, close scrutiny of the statute is necessary:
(e) 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 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.
28 U.S.C. § 3553(e) (emphasis supplied). For example, a sentence prescribed in 21 U.S.C. § 960(b) states in part: “the person committing such violation shall be sentenced to a term of imprisonment of not less that 10 years and not more than.... ” Section 3553(e) was directed to the authority of a district court to reduce a sentence “below a level established by statute as minimum sentence” based upon a defendant’s substantial assistance to the government. This is not the law that governs this and the Alamin case. The problem here relates to the proper interpretation of U.S. S.G. § 5K1.1, a guidelines policy statement which states in part: “Upon motion of the government stating that the defendant has made a good faith effort to provide substantial assistance in the investigation or prosecution of another person who has committed an offense, the court may depart from the guidelines.” 1
*903The Sentencing Commission derives its general authority to adopt the Sentencing Guidelines from 28 U.S.C. § 994, Duties of Commission, which contains specific guidance to the Commission for fashioning the substantive provisions and policy statements in the guidelines. The Commission’s specific authority to adopt § 5K1.1 is contained in § 994(n), which states:
The Commission shall assure that the guidelines reflect the general appropriateness of imposing a lower sentence than would otherwise be imposed, including a sentence that is lower than that established by statute as a minimum sentence, to take into account a defendant’s substantial assistance in the investigation or prosecution of another person who has committed an offense.
The first conspicuous observation is the difference between Congress’ action in writing § 3553(e) in which a government motion is required and omitting such a requirement when writing § 994(n). Congress adopted both sections in the same piece of legislation. Additionally, the two sections are immediately adjacent to one another. See Narcotics Penalties and Enforcement Act of 1986, Pub.L. No. 99-570 §§ 1007(a), 1008(1), 100 Stat. 3207-7 (October 27, 1986) (§ 1007(a) amended 18 U.S.C. § 3553 by adding subsection (e); § 1008(1) amended 28 U.S.C. § 994 by adding subsection (n)). Section 3553(e), expressly limits departures from statutory minimum sentences; however, there appears to be no logical reason why the prerequisite nature of a government motion under § 3553(e) should be mechanically transposed onto departures from the guidelines authorized pursuant to 28 U.S.C.A. § 994(n). It is far more logical to interpret § 3553(e) as an exception to the general rule set out in § 994(n).
Standing alone, the opening clause of § 5K1.1 is reasonably clear and a cursory reading of its “plain language” supports the majority’s interpretation. While the first step in statutory interpretation is to examine the statute itself, portions of a statute cannot be read in a vacuum. See A. Murphy, Old Maxims Never Die: The “Plain-Meaning Rule” and Statutory Interpretation in the “Modern” Federal Courts, 75 Colum.L.Rev. 1299, 1299-1301 (1975) (noting that “ ‘[tjhere is no surer way to misread any document than to read it literally’ ”) (quoting Judge Learned Hand in Guiseppi v. Walling, 144 F.2d 608, 624 (2nd Cir.1944)). It is essential to read the policy statement in context. In this case, it bears noting what § 5K1.1 does not say. As noted previously, the caption title for 18 U.S.C.A. § 3553(e) reads: “Limited authority to impose sentence below statutory minimum.” The effect of this statement is to make the provision read as if it were phrased: “Only upon motion of the Government....” When the statute is compared to the § 5K1.1, the limiting language present in the statute is conspicuously absent from the guideline policy statement. The Commentary to § 5K1.1 is equally illuminating: “Substantial weight should be given to the government’s evaluation of the extent of the defendant’s assistance, particularly where the extent and value of the assistance are difficult to ascertain.” § 5K1.1, Application Note 3. The Commission further commented:
The nature, extent, and significance of assistance can involve a broad spectrum of conduct that must be evaluated by the court on an individual basis. Latitude is, therefore, afforded the sentencing judge to reduce a sentence based upon variable relevant factors, including those listed above. The sentencing judge must, however, state the reasons for reducing the sentence under this section.
§ 5K1.1, Background, (emphasis added). Nowhere do these comments refer, or allude to the government’s motion as an absolute prerequisite. That a court need only afford the government’s evaluation “substantial weight” leads me to conclude that the recommendation, or lack of it, is not a prerequisite.
*904Furthermore, to read § 5K1.1 as does the panel, requires a court to ignore the general mandate regarding departures:
Section 5H1.10 (Race, Sex, National Origin, Creed, Religion, Socio-Economic Status), the third sentence of § 5H1.4, and the last sentence of § 5K2.12, list a few factors that the court cannot take into account as grounds for departure. With those specific exceptions, however, the Commission does not intend to limit the kinds of factors (whether or not mentioned anywhere else in the guidelines) that could constitute grounds for departure in an unusual case.
Introduction, Departures, U.S.S.G. ¶ 4(b) at 1.6 (emphasis added). In United States v. Crawford, 883 F.2d 963, 966 (11th Cir.1989), a panel of this circuit concluded that a district court could depart from the guidelines due to the defendant’s aggravating role in the offense even though the defendant’s action “did not rise to the level of an aggravating role, as defined by guideline 3B1.1.” Id. The court rejected defendant’s argument that because her conduct did not meet the criteria of § 3B1.1, “the guidelines precluded the district court from considering her role in deciding whether to depart from the guideline sentencing range.” Id. This case is significant because it shows that merely because the guidelines contain a provision which appears to be applicable under the facts of the case, the guideline does not delimit the exclusive method by which the court may consider the information in fashioning a sentence. Crawford reflects the degree of flexibility that should be afforded sentencing courts. The Sentencing Commission has recommended that Congress amend the Sentencing Reform Act to “ ‘state clearly’ that the guidelines are general standards regarding the appropriate sentence in a typical case, not compulsory rules.” Reports and Proposals — Sentencing Reform, 46 Crim.L.Rep. 1389 (1990). While this recommendation is not controlling, it confirms my understanding of the latitude afforded district courts’ decisions to depart from the guidelines.
While I have no dispute with the panel’s conclusion that Congress may circumscribe the availability of the substantial assistance departure,2 I do dispute whether it has done so. Nothing in the statutes supports such a conclusion. Congress adopted both § 3553(e) and § 994(n) as part of the same legislation, yet these provisions contain markedly different language. It is obvious that Congress intended two different standards to apply. As the agency charged with interpreting § 994(n), the Commission’s understanding is entitled to a certain presumption of correctness. However, I have serious reservations as to whether the majority’s construction of § 5K1.1 — assuming it is consistent with the Commission’s interpretation — comports with what Congress intended when it enacted § 994(n). I also doubt whether the majority’s construction of § 5K1.1 is consistent with the Commission’s intent. The Commission has stated that it “intends the sentencing courts to treat each guideline as carving out a ‘heartland,’ a set of typical cases embodying the conduct that each guideline describes.” U.S.S.G. ¶ 4(b) at 1.6. It is equally plausible and consistent with § 994(n) to view § 5Kl.l’s “upon motion of the government” language as operative in what the Commission considers is the typical case. In the typical case, the government will probably be in the best position to evaluate whether the defendant has rendered substantial assistance and, in such a case, a court should afford the government’s evaluation some deference. However, if the circumstances remove the case from the “heartland” embodied in the guidelines, the court should proceed as it would anytime the circumstances are not adequately considered by the guidelines. Nothing in the guidelines or policy statements supports specially limiting a sentencing court’s authority to depart when the issue is whether the defendant has rendered substantial assistance. Section 5K1.1 is just another provision in the guide*905lines and, therefore, is equally controlled by the departure provisions in § 5K2.0.3
In United States v. Lewis, 896 F.2d 246, 247-48 (7th Cir.1990), the court concluded that § 5K1.1 “reflects a reasonable interpretation of § 994(n)’s mandate” since Congress had placed such a restriction on § 3553(e) and Fed.R.Crim.P. 35. Congress’ actions, however, support the opposite conclusion. That Congress included the restrictions in § 3553(e) and Rule 35 indicates that Congress knew how to draft a statute with such a restriction when it wanted to do so. By interpreting the guidelines in this manner, the panel has selected an interpretation which conflicts with the governing statute, the Commentary to § 5K1.1 and with the general provisions governing departures.
B. Policy Considerations.
In United States v. White, 869 F.2d 822, 828-29 (5th Cir.), cert. denied, - U.S. -, 109 S.Ct. 3172, 104 L.Ed.2d 1033 (1989), the court reached a certain compromise by concluding that § 5K1.1 set out the common practice and noted that “[t]he guidelines are not rigid, mechanical requirements.” Id. at 829. The policy statement is predicated on the reasonable assumption that “the government is in the best position to supply the court with an accurate report of the extent and effectiveness of the defendant’s assistance.” Id. However, “[t]his policy statement obviously does not preclude a district court from entertaining a defendant’s showing that the government is refusing to recognize such substantial assistance.” This is not an intolerable construction; however, I believe it nevertheless vests the prosecutor with excessive authority and is inconsistent with the goal of reducing sentencing disparity, one of the overarching goals of sentencing reform. See Introduction, The Basic Approach, U.S.S.G. ¶ 3 at 1.2-1.4 (November 1, 1989).
It seems to me grossly inconsistent with the goal of reducing sentencing disparity to remove sentencing discretion from the judge and place it with the prosecutor whose decisions are not reviewable. During recent congressional oversight hearings, one witness noted the distinction between prosecutorial and judicial discretion and commented:
In the judicial arena every decision is subject to review. Every decision rendered must be grounded on articulated facts and legal theories stated on the open record. An error in either regard is subject to appeal and reversal. When the decision is made by the prosecutor, there is no public proceeding, there are no enunciated facts, and legal theories become irrelevant. Whatever the decision, it is absolutely unreviewable. No matter how wrong, it cannot be corrected.
Congressional Oversight, 2 Fed.Sent.R. 227 (1990) (summary of statements before the House Subcommittee on Criminal Justice, March 7, 1990, statement of Thomas W. Hillier, Federal Public Defender) (quoting United States v. Boshell, 728 F.Supp. 632 (E.D.Wa.1990)). Hillier concluded this portion of his comments observing that “[p]ro-secutorial interference with the sentencing function is why unfair results are now commonplace and sentencing disparity is, compared to past practice, substantially more prevalent. By any objective measure, the quality of justice in the federal criminal system suffers under the Guidelines.” Id. At least one circuit has expressed similar concerns. In United States v. Justice, 877 F.2d 664, 667 (8th Cir.), cert. denied, - U.S. -, 110 S.Ct. 375, 107 L.Ed.2d 360 (1989), the court identified three difficulties if § 5Kl.l’s motion requirement is construed as mandatory. First, that construction places discretion with the prosecutor that has historically been with the judge. Second, if the prosecutor abuses that dis*906cretion, the abuse is largely unreviewable. And third, whether the assistance rendered by defendant is substantial may be a disputed issue of fact. Thus, § 5K1.1 makes the prosecutor the trier of fact.
I believe the instant case presents an equally vexing problem which is related to the government’s bad faith refusal to move for a departure. That is, what recourse does a court have if it is apparent that the government’s refusal to move for a departure is based on an erroneous interpretation of the law? In this case, the record reveals that the government believed that a defendant did not deserve a substantial assistance departure since he had not accepted responsibility for his criminal act. The government’s interpretation of § 5K1.1 in this regard is clearly incorrect. See § 5K1.1, Application Note 2 (“The sentencing reduction for assistance to authorities shall be considered independently of any reduction for acceptance of responsibility.”). The government also argues that the substantial assistance departure should be conditioned on it being clear to the government that the defendant’s assistance will be substantial before the government puts the witness on the stand.4 Section 5K1.1 includes no such preliminary assessment requirement. The question for the court to resolve is whether the defendant made a good faith effort to render substantial assistance. This evaluation is made after the defendant has rendered assistance. Both the bad faith and erroneous interpretation concerns strongly support some exception to a rigid interpretation of § 5Kl.l’s motion requirement. Any other approach would supplant a court’s ability to “treat similar cases alike.” U.S.S.G. ¶ 3 at 1.2. Arguably then, § 3553(e) is a clear manifestation of Congress’ intent to deviate from its uniform sentencing framework; however, this same intent is entirely absent from § 994(n).
C. The Facts Of This Case Justify A Remand.
Without facing the issue in this case, the majority notes in passing that other courts have recognized lack of good faith on the government’s part as a basis for dispensing with the requirement for a government initiated motion. I find this problematic because there exists significant evidence of bad faith in the record. The majority concludes that it need not reach this question since Chotas does not raise it on appeal. This is not surprising since he prevailed on his motion for a departure under § 5K1.1 and the government is the appellant in this case.
As noted above, a number of other circuits have concluded that the guidelines do not preclude a departure for substantial assistance if the government is acting in bad faith. See, e.g., United States v. Grant, 886 F.2d 1513, 1514 (8th Cir.1989) (discussing, but not finding a due process violation); United States v. Justice, 877 F.2d 664, 668-69 (8th Cir.1989) (recognizing that the absence of a motion by the government may not “divest a sentencing court of the authority to depart from the guidelines in recognition of a defendant's clearly established and recognized substantial assistance”); United States v. White, 869 F.2d 822, 828-29 (5th Cir.1989) (concluding that § 5K1.1 delineates the procedure to be followed in the typical case). Assuming the guidelines anticipate that the government will act reasonably and fairly when participating in a sentencing proceeding, a necessary but misplaced confidence, then when the government acts in bad faith a court may justify its departure on the general departure policy statement, § 5K2.0. This section states in part: “[T]he sentencing court may impose a sentence outside the range established by the applicable guideline, if the court finds ‘that there exists an aggravating or mitigating circumstance of a kind or to a degree not adequately taken into consideration’ ” (quoting 18 U.S.C. § 3553(b)). Bad faith on the part of the government is a circumstance not adequately considered by § 5K1.1. Additionally, § 5K1.1 also assumes that the govern*907ment is in the best position to evaluate the defendant’s contribution. This assumption is not universally valid. In the instant case, the same judge presided in both trials; arguably he is in as good a position to evaluate whether the defendant rendered substantial assistance. This second possibility is not adequately considered by § 5K1.1.
Several factors support a remand instead of an outright reversal in this case. First, the district court expressed disbelief over the government’s refusal to move for a departure based on substantial assistance in this case and noted that the government probably would not have obtained a conviction in the other trial had it not been for Chotas’ testimony.5 The evidence of bad faith in the record is sufficient to support our remanding this case for consideration of this issue. Second, the government argued that Chotas did not deserve the departure motion because he had not accepted responsibility. As explained above, this clearly is an impermissible basis to deny a departure for substantial assistance and similarly supports a remand.
In light of the binding decision in Ala-min, I believe a bad faith exception to § 5K1.1 is necessary for it to remain consistent with Congress’ intent under § 994(n) and with the goal of sentencing uniformity. The majority and other courts have had difficulty defining the scope of a bad faith exception. It is a difficult problem, but one which will be resolved over time; however, fundamentally, I believe this difficulty arises from an erroneous and unnecessarily narrow reading of § 5K1.1. If I were not constrained, I would hold that our review of a court’s departure for substantial assistance in the absence of a government motion should be limited to the same analysis which a court conducts when reviewing any departure6 with an added inquiry into whether the district court gave the government’s recommendation substantial weight, provided such deference is justified.
I think the panel decision in Alamin and this case unnecessarily and unjustifiably curtail the district court's sentencing discretion. Being bound, however, to follow circuit precedent, I must concur in the court’s disposition of that issue. I would, however, remand this case for consideration of the government’s bad faith.
. Section 5K1.1 was amended effective November 1, 1989; however, since Chotas committed *903his offense prior to that date, the amendment does not apply in his case. See supra majority opinion note 1.
. See United States v. Musser, 856 F.2d 1484, 1487 (11th Cir.1988), cert. denied, 489 U.S. 1022, 109 S.Ct. 1145, 103 L.Ed.2d 205 (1989) (appellants have no constitutional right to the availability of the substantial assistance provision).
. It is difficult to ascertain what the Commission intended. The above construction of § 5K1.1, the accompanying commentary and the rest of the guidelines is consistent with § 994(n). If the Commission instead intended the result reached by the majority, I would hold that the Commission exceeded its authority under § 994(n). In appropriate circumstances, courts have held that certain guidelines violate the statutory mandate given the Commission. See United States v. Lee, 887 F.2d 888, 890-92 (8th Cir.1989).
. Not all "substantial assistance" cases, however, will involve the defendant testifying on behalf of the government.
. At appellant's sentencing hearing, the judge made the following comments:
I don’t think there's any question that his testimony was a substantial factor in the conviction of Mr. Fickling, in my judgment.
Well, I think it is only fair to say that I have extreme difficulty in describing the government’s attitude as generous. Well, I just — I certainly disagree with that.
SRI-14, 18-19.
. See United States v. Carrillo, 888 F.2d 117, 118 (11th Cir.1989) (district court’s factual findings must be accepted unless clearly erroneous); United States v. Crawford, 883 F.2d 963, 964-66 (11th Cir.1989) (exercising de novo review of sentencing court’s determination that guidelines did not adequately consider certain aggravating circumstances and concluding that nothing in record indicates departure was unreasonable). See generally United States v. Diaz-Villafane„ 874 F.2d 43, 49-50 (1st Cir.), cert. denied, - U.S. -, 110 S.Ct. 177, 107 L.Ed.2d 133 (1989) (offering a concise three-step approach for analyzing departures).