with whom BYE, Circuit Judge, joins, dissenting in part and concurring in part.
I concur in Judge Bye’s well-reasoned and thoughtfully written dissent. Judge Bye has capably discredited the majority’s statistically inaccurate and potentially harmful “extraordinary” standard for substantial assistance departures. Moreover, he has carefully described the level of assistance Burns provided to justify the district court’s departure. I write separately to express my views because I rely on a more pragmatic approach than statistical comparisons. For these additional reasons, I dissent from the majority’s decision to vacate the sentence. I concur in the majority’s decisions as to the calculation of the Sentencing Guidelines starting point.9
I.
The majority of my colleagues today grant more deference and discretion to *767prosecuting attorneys than to the district judges of this country. That is what is “extraordinary” in this case, not the departure afforded Burns by the district court. The majority opinion is itself “extraordinary” because it perpetuates a stringent and feckless standard for departures not based in the Federal Sentencing Guidelines. This court’s efforts to micro-manage the district court’s sentencing function rest on the slippery surface of a myth — the myth that circumscription of departures in this manner will reduce unwarranted sentencing disparity.
II.
“Extraordinary” is a meaningless word unless one describes what is “ordinary.” Although the court rhetorically attempts to avoid describing “ordinary” by reference to statistics or as a bright line, the majority continues to give the impression that it views with nearly unsurmountable skepticism a departure in excess of fifty percent. The court cites only one case when it has affirmed a downward departure for substantial assistance in excess of fifty percent: United States v. Pizano, 403 F.3d 991 (8th Cir.2005). By contrast, in its opinion today alone, the court cites three cases in which it has reversed a substantial assistance departure above fifty percent. See United States v. Coyle, 429 F.3d 1192, 1193-94 (8th Cir.2005) (reversing seventy-three percent substantial assistance departure); United States v. Saenz, 428 F.3d 1159, 1162, 1165 (8th Cir.2005) (vacating sixty-five percent departure); United States v. Dalton, 404 F.3d 1029, 1031, 1034 (8th Cir.2005) (reversing a seventy-five percent substantial assistance departure); cf., United States v. Haack, 403 F.3d 997, 1005-06 (8th Cir.), cert. denied, 546 U.S. 913, 126 S.Ct. 276, 163 L.Ed.2d 246 (2005) (vacating forty-three percent departure from 180 months to seventy-eight months). The court’s “proportionality, principle”'in practice creates an unjustifiéd normative baseline for departures at a two to four level, adjustment and the impression of a ceiling at fifty percent. Any district judge aware of these cases would discern that our court only rarely affirms a sentence exceeding these measures. See, e.g., United States v. Jensen, 493 F.3d 997, 1001-02 (8th Cir.2007) (affirming six level downward departure); United States v. Christenson, 424 F.3d 852 (8th Cir.2005) (en banc) (affirming seventy-five percent downward departure).
Moreover, the baseline established by the majority relies on out of context statistics and percentages for what the Guidelines dictate should be a discretionary and individualized inquiry.10 Statistics should be used for illumination, not for support.11 The background commentary to the Guidelines’ provision § 5K1.1 relating to substantial assistance departures sets forth that the “significance of assistance can involve a broad spectrum of conduct that must be evaluated by the court on an individual basis.” U.S.S.G. § 5K1.1, cmt. background (emphasis added). The majority’s comparative endeavor is therefore *768misguided. Furthermore, the background commentary of § 5K1.1 also states: “Latitude is, therefore, afforded the sentencing judge to reduce a sentence based upon variable relevant factors....” Id. By this language, the Guidelines endorse a sentencing court’s discretion to consider these factors.
The subtext of the majority’s opinion is a disdain for1 downward departures.12 The majority’s disfavor for downward departures is demonstrated by their recitation of the word “extraordinary.” By their own words, the majority considers the reduction of a sentence beyond the government’s recommendation without any data to be an exceptional event.
This disfavor for downward departures cannot be found in the Guidelines. There is no mention in the Guidelines of a substantial assistance departure being exceptional regardless of its magnitude. In fact, the Commission provides sentencing judges various avenues for both upward and downward departures when warranted. See, e.g., U.S.S.G. § 5K2.0(a)(3)-(4) (permitting departures for circumstances not already adequately taken into consideration and characteristics not ordinarily relevant). It is this court, not the Sentencing Guidelines, that have rarified such departures.
The majority holds that the exceptional nature of a departure over fifty percent is based on the Guidelines’ two, three, or four offense level adjustments for mitigating or aggravating circumstances. That the Sentencing Commission specifically delineated in § 3B1.1 (aggravating role) and § 3B1.2 (mitigating role) offense level increases or decreases should discourage this court from circumscribing the degree of substantial assistance departures when the text of the Guidelines does not provide similar limitations. As also noted by Judge Bye, there is no warrant for imposing the levels proscribed by § 3B1.1-2 on Part K. The specific mention of the number of offense levels in.one section demonstrates that the Commission knew how to proscribe adjustments, but declined to do so in favor of the discretion and “latitude” owed the sentencing judge for substantial assistance departures.
In this appeal, the majority rejects the district court’s statement of reasons offered for its sentencing decision but also denigrates the percentage methodology offered by the prosecutor. It then adds to the recipes by citing United States v. Jensen, 493 F.3d 997 (8th Cir.2007), a case which advocates the use of Guideline ranges over statistics as a proper measure for sentencing departures. Need I remark, that sort of measure finds no support in the text of the Guidelines and was not argued by the parties in any of the briefs in this case. Its introduction into the majority’s analysis only adds confusion.
III.
The Sentencing Guidelines operate as a sophisticated algorithmic-like puzzle for lawyers and judges. Within such a system, the only thing preventing sentencing judges from becoming automatons is their reason and judgment. The majority has effectively decimated the authority of a *769district judge to exercise that good judgment through its mathematical oversight.
The Guidelines do not demand of us such lifeless application of its advice. The Guidelines, as written, describe a human and interactive process between prosecutor, defense attorney, and sentencing judge for determining the mitigating effects substantial assistance should have upon a defendant’s sentence. First, the Guidelines set forth that the government may initiate a substantial assistance motion. This is the first part of the conversation: the government speaks. The Guidelines then list a set of non-exclusive and non-exhaustive factors that the court might consider when making its evaluation. See U.S.S.G. § 5K1.1. In one of the factors, the Guidelines recommend the court consider the government’s evaluation of the assistance rendered. U.S.S.G. § 5Kl.l(a)(l). Similarly, in one application note, the Guidelines explain that the court should give “substantial weight” to the government’s evaluation of the extent of the assistance given. Id. at cmt. n. 3. After the government speaks, the Guidelines give “latitude” to the district judge to exercise a reasoned judgment about the mitigating effects the assistance should have on a defendant’s sentence. The Guidelines envision a dynamic process, by which the district court weighs information and carefully considers its impact on a person about to serve a devastating sentence.
But what happens, as here, when the government’s recommendation appears arbitrary because it cannot or will not provide a basis or explanation for how it arrives at the recommendation it makes to the district court? Is the integrity of the Guidelines process tainted when the government stifles the conversation envisioned in § 5K1.1? 13 What are the implications of the prosecutor and this appellate court circumventing the- cooperative and discretionary process described in the Guidelines? What will become of advisory guidelines when an appellate court treats a list 6f non-exhaustive and nonexclusive factors as a checklist and a defendant like a point on a line graph? What are the dehumanizing effects of this court mechanizing the function of a district court — a court which meets the defendant and the prosecutor and can, as charged, neutrally evaluate the mitigating effects assistance should have on a,sentence? The process of sentencing cannot and should not be undertaken by a computer! 14
IV.
Contrary to its stated attempts to prevent unwarranted disparity, the majority’s decision actually promotes disparity. The majority explains that Burns’s participation, although completely truthful and exceptionally timely, could not be viewed as extraordinary because some other defendants, none of whom participated in the instant drug conspiracy, also frequently or sometimes provided one hundred percent truthful information in a similarly timely manner.
This rationale nonsensically creates a moving target for departures not based in the Guidelines’ text or envisioned by the Guidelines’ dictate for an “individual” in*770quiry. See U.S.S.G. § 5K1.1, cmt. background. Moreover, it improperly dilutes the weight of the timeliness, completeness, truthfulness, and reliability factors. For example, imagine three defendants, convicted of the same offense, in the same sentencing range, but for separately committed crimes. Suppose that defendant number one assists the government in a timely manner and is one hundred percent truthful. He receives a thirty percent departure. The next day, defendant number two assists the government in the same timely manner and is also one hundred percent truthful. He will receive only a twenty percent departure because his timeliness and truthfulness are less exceptional by virtue of the prior participation of defendant number one. On the third day, defendant number three also participates in the same timely manner and is one hundred percent truthful. Again, under the majority’s theory, defendant number three is likely only to receive a ten percent departure because his identical timeliness and truthfulness have become comparably less remarkable. The Sentencing Guidelines do not require such an absurd result. How can one be more than one hundred percent truthful? What kind of truthfulness would the majority contend is exceptional?
The majority also rejects Burns’s departure because the district court factored Burns’s capability of assistance when evaluating the nature and extent of his assistance under § 5Kl.l(a)(3). This standard, as applied by the majority, operates to make substantial assistance departures too heavily favored for the biggest criminals. Those at the bottom of the crime totem pole, so to speak, are often ineligible for an “exceptional” departure because they have less information to sell. See United States v. Jones, 145 F.3d 959, 966-67 (8th Cir. 1998) (Bright, J., dissenting); see also Maria Limbert, Problems Associated with Prosecutorial Control Over Filing Substantial Assistance Motions and a Proposal for a Substantial Assistance Pre-Sen-tence Hearing, 27 J. Legis. 251, 258 (2001) (“Since drug organizations are now so large and diverse, one can be involved.as an unloader, a seller, a mule, or a courier, and thus they are insulated and do not know who the principals are, so very often the smaller dealers have nothing that they can really offer the government.”)
Moreover, “[e]ven among defendants with equal access to useful information, the availability of a substantial assistance departure may hinge primarily on the timing of their arrests and plea bargains. Those apprehended early in an investigation can provide assistance by informing on their associates, while the associates arrested later are likely to add nothing new to the authorities’ knowledge.” Gerald W. Hea-ney, The Reality of Guidelines Sentencing: No End To Disparity, 28 Am.Crim. L.Rev. 161,199 (1991). As I have said before, our system of justice should not condone such topsy-turvy results.
V.
The majority repeatedly bases its “extraordinary” decision on reducing “unjustified sentencing disparities.”15 First, as Judge Bye points out in his opinion, and as I have illustrated above, the court’s opinion today may actually serve to increase *771unwarranted disparity,'not lessen it. But more significantly, the court’s justification sounds a hollow note: the notion that stiff adherence to the Sentencing Guidelines range reduces unwarranted sentencing disparities is a myth!
Long before a sentencing judge considers a government motion for a substantial assistance departure, a defendant’s Guidelines sentence is rife with factors which will increase disparity. The Guidelines range assigned a criminal defendant invariably depends upon law enforcement officers, the prosecutor’s charging decision, the defendant’s decision to plead guilty, the probation officer’s report, the quality of defense counsel,16 and numerous other factors. See Albert W. Alschuler, Disparity: The Normative and Empirical Failure of the Federal Guidelines, 58 Stan. L.Rev. 85,111-13 (2005). By way of example, one study randomly selected forty-six probation officers and asked them to apply the relevant conduct guideline to four offenders who had participated in the same drug conspiracy. The officers’ conclusions resulted in substantial variation. “For the least culpable of the offenders, the probation officers’ calculations ranged from one to five years in prison.” See id. at 111-12 (citing Pamela B. Lawrence & Paul J. Hofer, An Empirical Study of the Application of the Relevant Conduct Guideline 1B1.S, 4 Fed. Sent’g Rep. 330 (1992)).
Similarly, prosecutorial discretion significantly impacts the sentence a criminal offender will serve.17 See Heaney, supra, at 165 (“Although both the legislative and executive branches have routinely attributed sentencing disparity to the discretionary actions of individual judges, the lion’s share of discretion in the sentencing process has been and continues to be exercised by the executive and legislative branches.”) Approximately 74.9% of federal judges and 58.6% of probation officers think that the prosecutor has “the greatest influence on the final guideline sentence.” See Limbert, supra, at 258 (quoting Linda Drazga Maxfield & John H. Kramer, Substantial Assistance: An Empirical Yardstick Gauging Equity in Current Federal Policy and Practice, 5 n. 11 (1998), at http://www.ussc.gov/publicat/5kreport.pdf (visited July 31, 2007)). The impact of prosecutorial discretion on a sentence is particularly acute in the context of substantial assistance departures, which can only be granted upon motion by the government and where government policies regarding cooperation vary widely by district. See Limbert, supra, at 259. This is *772particularly troublesome when prosecutorial discretion in the context of substantial assistance departures is virtually unre-viewable. See id. at 260-61.
The enactment of the Sentencing Guidelines has not produced less disparity. In fact, it has only increased it. One author has divined the following illuminating statistics about the impact of the Sentencing Guidelines on sentencing disparity:
In the pre-Guidelines period, an offender could expect the jurisdiction in which his case arose to make a difference of about 5.24 months in his sentence. With the Guidelines in effect, the expected difference in sentence attributable to the jurisdiction in which a case arose increased to 12.94 months.
... [T]he court in which a case was heard accounted for 1.81 % of the total variation in sentences in the pre-Guide-lines period. It accounted for 5.64% of this variation in the post-Guidelines period. In temporal terms, the expected variation per case was 7.70 months before the Guidelines and 17.97 months after.
... Geographic disparity more than tripled after implementation of the Guidelines.
... [although blacks constitute 48% of the offenders who appear to qualify for a mandatory firearms enhancement in drug cases, they constitute 64% of the offenders who receive it .... prosecutors seek “substantial assistance” departures for blacks and Latinos less often than for whites....
... The time served by men in federal prisons before the Guidelines exceeded that served by women by about nine months or 50%. In the years since the Guidelines were implemented, the gender gap has grown. The time served by men increased 96% after the Guidelines while that served by women increased 75%. Men now serve 51 months on average and women 28. The previous nine-month gender gap has grown to 23 months.
Alschuler, supra, at 101, 104-5 (footnotes omitted).
Numerous law professors, judges, and other commentators have observed that the Sentencing Guidelines simply do not create less disparity, but more. Thus, the majority’s opinion rests on the slippery surface of a myth. The myth that by reducing the number and size of downward departures, disparity will improve. The means to eliminate or reduce disparity has thus far eluded the Sentencing Commission, sentencing judges, prosecutors, and apparently continues to escape the reason of this court of appeals today.18
VI.
Thus far, my criticism has focused on the majority’s opinion; it is not alone responsible for the outcome in this case. A prosecutor is an officer of the court, responsible for administering justice, but also for assisting the trial judge. The process envisioned by the Guidelines § 5K1.1, as described above in Section III., calls on the prosecutor to satisfy this obligation. When, as here, the government refuses or is unable to provide the *773court reasons for its recommendation, it hampers the district court’s ability to evaluate the assistance rendered and disregards its duties to assist the court.
In the instant case,’ after describing the assistance Burns provided, the prosecutor recommended on behalf of the government a fifteen percent downward departure for substantial assistance. The following colloquy between the judge and prosecutor ensued:
THE COURT: How did the defendant’s timeliness affect the 15 percent recommendation?
[ANSWER]: It was one of — those were factors that all went through in the mix. I guess the term would be in totality.
THE COURT: Are you in a position to tell me why, if the defendant was as timely as you indicate he was, you’re only recommending 15 percent?
[ANSWER]: The overall substantial' — or the overall cooperation he provided, the U.S. attorney decided that in totality these — under the 5K factors this was the percentage they would come up with.
THE COURT: Let’s try and see if we could short-circuit this. Are you in a position to tell me how any of the specific 5Kl.l(a)(l) through (5) factors affected the 15 percent recommendation?
[ANSWER]: I can’t give you a percentage of what each one and how it was arrived at 15, no, but in looking at all of the facts with those factors, the U.S. attorney recommended 15 percent.
THE COURT: Well, for example, why^ — -if the defendant was exceptionally timely in his cooperation, why isn’t he getting a 25 percent or a 50 percent recommendation?
[ANSWER]: Each is a case by case, but there are — -I don’t know how to put a percentage on it.
THE COURT: ... Would you agree that except for those very rare situations where a defendant comes forward- and cooperates before he’s arrested that this defendant cooperated in about as timely a manner as one could? Is that a fair statement?
[ANSWER]: In this case with this defendant, as soon as he was arrested, he told everything; ’ he was complete and truthful, yes. Those are the facts as I understand it.
THE COURT: And my question is why doesn’t that justify a 20, 30, 40, 50, . or 60 percent recommendation from your office?
[ANSWER]: Looking at that individual factor, I can’t answer your question, but in overall, everything that the defendant did, the defendant in this case assisted with the indictment of one individual at this time and all these other facts that we presented.
THE COURT: Did the defendant provide you all the information he knew ■ about in terms of substantial assistance?
[ANSWER]: From what I know from [the AUSA], yes.
THE COURT: Why doesn’t that entitle the defendant to a greater recommendation than 15 percent?
[ANSWER]: I can’t answer your question. I don’t know how to answer that question, Judge.
This excerpt' clearly shows that the government stifled the Guidelines process by its refusal or inability to assist the court in making its determination. The government’s answers to the court’s questions during sentencing were worthless! And, in its appeal before this court, the government asserts an astounding and misleading response in defense of its refusal to participate in the Guidelines process. The government states: “Subsequent to each inquiry of the count [sic], the government *774asserted the deliberative process privilege.” Appellant’s Br. at 4. Where? I have searched the sentencing transcript in vain for any mention of any such privilege.
The government, in its brief, also criticizes the district court for inquiring as to how it arrived at its recommendation of fifteen percent. See Appellant’s Br. at 27-28. It calls the district court’s questions “an attempt to infringe on the executive branch’s deliberative process and the separation of powers doctrine.”19 In support of its incredible assertion that it need not provide further explanation to the court, it cites United States v. Moeller, 383 F.3d 710 (8th Cir.2004). Moeller concerned the government’s decision not to file a § 3553(e) motion, which permits the court to sentence a defendant below a statutory minimum. Here, however, the government recommended a § 5K1.1 departure. Although there is some indication that the government in Moeller may have been evasive when it explained its decision not to file a § 3553(e) motion, see id. at 712-13, Moeller does not stand for the proposition that “We looked at the factors” or “I don’t know” are sufficient responses to the court once the government files a § 3553(e) motion, or in this case recommends a § 5K1.1 departure.
The government further argues that “the government’s refusal to divulge further information was not a reason for the district court to disregard the government’s recommendation.” This criticism of the district court can only be described as hubris. The district court is not a rubber stamp for what may be an arbitrary whim of the United States Attorney. Failure to provide any assistance to the court in making its evaluation leaves the district court with little choice but to undergo its own evaluation of the assistance provided and reach its own conclusion. It is tremendously disingenuous of the government to chastise the district court’s analysis when the government refuses to engage in its own. Perhaps if the government were less evasive to the trial court, the government would be more satisfied with that court’s decisions.
In its appellate brief, the government at long last attempts to give a reason for its recommendation: “the modest nature of defendant’s assistance.” Appellant’s Br. at 17. The government never used this descriptive term, “modest,” during the sentencing hearing. To the contrary, during sentencing, the prosecutor described Burns’s assistance as “consistent,” “key,” “truthful,” “complete,” and “timely.” Never “modest.” The government’s late assertion that defendant’s assistance was modest lacks support in the record.
I can divine several possible (non-exclusive) explanations for the prosecution’s conduct in this case. One, the prosecutor truly didn’t know how his superiors arrived at the recommendation. His superiors directed him to recommend fifteen percent and he declined to inquire further. Second, the prosecutor truly didn’t know the basis for the recommendation because it was arbitrary.20 Another possibility is that the prosecutor truly believed that the government is not required to advise the court.21 The United States Attorney and *775the assistants view the government’s “recommendation” to the court as a command, in part because of knowledge that this court will most likely reverse any departures that exceed the advice of the prosecutor. .
The final explanation, and probably the likely one, is in my view the most egregious. The government knew its reasons for the recommendation, but withheld those reasons from the sentencing judge as a matter of strategy in order to sandbag the district judge’s reasoned opinion and allow the prosecutor to call a “late foul” on appeal. The government believes that it can circumvent the sentencing court by refusing to assist the judge and then come to this court with criticism of the district judge’s analysis.
I cannot and will not join the majority in support of such prosecutorial conduct. It is an affront to the judicial system and a conscientious district judge, not to mention treating the defendant fairly.
VII.
While Section VI. of this opinion critically analyzes the prosecution for its particular conduct in this case, I write this separate section to describe why, as a matter of law, the procedure utilized here must not continue.
The successful function of our judicial system relies largely on procedure. Both modern and ancient conceptions of justice are founded on the concept of due process, which is essentially procedure.
Sentencing is no exception. Our current federal sentencing system requires collaboration between the probation office, the prosecutor’s office, law enforcement, defense counsel, and the court. These individuals operate together to effectuate a process: a process by which a reasonable and effective sentence may be determined. Although a judge makes the ultimate conclusion, a sentence should only be upheld where the judge follows the correct process. For example, if the trial judge fails to consider certain factors or considers factors that have been deemed impermissible, the process is tainted and the sentence will likely be reversed. In this way, our judicial system honors process and method — sometimes even more than the result.
The government in at least the Northern District of Iowa appears to be engaging in the routine practice of refusing to give reasons or a basis for its recommended departure.22 The by-product of the majority’s affirmance today may serve to perpetuate the government’s practice and interfere with the proper process by . which we sentence criminal defendants.
The Guidelines state that the court will give “substantial weight” 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.” U.S.S.G. § 5K1.1, cmt. n. 3. This note reaffirms that § 5K1.1 asks the government to assist (not direct) the court with an evaluation (not a conclusion). Yet the government refuses to provide such assistance to the court. Moreover federal prosecutors, both as officers of the court and administrators of justice, have a duty of candor and assistance to the court. Yet the government refuses to engage in either candor or assistance.
*776In Saenz, this court recognized that although the district court must give substantial weight to the government’s recommended evaluation of the extent of assistance, it does not similarly owe such deference to the “valuation” afforded that assistance. See 428 F.3d at 1164. This court stated: “We are less persuaded that the court must give substantial weight to the government’s valuation of the assistance, particularly where the government does not adequately explain its reasoning.” Id. (emphasis in original). Similarly, in Haack, this court noted:
It is obvious that the sentencing judge was frustrated by the government’s identical recommendations of ten percent departures in each of these three dissimilar cases. We expressed similar concerns to the Assistant United States Attorney who argued the cases. We had difficulty discerning how three such dissimilar cases could all result in the identical recommendation for departure. A recommendation by the government that does not adequately explain its reasoning is entitled to less weight, in the court’s view, than a more fully explained recommendation.
403 F.3d at 1005 n. 2; see also Pizano, 403 F.3d at 996 (“serious consideration needs be given the government’s recommendation, but that it is certainly not controlling”). Thus, this court’s precedent and the text of the Guidelines belie the government’s position that it need not explain, when asked, how it arrived at its recommendation.
Moreover, the government’s refusal is problematic in large part because it is singularly unhelpful to the district court, this court, and the sentencing process. The government’s silence creates a sentencing process through which defendants, their counsel, sentencing courts, and this court must traverse without any signposts or guides. Indeed, this court has commented on this very concern as it relates to our review:
While we recognize that a single United States Attorney brings to bear the broad perspective of one who has evaluated numerous cooperating defendants within a judicial district (indeed, at least during comparable tenure, a broader perspective than a single district judge in a multi-judge district), we have no assurance that United States Attorneys in different districts apply consistent methodologies for valuing substantial assistance and arriving at sentencing recommendations.
Saenz, 428 F.3d at 1164 (emphasis added). Similarly, the district court has no assurance that United States Attorneys have applied a consistent methodology — or a methodology at all. What good is the government’s recommendation to the district court if the government cannot back it up? Moreover, without any guideposts or explanations, defense counsel has no idea how to reasonably advise the client of a potential assistance departure.
Finally, the government’s silence impedes accountability and judicial review. How can the district court ever properly evaluate the government’s recommendation when it is backed up by nothing? How can this court review the district court’s consideration of the government’s evaluation when from the record we cannot even discern on what basis the government made its recommendation? Because this court often reverses downward departures on appeal, there is little or no accountability for the government in this respect. The government can continue to provide unexplained recommendations, which the district court will then have difficulty assessing, the government will appeal, and this court will reverse. This cat and mouse game is a waste of our judicial resources; this upside-down process is certainly a *777strange one. It can perhaps be captured by the words of the musical Anything Goes:
The world has gone mad today
And good’s bad today,
And black’s white today,
And day’s night today,
Anything goes.
Cole Porter, Anything Goes, in Anything Goes (1934).
Persons of intelligence, integrity, and good faith can disagree on the reasonableness of a sentence, the value or extent of assistance, or the degree of a departure. My colleagues and my disagreement as to the reasonableness of a sentence, and this court’s disagreement with the district court’s departure, should not effectively incentivize prosecutors to disengage from the sentencing process in the district court. Secrecy has no place in the courtroom. I believe it would be proper for the government on remand to make a new recommendation to the district court, providing the judge with a candid explanation of the methodology employed in reaching the recommendation. The district court should then consider that evaluation when re-sentencing Burns.
VIII.
Who should have the power to sentence in cases of this kind? The prosecutor, who has an unreasoned opinion for the appropriate sentence? This court, who has never met the defendant and has been given only a limited record by the government but often supports the position of the prosecutor?
We should recognize the discretion of district judges who give thoughtful consideration to a defendant’s sentence, subject to review for abuse of discretion.
In the case before us, I would affirm the reasoned decision of the district court to grant Burns a substantial assistance departure and reduce his sentence to 144 months (twelve years). That is still a very long sentence. •
I dissent.
. Although I concur in the majority's affir-mance of a 360-month starting point for Burns’s life sentence, I note that I believe this measure appropriate only in cases where 360 months does not exceed the actual life expectancy of the defendant.
. The majority claims to eschew reliance on aggregate statistics. However, the majority notes that “prior decisions dealing with comparable departures should be given controlling weight” and analyzes the nature of Burns's departure by comparing it to prior percentages rejected by this court as extraordinary. The effect of this type of analysis is akin to placing Burns’s departure on a line graph alongside other percentages and engaging in a statistical comparison rather than an individualized consideration of the defendant's assistance. Moreover, if such a comparison is valid, should it not be raised in the prosecutor's presentation to the district court rather than for the first time on appeal?
. “He uses statistics as a drunken man uses lamp-posts — for support rather than illumination.” Attributed to Andrew Lang, quoted in ' Alan L. Mackay, Scientific Quotations: The Harvest of a Quiet Eye (1977).
. Notably, as mentioned by Judge Bye, the line of cases cited in the majority’s opinion begins to resemble that previously described by Judge Heaney, where he notes this court’s trend in reversing downward departures. See, e.g., United States v. Meyer, 452 F.3d 998, 1000 n. 3 (8th Cir.2006) ("Affirming upward variances at a rate of 92.3% while affirming downward variances at a rate of 15.8% could hardly be viewed as uniform treatment, and seems contrary to 18 U.S.C. § 3553(a)(6)'s concern with eliminating unwarranted disparity.")
. I write further in Section VI. of this dissent about the government's refusal or inability to assist the district court by providing a basis or reasons for its recommended departure.
. See Nancy Gertner, From Omnipotence to Impotence: American Judges and Sentencing, 4 Ohio St. J.Crim. L. 523 (2007) (comparing role of a federal sentencing judge to a common law civil code clerk or an "operator of a machine designed and built by legislators”) (quoting John Henry Merryman, The Civil Law Tradition: Introduction to the Legal System of Western Europe and Latin America, 36 (2d ed.1985)).
. The majority also maintains that it is attempting to further the goal of preventing departures from becoming “untethered" from the Guidelines, citing Saenz, 428 F.3d 1159. The “untethering” and "reduction in disparity” goals are one in the same, as the reason stated in Saenz for preventing untethering is a reduction in disparity. See id. at 1162. In any event, departures also become "untethered” from the Guidelines when appellate judges invent an unwarranted "extraordinary” component to the explicit authority for individualized departures found in the Guidelines.
. “No state and, indeed, no other jurisdiction in the world makes an offender’s sentence as dependent on the quality of his counsel as do the federal courts under the Guidelines. Finding what is relevant to a case in the 629-page Guidelines Manual, the 1100 pages of appendices explaining Guidelines provisions, and the endless judicial decisions interpreting the Guidelines takes a very good lawyer, and not every federal defendant has one. The disparate performances of the attorneys generate sentencing disparities that fly beneath the radar.” Albert W. Alschuler, Disparity: The Normative and Empirical Failure of the Federal Guidelines, 58 Stan. L.Rev. 85, 111 (2005).
. "The prosecutor’s role in the sentencing process has been enhanced by guidelines sentencing. Not only does he continue to determine who should be charged and what the charge should be, but the information that he controls largely determines the time to be served by an offender. No longer is a sentence subject to reduction by the Parole Commission, and no longer does the court retain its traditional ability to moderate the effect of the prosecutor's decisions by ultimately controlling the sentence imposed. A district - court must consider the relevant conduct and the sentencing facts as presented to it and must impose a sentence within a given range if the appropriate facts are established by reliable evidence. The prosecutor’s control over the ultimate sentence increases the prosecutor's bargaining power in plea negotiations.” Heaney, supra, at 190.
. The Guidelines generate criticism by neutral and informed observers, including many federal sentencing judges. After more than twenty years of judicial turmoil, it is time for an improved federal sentencing procedure that will make criminal sentencing fair, reasonable, and effective. It is time to check the immense power of prosecutors and restore federal sentencing to judges. As I have said before, "Is anyone out there listening?" United States v. Alatorre, 207 F.3d 1078, 1080 (8th Cir.2000) (Bright, J., concurring).
. The prosecutor’s mental process is of no concern, whether good or bad. It is the reasons, facts, and standards for sentencing that should be disclosed to the district court.
. The district judge commented during sentencing that this is not the first time the government has refused to disclose to him how it arrives at its recommendation. This observation suggests that the prosecutors in that district engage in guesswork, not reasoning, in making recommendations for a sentencing reduction.
.This explanation is more likely, considering the government's position to this court about its “deliberative process privilege.”
. See, e.g., United States v. Saenz, 429 F.Supp.2d 1081, 1089-90 (N.D.Iowa 2006) (referring to “the routine practice by the United States Attorney's Office in this District of making ridiculously stingy recommendations concerning the extent to which the court should depart downward for a defendant's substantial assistance, with no explication of the basis for such recommendations, accompanied by unfounded assertions that the court must then give such recommendations substantial deference”).