dissenting:
I cannot agree with the proposition that a district court can depart radically downward because of its perception of conditions on the Mexican border and of other plea agreements that it has, apparently, accepted in the past.
The majority approves the district court’s use of what cannot be anything but a socioeconomic status claim that the conditions which exist along the Mexican border induce people to commit crimes, but says that it is not socioeconomic at all because it is simply descriptive of certain players in the drug trade. I cannot agree with that characterization. It is very clear that the socioeconomic condition of these, and other, drug couriers was precisely the point the district court was making. There is nothing to suggest that if the defendant were a wealthy Mexican businessman, the dire conditions that others face in that country would have resulted in a departure. The district court’s reflection only has bite because these appellants were presumably a part of the class afflicted by socioeconomic deprivations. In my opinion, that is precisely the kind of information that the district court cannot use to depart. See U.S.S.G. § 5H1.10. See also, 28 U.S.C. § 994(d). Cf. U.S.S.G. § 5K2.12. I recognize that United States v. Big Crow, 898 F.2d 1326 (8th Cir.1990), is to the same effect as the majority opinion, but, as the dissent in that case pointed out, that decision is itself incorrect. Of course, in Big Crow the court at least keyed on the defendant’s good deeds in a bad environment, not on his evil deeds.
Nor does minimizing appellants’ culpability by repeatedly calling them “mules” advance the argument. They were, in fact, caught smuggling large quantities of marijuana into this country. Of course, we can label their culpability as “marginal,” as the majority does, but simply saying so does not make departure proper. Just how the activity of a person who actually brings dangerous drugs into the country can be called marginal is beyond me. That activity is an exceedingly important link in the drug trade — break it and you have solved a large part of the drug problem. Thus, even if United States v. Bierley, 922 F.2d 1061 (3d Cir.1990), were properly decided, a dubious proposition as the dissent in that *651case points out, it would not apply here.1 A better analogy would be some poor soul who has just purchased a small quantity of marijuana for personal use. In short, the majority attempts, with great verve and subtlety, to turn lead into gold, but it suffers the fate of the alchemists.
The assertion that plea bargaining had resulted in lower sentences for some people, whom the district court deemed worse, points to another fact that should not have been considered. A purported plea bargain is not binding upon the district court — the court need have none of it. One purpose of the Guidelines is, indeed, to eliminate unwarranted disparity in sentencing. 18 U.S.C. § 3553(a)(6). That hardly means that a district court should countenance an undue lowering of sentences for those who, on balance, do not deserve it2 and then use that fact as an excuse to lower the sentences of others.3 In fact, the Sentencing Commission has been quite explicit about the need to make sure that plea agreements do not undermine the Sentencing Guidelines. See the Introductory Commentary to Part B of Chapter 6 of the Guidelines, which cautions against approving agreements that will promote unwarranted sentence disparity. Yet, acceptance of this element of the district court’s decision allows it to create its own sentencing scheme by first approving of some plea bargains which allow a sentence below that which would otherwise obtain, and by then using its own approval as a reason to depart downward.
Therefore, what we have here is a concatenation of a ground which improperly keys on the socioeconomic status of the defendant with a similarly improper attempt by a judge to impose his own ideas of disparity. The result is that a couple of drug couriers, who, taken together, were bringing 136 to 186 kilograms of marijuana into this country, were given a period of imprisonment as much as five times lower than that provided for in the Guidelines. All of that is based upon facts that are only to be found in the mind of the sentencing judge as far as the record shows us. Of course, the sentencing judge had his own formula. One of these appellants was given almost twice as much time in prison as the other, although both may have been in the same Guideline range.4 That gives me little confidence in the approach that the majority endorses. Instead, I fear that the majority might actually deal a serious blow to Congress’ approach to the elimination of disparity by allowing district judges to create their own separate sentencing regimes.
Perhaps Congress should resile from its sentencing experiment. Until it does, I think that it, the Commission, and the Guidelines are entitled to more respect than the district court showed them. Thus, I respectfully dissent.
. Bierley, and now the majority, distinguishes our decision in United States v. Zweber, 913 F.2d 705, 708-09 (9th Cir.1990), on grounds that it only dealt with an adjustment, not a departure. Oddly enough, the result is that appellants can seek, and obtain, an enormous departure rather than trying to take a niggardly two to four points off their Guideline scores.
. If the individuals did deserve the reduced sentence for certain reasons, then those cases hardly offer a reason for reducing the sentence of people who do not deserve it for the same reasons.
. The district court expressed a concern that those who provide helpful information and otherwise cooperate with the government are given consideration, while those who do not, or cannot, fail to get the same consideration. Although the concern about the seeming unfairness wrought by that is understandable, it is built into our legal system and the Guidelines. When one commits crimes one puts himself in the toils of the criminal law, its aims and its policies. One of those aims is the unraveling of criminal organizations and the capturing of other criminals, and one policy is the offering of incentives which encourage criminals to help pursuit of that aim. See, e.g., U.S.S.G. § 5K1.1 and § 3E1.1. Thus, while I understand the district court’s concern, I do not think it justifies the action that court took in this case.
.Actually, the court’s calculations showed that one of them, Valdez, was in a higher Guideline range, but he was given the lower of the sentences, even though both appellants were in the same criminal history category.