dissenting:
I join in Parts I, II, and V of the majority opinion, and respectfully dissent with respect to Parts III, IV, and VI. Although the issue is a close one, I believe the majority has erred in holding that when a sentencing *137court grants a USSG § 5K1.1 motion to depart below the guideline sentence, the court may not impose a sentence below the statutory minimum unless the ,§ 5K1.1 motion is accompanied by a motion under 18 U.S.C. § 3553(e). I believe the court should follow the position accepted in the majority of circuits that have considered this issue. See United States v. Wills, 35 F.3d 1192 (7th Cir.1994); United States v. Beckett, 996 F.2d 70 (5th Cir.1993); United States v. Cheng Ah-Kai, 951 F.2d 490 (2d Cir.1991); United States v. Keene, 933 F.2d 711 (9th Cir.1991). But see United States v. Rodriguez-Morales, 958 F.2d 1441 (8th Cir.), cert. denied, — U.S. -, 113 S.Ct. 375, 121 L.Ed.2d 287 (1992).
The majority correctly reasons that 18 U.S.C. § 3553(e) and 28 U.S.C. § 994(n) are silent with respect to whether the prosecutor should be given exclusive access to sentences below the Guideline ranges. I believe the majority errs, however, in determining that § 5K1.1 reflects the Sentencing Commission’s advertent decision to give the prosecutor a veto over departures below the Guideline ranges and to leave departures below the statutory minima to the authority conferred by § 3553(e).
A careful reading of the sentencing guidelines and its commentary leads to an opposite conclusion. Guideline commentary “that interprets or explains a guideline is authoritative unless it violates the Constitution or a federal statute, or is inconsistent with, or a plainly erroneous reading of, that guideline.” Stinson v. United States, — U.S. -, -, 113 S.Ct. 1913, 1915, 123 L.Ed.2d 598 (1993). With this direction in mind, I believe the court should give more careful consideration to the commentary to the guidelines.
Section 5K1.1 must be read together with application note 1 which reads:
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.
USSG § 5K1.1 comment, (n. 1). I believe this note expresses the Sentencing Commission’s intent that § 5K1.1 serve as a “conduit” for the application, of § 3553(e), see Cheng Ah-Kai, 951 F.2d at 493, and not an attempt to create two separate motions concerning substantial assistance. Application Note 7 to USSG § 2D1.1, the guideline concerning drug offenses, further supports this interpretation and reads as follows:
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).
USSG § 2D1.1 comment, (n. 7). The reference to § 5K1.1 rather than to § 3553(e) illustrates the Commission’s determination that departures from the statutory, minimum sentence are ■ a mere subset of departures from the guidelines. This cross referencing, along with the substantial cross referencing between § 5K1.1, § 3553(e), and § 994(n) supports the conclusion that the district court has discretion. See Keene, 933 F.2d at 714.
I also disagree with the majority’s view that “no policy considerations appear to counsel against this conclusion and a number counsel in favor” of its conclusion. Majority Op. at 135. Other circuits have ably raised policy considerations that counsel against the majority’s position. The Ninth Circuit, for example, reasoned that with regard to the powers conferred on the government by § 5K1.1 and § 3553(e), “[o]nce the motion is made by the government, a transfer of discretion regarding the range of departure could well frustrate Congress’ goal of eliminating sentencing disparity given the absence of appellate review over the prosecutor’s activity.” Keene, 933 F.2d at 715. In addition, an interpretation that provides two separate and distinct types of departure “would lead to a usurpation of the discretion of the district court.” Cheng Ah-Kai, 951 F.2d at 494.
Although permitting the judge to depart below the guidelines or the statutory minimum on the basis of a § 3553(e) or § 5K1.1 motion curtails the prosecutor’s ability to match the reward-to the assistance, the defendant’s sentence will still reflect his cooper*138ation. Judges are quite capable of making this determination and should be permitted to exercise their sound discretion. See id.; Keene, 933 F.2d at 714.
I would vacate the sentence imposed by ■the district court and remand this case for resentencing. Therefore, I dissent.
Before:- SLOVITER, Chief Judge, BECKER, STAPLETON, MANSMANN, GREENBERG, HUTCHINSON, SCIRICA, COWEN, NYGAARD, ROTH, LEWIS, and McKEE, Circuit Judges, and HUYETT, District Judge.