dissenting.
The majority states that it is “left with no choice” but to reverse Judge Wright’s decision to sentence the defendant to a three-year prison term. See ante at 1445. I respectfully disagree. The majority not only ignores the relevant guidelines commentary, but disregards the decisions of the appellate courts which have found that a district court may depart below the guidelines range and the mandatory minimum sentence once the prosecutor has filed a substantial assistance motion under section 5K1.1. See United States v. Ah-Kai, 951 F.2d 490 (2d Cir.1991); United States v. Keene, 933 F.2d 711 (9th Cir.1991).1 We should affirm the sentence imposed on the basis of those opinions. I write separately to explain further why the majority has erred.
I.
I begin with the statutes in question. Section 3553(e) authorizes a sentence below a mandatory minimum upon motion of the government. The sentence must be imposed “in accordance with the guidelines and policy statements issued by the Sentencing Commission pursuant to section 994 of title 28.” 18 U.S.C. 3553(e) (1988). In turn, 28 U.S.C. § 994(n) instructs the Commission to ensure that the guidelines reflect the general appropriateness of a sentence below the guidelines and the mandatory mínimums in cases when a defendant has provided substantial assistance. As always, we should give effect to this clear Congressional intent.
The Commission, of course, could have followed the statute more closely and made it clearer that a sentencing judge could depart below the mandatory minimum sentence once the government made a motion for substantial assistance under section 5K1.1.2 The body of section 5K1.1 says nothing about the propriety of a sentence below a mandatory minimum in cases where the defendant has rendered substantial assistance. However, this does not end the matter. Our cases rightly or wrongly require us to look to relevant commentary to help us determine the scope and meaning of a section of the guidelines:
*1448Many of the guidelines are skeletal provisions for which the commentary provides crucial supplementation.... This circuit recognized the importance of the commentary when it adopted a reading of a guideline which was mandated by the commentary, though not by the guideline read alone.
United, States v. Kelley, 956 F.2d 748, 756 (8th Cir.1992) (en banc). Indeed, the commentary need not be even part of the guidelines section in question, for the guidelines are filled with cross-references and these cross-references are a central part of the guidelines scheme. See U.S.S.G. § 1B1.3(a).
The commentary to sections 5K1.1 and 2D 1.1 makes it clear that the district court may depart below the guidelines range and any mandatory minimum upon motion by the government pursuant to section 5K1.1. Application note 1 to section 5K1.1 fills the gap in the body of that policy statement regarding sentences below mandatory mini-ma:
Under circumstances set forth in 18 U.S.C. § 3553(e) and 28 U.S.C. § 994(n), as amended, substantial assistance in the investigation or prosecution of another person who has committed an offense may justify a sentence below a statutorily required minimum sentence.
The “circumstances set forth in 18 U.S.C. § 3553(e) and 28 U.S.C. § 994(n)” can only be a government motion for substantial assistance. Thus, the commentary informs courts that a 5K1.1 motion for substantial assistance permits a court to depart below the mandatory minimum sentence. Any other reading renders the application note mere surplusage, and as we noted in a recent en banc decision, we “cannot ignore the Commentary.” Kelley, at 756 (quoting United States v. DeCicco, 899 F.2d 1531, 1537 (7th Cir.1990)).
It seems to me that the majority is being disingenuous when it holds that application note 1 to section 5K1.1 is a mere “academic observation” that does not “explicitly state that a motion under the guideline authorizes departures below the statutory minimum.” See ante at 1444. The application note plainly states that substantial assistance may justify a sentence below a statutorily required minimum. Given its juxtaposition to the body of section 5K1.1, the language of the application note shows that the Commission was content to leave the extent of the departure to the sentencing judge. The general background commentary to section 5K1.1 further illustrates this:
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 on the variable relevant factors, including those listed above.
In this case, Judge Wright certainly did not abuse his discretion in departing below the minimum sentence once the government made a motion to reward the defendant’s substantial assistance.
Nonetheless, the majority seems to suggest that the application note to section 5K1.1 is simply background information. If this were true, the Sentencing Commission would have placed the application note in the commentary entitled “Background” rather than the section entitled “Application Notes.” If the majority is suggesting that there is no difference between application notes and background, there would be no reason for the Commission in its commentary to differentiate between “Application Notes” and “Background.”3
*1449If guidelines commentary is to be followed, as our court has held repeatedly, the majority also should give effect to application note 7 in section 2D1.1. That application note states that a mandatory minimum sentence in drug cases can be waived, and then cross-references section 5K1.1:
Where a mandatory (statutory) minimum sentence applies, this mandatory minimum sentence may be “waived” and a lower sentence imposed (including a sentence below the applicable guideline range), as provided in 28 U.S.C. § 994(n), by reason of a defendant’s “substantial assistance in the investigation or prosecution of another person who has committed an offense.” See § 5K1.1 (Substantial Assistance to Authorities).
Like application note 1 to section 5K1.1, this application note is there for a reason: it demonstrates that a 5K1.1 motion is grounds for a departure from both the guidelines and a mandatory minimum sentence. We “cannot ignore the Commentary,” Kelley, at 756 (quoting United States v. DeCicco, 899 F.2d 1531, 1537 (7th Cir.1990)), even if this application note accompanies the drug guideline rather than section 5K1.1.
In fact, the position of application note 7 in the drug guideline, rather than section 5K1.1, makes perfect sense: mandatory minimum sentences are most common in drug cases. See United States Sentencing Commission, Special Report to the Congress: Mandatory Minimum Penalties in the Federal Criminal Justice System, 10 (1991) (suggesting that over 90% of mandatory minimum sentences might be attributable to three drug statutes and one drug/ gun statute). The Second Circuit’s discussion of application note 7 is correct, and I fail to see how the majority can conclude that application note 7 to section 2D1.1 is of little importance.
In sum, our majority has failed to give effect to Congressional intent by trivializing the application notes accompanying sections 5K1.1 and 2D1.1. Now that our court has held that policy statements and commentary must be followed and given effect, it should hew that line consistently in all cases, not just in cases when- a longer sentence will result.
II.
The question in this case is not whether the majority opinion places undue discretion in the hands of the prosecutor. See ante at 1445. Under the statute, the prosecutor retains the discretion whether or not to make a motion for substantial assistance. The majority errs, however, by ignoring the plain language of section 994(n) and holding that Congress decided to give prosecutors the discretion to determine whether a district judge could impose a sentence below a mandatory minimum once the prosecutor made a motion for substantial assistance.
Our task in this case would have been easier if the Commission had discussed the applicability of section 5K1.1 to mandatory minimum sentences in the body of section 5K1.1. The guidelines, however, are designed to discuss the typical case. See U.S.S.G. § 1A4.(b) (policy statement) (Commission intends courts to treat each guideline as carving out a heartland, a set of typical cases embodying the conduct that each guideline describes); id. (5K departures may rest on grounds not mentioned in the guidelines). Most crimes do not require a mandatory minimum sentence. Thus, in the typical case involving a substantial assistance motion (particularly non-drug cases), there is no need for the court to consider a departure below the mandatory minimum because there is no mandatory minimum sentence to consider. Given the irrelevance of mandatory mínimums for most crimes, it is not surprising that the Commission did not mention the availability of a departure below a mandatory mini*1450mum in the body of section 5K1.1. Instead, the Commission discussed the issue in the application notes accompanying section 5K1.1 and in the section where mandatory minimum sentences are most important (section 2D1.1).
This is clear enough reason to find that a 5K1.1 motion enables a judge to depart below the mandatory minimum sentence. Although the majority purports to be unable to find any clear statement in the guidelines indicating that a motion under 5K1.1 authorizes a sentence below a statutory minimum, three other circuits have been able to find such a clear statement, and it was clear enough to three of our judges in United States v. Carnes, 945 F.2d 1013, 1014 (8th Cir.1991) (where government filed a 5K1.1 motion, and defendant appealed district court’s refusal to sentence below the fiveyear mandatory minimum sentence, this court held in dictum that “the district court understood its authority to impose a sentence of less than five years, but chose not to do so.”). I would affirm Judge Wright.
. The Fourth Circuit has also agreed with the Second and Ninth Circuits’ position in dicta. United States v. Wade, 936 F.2d 169, 171 (4th Cir.), cert. granted, — U.S. -, 112 S.Ct. 635, 116 L.Ed.2d 653 (1991).
. I continue to believe that the Sentencing Commission exceeded the intent of section 994(n) when it specified in section 5K1.1 that a government motion was required before a judge could depart downward from the guidelines range for substantial assistance. See United States v. Kelley, 956 F.2d 748, 762-63 (8th Cir.1992) (en banc) (Heaney, J., dissenting).
. The application notes perform a different function than the background in guidelines that contain both application notes and background commentary. As their name suggests, application notes are specific "nuts and bolts” tips; they define terms, interpret the guideline, or otherwise explain how the guideline is to be applied. In contrast, background provides (not surprisingly) background information, such as the rationale behind the guideline or the underlying statute. Background tends to be general, policy-oriented material. See, e.g., U.S.S.G. §§ 4B1.1 & 4B1.3 (application notes define terms contained in each section, while the background describes the statutory origin of each section); U.S.S.G. § 1B1.9 (application notes explain how a court may impose sentence for Class B or C misdemeanors, while background *1449commentary explains why the Commission adopted the guideline). The Commission noted the distinction between application notes and background commentary in section 1B1.7, although it did not mention application notes or background by name. See U.S.S.G. § IB 1.7 (commentary "may interpret the guideline or explain how it is to be applied” or may “provide background information, including factors considered in promulgating the guideline or reasons underlying promulgation of the guideline").