United States v. Burns

BYE, Circuit Judge,

with whom BRIGHT, Circuit Judge, joins, concurring in part and dissenting in part.

The majority holds the district court’s sixty percent downward departure was excessive and unreasonable under the circumstances presented by this case. Because the district court appropriately exercised its sentencing discretion, I respectfully dissent from the majority’s decision to vacate the sentence and remand for resentencing. I join the majority’s opinion in other respects. I also join in Judge Bright’s dissent.

I

We review the extent of a substantial assistance downward departure for an abuse of discretion. United States v. Coyle, 429 F.3d 1192, 1193 (8th Cir.2005). “[Tjhere is no bright line percentage or mathematical formula to determine when the extent of a substantial assistance motion becomes unreasonable.” United States v. Pepper, 486 F.3d 408, 411 (8th Cir.2007) (Pepper II). In an effort to divine what is unreasonable, we have broadly stated “some proportionality must exist between the defendant’s assistance and the extent of the departure; for example, an extraordinary departure must be supported by extraordinary circumstances.” Id. (citing United States v. Saenz, 428 F.3d 1159, 1162-65 (8th Cir.2005) (Saenz /)). This unremarkable premise, however, offers scant assistance to district courts charged with the responsibility of imposing reasonable sentences. For proportionality to have meaning, we must engage in a substantive discussion of “extraordinary departures” and “extraordinary circum*778stances.” Along the substantial-assistance-bell-curve described by the majority, we need to determine what reductions in sentences — ranging from 0 to 100 percent — are ordinary and which are extraordinary. After establishing what ordinary and extraordinary reductions are, we can begin to measure the quality and quantity of assistance necessary to obtain one or the other.

A

Despite cases eschewing a bright line rule, we have held, without explanation, that departures or variances in the range of fifty percent are extraordinary. See United States v. Meyer, 452 F.3d 998, 1001 (8th Cir.2006) (holding a fifty percent variance extraordinary); United States v. Bryant, 446 F.3d 1317, 1319-20 (8th Cir.2006) (holding a fifty-seven percent variance extraordinary); United States v. Larrabee, 436 F.3d 890, 892-93 (8th Cir.2006) (holding a fifty-four percent variance extraordinary); United States v. Kendall, 446 F.3d 782, 785 (8th Cir.2006) (holding a fifty percent departure extraordinary); Saenz I, 428 F.3d at 1162 (noting a fifty percent departure would be an extraordinary sentence reduction); United States v. Dalton, 404 F.3d 1029, 1033-34 (8th Cir. 2005) (citing United States v. Enriquez, 205 F.3d 345, 348 (8th Cir.2000) (describing a fifty percent downward departure as extraordinary in light of the government’s recommended twenty percent reduction)). This “fifty percent rule” debuted in Dalton, and quickly became, without benefit of critical analysis, the guiding principle used to evaluate the reasonableness of departures and variances. Despite no dis-cernable resistance to its adoption, the rule resides as a squatter in our court’s jurisprudence, owing its apparent legitimacy to having been oft repeated.

As ably recounted by Chief Judge Bennett23 in United States v. Saenz, 429 F.Supp.2d 1081 (N.D.Iowa 2006) (Saenz II), the genesis for the rule lies in dicta found in Enriquez.

[T]he comment in Enriquez upon which the Circuit Court relied in Dalton and Saenz was not made in the context of a determination of whether a district court’s downward departure for substantial assistance was “unreasonable” or “extraordinary.” Instead, in Enriquez, the defendant argued “that he should be allowed to withdraw his plea because the government failed to keep an alleged promise to recommend an above-average sentence reduction for his wife.” Enri-quez, 205 F.3d at 348. The Circuit Court concluded that the district court had not erred in finding that there was no such promise. Id. Only then did the Circuit Court comment, apparently as an afterthought, that, “as a practical matter, Mrs. Enriquez actually did receive an extraordinary sentence reduction of 50 per cent., as opposed to the 20 per cent, expected.” Id. I cannot believe that an off-hand statement, which is plainly dicta in the decision in which it appears, could possibly have been intended to establish the benchmark for what constitutes an “unreasonable” or “extraordinary” downward departure in the very different context of a reduction for substantial assistance. Certainly, there was no attempt in Enriquez (or indeed, in the subsequent decisions in Dalton and Saenz) to provide a reasoned basis for establishing a 50 percent reduction as the benchmark for “unrea*779sonableness” of a reduction, whether the reduction is for substantial assistance or for any other reason. Moreover, to the extent that the court in Enriquez provided any basis for labeling a 50 percent reduction “extraordinary,” the basis was that only a 20 percent reduction was “expected,” and even then, there was no explanation of the basis on which only a 20 percent reduction was “expected.” Id. Thus, the decision in Enriquez does not reasonably stand for the proposition that a 50 percent reduction in sentence for any reason, let alone for substantial assistance, is “extraordinary.”

Id. at 1090-91.

Despite its dubious origins, the rule’s simplicity and ease of application make it enticing. Our responsibility, however, is to find what is reasonable — not expedient — and, like Judge Bennett, I find no reasoned basis in Enriquez for concluding a fifty percent departure is ipso facto extraordinary. Indeed, Judge Bennett’s well-reasoned discussion in Saenz II, convinces me a fifty percent departure for substantial assistance is not extraordinary. 429 F.Supp.2d at 1091-95.1 Rather, departures in the range of fifty percent represent the nationwide median afforded defendants providing substantial assistance, and are, therefore, quite ordinary. The U.S. Sentencing Commission (Commission), Special Post-Booker Coding Project, (data extracted February 22, 2006; table prepared February 23, 2006) (Special Post-Booker Coding Project), compared the percentage of decrease in sentences for substantial assistance — calculated from the minimum U.S. Sentencing Guidelines (Guidelines) range sentence — in 9,061 cases nationwide. Overall, the median decrease was 49.9 percent. A review of 5,754 drug trafficking cases revealed a nationwide median decrease in those cases of 45.8 percent.24 This data informs our present discussion by demonstrating, in concrete and reliable terms, that our reliance upon Enriquez and the “fifty percent rule” it spawned was misguided. We now know, “far from being ‘extraordinary,’ a 50 percent reduction for substantial assistance very nearly approximates ‘the median’ and, as such, is actually and necessarily ‘ordinary.’ ” Saenz II, 429 F.Supp.2d at 1092.

Today’s decision, while citing cases which held departures in the range of fifty percent ipso facto extraordinary, offers another explanation for having vacating those sentences. The majority rejects “aggregate statistics” as a guide for determining what departures are extraordinary, arguing instead “the ‘extraordinary’ label more accurately serves as a convenient characterization of departures that we have considered particularly large relative to the two to four offense level adjustments generally envisioned by the structure of the sentencing guidelines for mitigating or aggravating circumstances.” This alternate method for gauging what is extraordinary was first alluded to in Saenz I, 428 F.3d 1159, where the court concluded

Departures under [Guidelines] § 5K1.1 and reductions under [18 U.S.C.] § 3553(e) should not be untethered from the structure of the advisory guidelines. They take place, rather, within the framework of an advisory guideline scheme designed to reduce unwarranted sentence disparities among similar defendants, and we are mindful that the Sentencing Commission has concluded *780that most adjustments for aggravating or mitigating circumstances should be in the amount of two, three, or four offense levels.

Id. at 1162 (internal citations omitted).

I seriously question whether our earlier decisions intended a definition of extraordinary tethered to adjustments for mitigating and aggravating circumstances. Nevertheless, assuming the court had such considerations in mind when it decided those cases, this alternate benchmark for ordinary or extraordinary should also be rejected.

As the Special Posb-Booker Coding Project proves, the median sentence reduction nationwide is nearly fifty percent. In other words, along the bell curve representing possible departures, those in the range of fifty percent are ordinary, with extraordinary departures falling somewhere to the far left and far right of ordinary. By defining extraordinarily high departures as those exceeding two, three or four offense levels, the court arbitrarily moves ordinary to the left of the bell curve. Adjustments of two, three and four levels approximate sentencing reductions of twenty-four, thirty-four, and forty-two percent, respectively. Applying the majority’s newly-minted test, extraordinary departures now fall on either side of twenty-four percent and forty-two percent, with departures exceeding forty-two percent displacing fifty percent departures as ipso facto extraordinary. By this reasoning, departures deemed extraordinarily low nationwide are ordinary in our court, and departures lower than the national median are extraordinarily high. This skewed view of what is ordinary is directly contradicted by the data from the Special Posb-Booker Coding Project, but is consistent with our court’s demonstrated tendency to closely scrutinize reductions in sentences while readily affirming increases. See United States v. McDonald, 461 F.3d 948, 960 (8th Cir.2006) (Bye, dissenting); United States v. Meyer, 452 F.3d 998, 1000 n. 3 (8th Cir.2006).

Additionally, the majority’s reliance on adjustments for mitigating and aggravating circumstances as a benchmark for what is ordinary in § 5K1.1 departures is contradicted by the structure of the Guidelines. When considering adjustments for mitigating and aggravating conduct, a district court is called upon to determine whether an adjustment is factually supported. The degree to which conduct supporting the adjustment exists is not at issue. Instead, once the threshold fact finding is made, a defendant’s base offense level is decreased or increased by a preset number of offense levels as dictated by the Commission.

Conversely, under § 5K1.1, the sentencing court is required to rate the value of a defendant’s substantial assistance along a continuum of extraordinarily low, ordinary, and extraordinarily high, using a non-exclusive list of factors, which include the significance, usefulness, truthfulness, completeness, reliability, nature, extent, timeliness, etc., of a defendant’s assistance. The district court then awards an appropriate reduction in sentence ranging from 0 to 100 percent. The evaluative process anticipated by § 5K1.1 does not lend itself to the same limitations which constrain district courts applying sections dealing with mitigating and aggravating circumstances. Were this not true, the Commission would have imposed a similar framework upon substantial assistance departures. It could easily have defined ordinary assistance as deserving reductions of between two and four offense levels, with extraordinary assistance garnering preset minimum and maximum reductions. Instead, the Commission, recognizing the broad range in the quality and quantity of possible substantial assistance, left it to district *781courts to evaluate the assistance and determine the appropriate reduction. By imposing the same construct on substantial assistance departures as applies to mitigating and aggravating adjustments, the majority restricts the discretion of district courts in a manner neither authorized nor intended by the Commission.

This court has often noted the need to reduce unwarranted sentencing disparities among similarly situated defendants as the overarching concern when vacating substantial assistance departures. See, e.g., Saenz I, 428 F.3d at 1164; see also 18 U.S.C. § 3553(a)(6) (requiring the sentencing court to consider “the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct”). Paradoxically, our continued allegiance to the fifty percent rule or today’s rule defining ordinary as the equivalent of a two to four level adjustment, exacerbates the very problem it claims to prevent. Nationwide defendants providing ordinary substantial assistance receive departures ranging in the area of fifty percent. In our court the same defendants receive departures that are in comparison extraordinarily low.

B

As shown above, the Special Post-Booker Coding Project offers a meaningful basis for determining where ordinary and extraordinary fall along the curve of possible departures. Our next task is to define the quality and quantity of substantial assistance necessary to earn a given departure. I concur with the majority’s observation that statistics are not as useful to this inquiry. Instead, we need to compare the circumstances offered in support of the departure under review to the circumstances presented in prior decisions. After comparing the assistance provided by Burns to the assistance provided by other defendants, I am satisfied the district court’s sixty percent departure was reasonable.

My review of the district court’s departure is guided by our decisions in United States v. Haack, 403 F.3d 997, 1002-03 (8th Cir.), cert. denied, 546 U.S. 913, 126 S.Ct. 276, 163 L.Ed.2d 246 (2005), United States v. Pizano, 403 F.3d 991, 995 (8th Cir.2005), as well as Dalton, Saenz I, and Pepper II. In Haack, we reversed a fifty-seven percent downward departure, finding it unreasonable in light of the defendant’s limited assistance. 403 F.3d at 998. There the defendant made incriminating statements when first arrested which helped officers obtain a search warrant. Id. at 999. For several months thereafter, however, the defendant refused to cooperate. When he finally did cooperate, his information was of limited use to the government and he was not available to provide useful grand jury testimony. Id. at 1005. We also expressed reservations about comments the district court made at sentencing suggesting the departure may have been based in part on the court’s dissatisfaction with the sentencing guidelines. Id. at 1006.

In Dalton, we concluded the district court’s seventy-five percent downward departure was unreasonable because the defendant 1) provided only corroborative testimony before the grand jury, 2) did not implicate a large number of people, 3) did not serve as a primary government witness against anyone, and 4) absconded from custody while on pretrial release. 404 F.3d at 1033.

In Saenz I, we reversed a sixty-eight percent downward departure where the defendant provided substantial but only “modest” assistance. 428 F.3d at 1163. In Saenz I, the defendant’s corroborating testimony at a co-defendant’s sentencing hearing supported a two-level increase in the Guideline offense level. Id. Saenz also *782attempted, unsuccessfully, to assist the government with an investigation into drug trafficking in California. “She did not, however, play a lead role in building a case on another offender, participate in undercover work (such as by wearing a recording device or making controlled purchase), give testimony in a grand jury or at a trial, or experience significant risk of injury or death.” Id25

Conversely, in Pizano, we affirmed a seventy-five percent downward departure where the defendant began his cooperation immediately, supplied grand jury testimony against a family member and a major figure in the conspiracy, and put himself at risk. 403 F.3d at 995-96. In Pepper II, we affirmed a forty percent downward departure where the defendant’s assistance consisted of information about two individuals’ involvement with illegal guns and drugs, which the district court characterized as “pedestrian” or “average.” 486 F.3d at 411; see also United States v. Pepper, 412 F.3d 995, 996-97 (8th Cir.2005) (Pepper I) (vacating and remanding Pepper’s initial sentencing).

The reversals in Haack, Dalton, and Saenz I, are easily distinguishable and support the district court’s sixty percent departure in this case. Burns began his cooperation immediately, before asserting his right to counsel and before being made aware of the impact the Guidelines would have on his sentence. Additionally, he continued to cooperate through sentencing, provided key grand jury testimony leading to the indictment and conviction of another defendant, and offered detailed information about several groups who were manufacturing methamphetamine. The significance of Burns’s cooperation was not diminished by a subsequent refusal to cooperate, Haack, 403 F.3d at 1005, a serious lapse in judgment as demonstrated in Dalton, 404 F.3d at 1033, or any suggestion the district court took into account improper or irrelevant factors, Haack, 403 F.3d at 1006. The district court concluded Burns’s assistance fell between the assistance provided in Pizano and Pepper II. Though not so substantial as to warrant the seventy-five percent departure upheld in Pizano, Burns provided markedly greater assistance than the pedestrian assistance provided by the defendant in Pepper II. After reviewing those cases, I find no basis to conclude the district court’s departure — which approximates the middle ground between Pizano and Pepper II — was unreasonable.

C

The majority also takes exception to the weight the district court afforded three of the five enumerated § 5Kl.l(a) factors.

As a preliminary matter, the majority opinion discusses the various § 5Kl.l(a) factors considered by the district court in isolation, concluding none of them individually supports the court’s sixty percent departure. The record in this case makes clear the district court’s departure was not based on any single factor. Rather, taken together, the court concluded the quality and quantity of Burns’s assistance warranted a sixty percent departure. Section 5K1.1 provides: “The appropriate reduction shall be determined by the court for reasons stated that may include, but are not limited to, consideration of the following [enumerated factors].” Nothing in the structure of § 5K1.1 suggests that for a reduction to be appropriate it must be justified by a single factor or by each factor standing alone. Nor does § 5K1.1 suggest all the factors must be present or *783present to the same degree. Instead, it is apparent district courts are to consider the entire universe of a defendant’s assistance to determine the appropriate departure. The majority’s analysis of the district court’s consideration of the § 5K1.1 factors is, of course, further colored by its unfounded belief that departures exceeding approximately forty-two percent should be deemed extraordinary. When properly analyzed, the district court’s sixty percent departure is reasonable if Burns provided sufficient assistance to warrant a departure falling on the high side of ordinary.

First, the majority finds the district court improperly analyzed the timeliness factor. At sentencing, the government conceded ninety-nine percent of defendants do not cooperate before they are arrested. Sent. Tr. 6. Nonetheless, the majority concludes: “Although few defendants may participate earlier than did Burns, if a sufficient number participate in a similarly timely manner, Burns’s participation could not be viewed as extraordinary.” The majority further concludes the district court failed to consider the “government’s unaddressed and uncontested insistence that many defendants cooperate in a similarly timely fashion.” Under the facts of this case, however, Burns’s timeliness must be considered extraordinary.

At sentencing, the government was asked whether, aside from “those very rare situations where a defendant comes forward and cooperates before he’s arrested [did] this defendant cooperate[ ] in about as timely a manner” as possible? Sent. Tr. 7. In response, the government’s attorney stated: “In this case with this defendant, as soon as he was arrested, he told everything; he was complete and truthful, yes.” Id. Thus, according to the government, the only way Burns’s cooperation could have been more timely was if he had come forward prior to his arrest— which, again, according to the government, only one percent of defendants do. This concession by the government renders irrelevant its claim “that many defendants cooperate in a similarly timely fashion.” Whether that number be many or few, under no' application of § 5K1.1 can it be reasonable to conclude a defendant’s cooperation is extraordinary only if it exceeds the cooperation of ninety-nine percent of all other defendants. Finally, I am unpersuaded by the majority’s reliance on Saenz I, 428 F.3d at 1162-63, as supporting its rejection of the district court’s timeliness evaluation. In Saenz I, though timely, the defendant’s cooperation was discounted because it did not compel anyone else to plead guilty. Id. Here it is uncontested Burns’s cooperation led to the indictment and guilty plea of another defendant.

Next, the majority takes exception to the district court’s evaluation of the truthfulness and completeness of Burns’s assistance. At sentencing, the district court considered the truthfulness, completeness, and reliability of Burns’s information, and concluded it was “a hundred percent complete, a hundred percent truthful, and a hundred percent reliable.” Sent. Tr. 14. The government, as noted above, concedes Burns “told everything; he was complete and truthful.” Sent. Tr. 7. The majority, however, concludes Burns’s absolute compliance with § 5K1.1(a)(2) is insufficient to be deemed extraordinary. When evaluating Burns’s timeliness, the majority concluded only one percent of defendants who are the most timely are extraordinary. When evaluating truthfulness, completeness, and reliability, the majority concludes even 100 percent compliance is insufficient to be extraordinary. I can conceive of no reasonable application of § 5K1.1 which would require a defendant to do the impossible, i.e., provide more than 100 percent compliance, for his cooperation to be deemed extraordinary.

*784Finally, the majority faults the district court’s evaluation of the nature and extent of Burns’s cooperation, and its evaluation of the usefulness and significance of his cooperation. According to the majority, the district court “applied a test that compared Burns’s assistance to the assistance it speculatively believed the defendant capable of providing.” It further contends the district court’s departure based on Burns’s “not inconsiderable” assistance, leaves too little room for more extensive assistance based departures.

I am unable to divine from the record any basis for concluding the district court’s evaluation of the nature and extent of Burns’s cooperation was speculative. The district court, while recognizing other defendants provide greater information, found Burns provided “every single bit of information he knew.” Sent. Tr. 13-14. Conversely, there is nothing in the record suggesting Burns did not do everything he could do or that was requested and asked of him.

The district court found also Burns’s cooperation both very significant and very useful; Burns continued to cooperate through sentencing, provided key grand jury testimony leading to the indictment and guilty plea of another defendant, and offered detailed information about'several groups who were manufacturing methamphetamine. I find nothing unreasonable about the district court’s evaluation of the significance and usefulness of Burns’s cooperation and the role it played in support of the court’s sixty percent departure. The majority’s concern about the court’s departure leaves too little room for departures of greater magnitude is belied by the availability of departures in excess of sixty percent. Though rarely traversed in our circuit, the range of departures between 60 and 100 percent represents nearly one half of the total range of possible departures available to defendants providing substantial assistance. The belief about too little unclaimed ground remains after the district court’s departure results from this court’s steadfast refusal to extend its gaze beyond a limited horizon. .The remaining territory is more than sufficient to accommodate defendants who provide greater substantial assistance.

II

For the foregoing reasons, I respectfully dissent from the court’s decision vacating the district court’s sentence and remanding for resentencing. I concur in footnote six and part III. B. of the majority’s opinion.

. Chief Judge Bennett, whose sentencing decision we review in this case, has served as a United States District Court Judge since 1994 and is responsible for sentencing over 1,400 defendants. See United States v. Saenz, 429 F.Supp.2d 1081, 1091 (N.D.Iowa 2006) {Saenz II).

. Owing to small revisions in the Special Post-Booker Coding Project, the numbers of cases referenced herein (9,061 & 5,754) are slightly higher than the numbers used by Judge Bennett (8,854 & 5,660) in Saenz II. The percentages of decrease in sentences, however, are identical.

. Notably, on remand for resentencing, Judge Bennett imposed an identical sentence. Saenz II, 429 F.Supp.2d at 1108. The government’s appeal of Saenz’s resentencing was later voluntarily dismissed.