OCTOBER TERM, 1995
Syllabus
MELENDEZ
v. UNITED STATES
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD
CIRCUIT
No.95-5661. Argued February 27, 1996-Decided June 17, 1996
After agreeing with others to buy cocaine, petitioner was
charged with a conspiracy violative of 21 U. S. C. § 846, which
carries a statutory minimum sentence of 10 years' imprisonment. He
ultimately signed a plea agreement providing,
inter alia,
that in return for his cooperation with the Government's
investigation and his guilty plea, the Government would move the
sentencing court, pursuant to § 5K1.1 of the United States
Sentencing Guidelines, to depart downward from the otherwise
applicable Guideline sentencing range, which turned out to be 135
to 168 months' imprisonment. Although the agreement noted the
applicability of the 1O-year statutory minimum sentence, neither it
nor the ensuing § 5K1.1 motion mentioned departure below that
minimum. Pursuant to the motion, the District Court departed
downward from the Guideline range in sentencing petitioner. It also
ruled, however, that it had no authority to depart below the
statutory minimum because the Government had not made a motion,
pursuant to 18 U. S. C. § 3553(e), that it do so. It thus sentenced
petitioner to 10 years, and the Third Circuit affirmed.
Held: A Government motion attesting to the defendant's
substantial assistance in a criminal investigation and requesting
that the district court depart below the minimum of the applicable
Guideline sentencing range does not also authorize the court to
depart below a lower statutory minimum sentence. Pp. 124-131.
(a) Guideline § 5K1.1 does not create a "unitary" motion
system.
Title 18 U. S. C. § 3553(e) requires a Government motion
requesting or authorizing the district court to "impose a sentence
below a level established by statute as minimum sentence" before
the court may impose such a sentence. Nothing in §3553(e) suggests
that a district court has the power to impose such a sentence when
the Government has not authorized it, but has instead moved for a
departure only from the applicable Guidelines range. Nor does
anything in §3553(e) or 28 U. S. C. § 994(n) suggest that the
Commission itself may dispense with § 3553(e)'s motion requirement
or, alternatively, "deem" a motion requesting or authorizing
different action-such as a departure below the Guidelines
minimum-to be a motion authorizing departure below the statutory
minimum. Section 5K1.1 cannot be read as attempting to exercise
this nonexistent authority. That section states that "[u]pon motion
of the
121
government ... the court may depart from the guidelines," while
its Application Note 1 declares that "[u]nder circumstances set
forth in ... § 3553(e) and ... § 994(n) ... substantial assistance
... may justify a sentence below a statutorily required minimum
sentence." One of the circumstances set forth in §3553(e) is that
the Government has authorized the court to impose such a sentence.
The Government is correct that the relevant statutory provisions
merely charge the Commission with constraining the district court's
discretion in choosing a specific sentence once the Government has
moved for a departure below the statutory minimum, not with
"implementing" §3553(e)'s motion requirement, and that § 5K1.1 does
not improperly attempt to dispense with or modify that requirement.
Pp. 124-130.
(b) For two reasons, the Court need not decide whether the
Government is correct in reading § 994(n) to permit the Commission
to construct a unitary motion system by providing that the district
court may depart below the Guidelines range only when the
Government is willing to authorize the court to depart below the
statutory minimum, if the court finds that to be appropriate.
First, even if the Commission had done so, that would not help
petitioner, since the Government has not authorized a departure
below the statutory minimum here. Second, the Commission has not
adopted this type of unitary system. Pp. 130-131.
55 F.3d
130, affirmed.
THOMAS, J., delivered the opinion of the Court, in which
REHNQUIST, C. J., and SCALIA, KENNEDY, SOUTER, and GINSBURG, JJ.,
joined, and in which O'CONNOR and BREYER, JJ., joined as to Parts I
and II. SOUTER, J., filed a concurring opinion,
post, p.
131. STEVENS, J., filed an opinion concurring in the judgment,
post, p. 132. BREYER, J., filed an opinion concurring in
part and dissenting in part, in which O'CONNOR, J., joined,
post, p. 132.
Patrick A. Mullin argued the cause for petitioner. With
him on the briefs were
David Zlotnick and
Peter Go
ldberger.
Irving L. Gornstein argued the cause for the United States. With
him on the brief were Solicitor General Days, Acting Assistant
Attorney General Keeney, and Deputy Solicitor General Dreeben.
*
* Alan I. Horowitz, James R. Lovelace, and
Barbara E. Bergman filed a brief for the National
Association of Criminal Defense Lawyers as
amicus curiae
urging reversal.
Chester M. Keller filed a brief for the Association of
Criminal Defense Lawyers in New Jersey as
amicus curiae.
122
JUSTICE THOMAS delivered the opinion of the Court.
The issue here is whether a Government motion attesting to the
defendant's substantial assistance in a criminal investigation and
requesting that the district court depart below the minimum of the
applicable sentencing range under the Sentencing Guidelines also
permits the district court to depart below any statutory minimum
sentence. We hold that it does not.
I
Petitioner and several others entered into an agreement to buy
cocaine from confidential informants of the United States Customs
Service. As a result, petitioner was charged with conspiring to
distribute and to possess with intent to distribute more than five
kilograms of cocaine, see § 406, 84 Stat. 1265, as amended, 21 U.
S. C. § 846, a crime that carries a statutory minimum sentence of
10 years' imprisonment, see § 841(b)(1)(A). Plea negotiations
ensued, and petitioner ultimately signed a cooperating plea
agreement. The agreement provided, in pertinent part, that in
return for petitioner's cooperation with the Government's
investigation and his guilty plea, the Government would "move the
sentencing court, pursuant to Section 5K1.1 of the Sentencing
Guidelines, to depart from the otherwise applicable guideline
range." App. 9. The agreement noted that the offense to which
petitioner would plead guilty "carries a statutory mandatory
minimum penalty of 10 years' imprisonment."
Id., at 6. The
agreement did not require the Government to authorize the District
Court to impose a sentence below the statutory minimum, nor did it
specifically state that the Government would oppose departure below
the statutory minimum.
Petitioner pleaded guilty to the charged conspiracy. The
probation officer determined that the Guideline sentencing range
applicable to petitioner's crime was 135 to 168 months'
imprisonment. In a letter to the court, the Government described
the assistance rendered by petitioner and moved the
123
court to impose "a sentence lower than what the [c]ourt ha[d]
determined to be the otherwise applicable
[sic] under the
sentencing guidelines."
Id., at 13-14. The letter
specifically noted that "[t]his motion is made pursuant to Section
5K1.1."
Id., at 13. The Government did not request a
sentence below the statutory minimum, although, again, it did not
state that the Government opposed such a departure. The District
Court granted the Government's motion and departed downward from
the sentencing range set by the Guidelines. However, because the
Government had not also moved the District Court to depart below
the statutory minimum pursuant to 18 U. S. C. § 3553(e), the court
ruled that it had no authority to so depart; it thus imposed the
10-year minimum sentence required by statute.
On appeal, petitioner contended that the District Court had
erred in concluding that it had no authority to depart below the
statutory minimum. A § 5K1.1 motion, he argued, not only allows the
court to depart downward from the sentencing level set by the
Guidelines but also permits the court to depart below a lower
statutory minimum. See United States Sentencing Commission,
Guidelines Manual § 5K1.1, p. s. (Nov. 1995) (USSG). A divided
panel of the Court of Appeals for the Third Circuit rejected that
argument and affirmed the 10-year sentence.
55
F.3d 130 (1995). A petition for rehearing was denied, with six
judges dissenting.
As we noted in
Wade v.
United States, 504 U. S. 181, 185
(1992), the Courts of Appeals disagree as to whether a Government
motion attesting to the defendant's substantial assistance and
requesting that the district court depart below the minimum of the
applicable sentencing range under the Guidelines also permits the
district court to depart below any statutory minimum.1
1 Compare
55 F.3d
130 (CA3 1995) and
United States v.
RodriguezMorales, 958 F.2d
1441 (CA8), cert. denied, 506 U. S. 940 (1992), with
United States v.
Ah-Kai, 951 F.2d
490 (CA2 1991),
United States v.
Beckett,
996 F.2d
70 (CA5 1993),
United States v.
Wills,
35 F.3d
1192 (CA7 1994), and
United States v.
Keene, 933 F.2d
711 (CA9 1991).
124
We granted certiorari to resolve the conflict. 516 U. S. 963
(1995). We now hold that such a motion does not authorize a
departure below a lower statutory minimum.
II
The question presented involves two subsections of federal
statutes and a policy statement of the Guidelines. Title 18 U. S.
C. § 3553(e) provides:
"Limited authority to impose a sentence below a statutory
minimum.-Upon motion of the Government, the court shall have the
authority to impose a sentence below a level established by statute
as minimum sentence so as to reflect a defendant's substantial
assistance in the investigation or prosecution of another person
who has committed an offense. Such sentence shall be imposed in
accordance with the guidelines and policy statements issued by the
Sentencing Commission pursuant to section 994 of title 28, United
States Code."
Title 28 U. S. C. § 994(n), in turn, states:
"The Commission shall assure that the guidelines reflect the
general appropriateness of imposing a lower sentence than would
otherwise be imposed, including a sentence that is lower than that
established by statute as a minimum sentence, to take into account
a defendant's substantial assistance in the investigation or
prosecution of another person who has committed an offense."
Finally, the text of § 5K1.1 of the Guidelines provides:
"Substantial Assistance to Authorities (Policy Statement)
"Upon motion of the government stating that the defendant has
provided substantial assistance in the investigation or prosecution
of another person who has committed an offense, the court may
depart from the guidelines.
125
"(a) The appropriate reduction shall be determined by the court
for reasons stated that may include, but are not limited to,
consideration of the following: [List of five factors for the
court's consideration, including] the government's evaluation of
the assistance rendered."
Petitioner argues that § 5K1.1 creates what he calls a "unitary"
motion system, in which a motion attesting to the substantial
assistance of the defendant and requesting a departure below the
Guidelines range also permits a district court to depart below the
statutory minimum.2 The Government views § 5K1.1 as establishing a
binary motion system, which permits the Government to authorize a
departure below the Guidelines range while withholding from the
court the authority to depart below a lower statutory minimum. The
parties argue, naturally, that their respective interpretations of
the system actually adopted by the Sentencing Commission were
permissible ones under § 3553(e) and § 994(n).3
We believe that § 3553(e) requires a Government motion
requesting or authorizing the district court to "impose a sentence
below a level established by statute as minimum
2 Petitioner also argues for the first time in his reply brief
that the plea agreement into which he entered was at least
ambiguous with respect to whether it required the Government to
move the District Court to depart below the statutory minimum-and
thus that the agreement itself permitted the court to depart below
the 10-year minimum. See Reply Brief for Petitioner 7-8. We do not
view this issue as included within the question upon which we
granted certiorari, see Pet. for Cert. 3 ("Did the sentencing court
have the discretion to depart below the applicable statutory
minimum once the United States moved for departure under USSG §
5K1, without the requirement of a second government departure
application under 18 U. S. C. 3553(e)?"), and petitioner appears to
concede that it is not, see Tr. of Oral Arg. 15. We therefore
decline to address the argument.
3 Although it is plain that under § 994(n), the Commission was
at least authorized to create a system in which
no
Government motion of any kind need be filed before the district
court may depart below the Guidelines minimum, neither party argues
that the Commission has created such a system.
126
sentence" before the court may impose such a sentence.
Petitioner and his
amici repeatedly characterize the motion
required by § 3553(e) as a "motion that substantial assistance has
occurred," Brief for Petitioner 12, a "motion acknowledging the
defendant's 'substantial assistance,'"
id., at 8, and the
like. But the term "motion" generally means "[a]n application made
to a court or judge for purpose of obtaining a rule or order
directing some act to be done in favor of the applicant." Black's
Law Dictionary 1013 (6th ed. 1990).4 Papers simply "acknowledging"
substantial assistance are not sufficient if they do not indicate
desire for, or consent to, a sentence below the statutory
minimum.5
Of course, the Government did more than simply "acknowledge"
substantial assistance here: It moved the court to impose a
sentence below the Guideline range. But we agree with the
Government that nothing in § 3553(e) suggests that a district court
has power to impose a sentence below the statutory minimum to
reflect a defendant's cooperation when the Government has not
authorized such a sentence, but has instead moved for a departure
only from the applicable Guidelines range. Nor does anything in §
3553(e) or § 994(n) suggest that the Commission itself may dispense
with § 3553(e)'s motion requirement or, alternatively, "deem"
4 See also Random House Dictionary of the English Language 1254
(2d ed. 1987) (defining "motion" in the legal sense as "an
application made to a court or judge for an order, ruling, or the
like");
Wade v.
United States, 504 U. S. 181, 187 (1992)
("[Substantial assistance] is a necessary condition for [a
departure, but] it is not a sufficient one. The Government's
decision not to move may have been based not on a failure to
acknowledge or appreciate [the defendant's] help, but simply on its
rational assessment of the cost and benefit that would flow from
moving").
5We do not mean to imply, of course, that specific language
(such as that quoted in text) or, on the other hand, an express
reference to § 3553(e) is necessarily required before a court may
depart below the statutory minimum. Cf. Brief for Petitioner 5-6,
18, 32, 34 (characterizing the opposing argument in this fashion).
But the Government must in some way indicate its desire or consent
that the court depart below the statutory minimum before the court
may do so.
127
a motion requesting or authorizing different action-such as a
departure below the Guidelines minimum-to be a motion authorizing
the district court to depart below the statutory minimum.
Moreover, we do not read § 5K1.1 as attempting to exercise this
nonexistent authority. Section 5K1.1 says: "Upon motion of the
government stating that the defendant has provided substantial
assistance ... the court may depart from the guidelines," while its
Application Note 1 says: "Under circumstances set forth in 18 U. S.
C. § 3553(e) and 28 U. S. C. § 994(n) ... substantial assistance
... may justify a sentence below a statutorily required minimum
sentence," § 5K1.1, comment., n. 1. One of the circumstances set
forth in § 3553(e) is, as we have explained previously, that the
Government has authorized the court to impose a sentence below the
statutory minimum.
Petitioner and his
amici argue that § 3553(e) requires a
sentence below the statutory minimum to be imposed in "accordance"
with the Guidelines; that § 994(n) specifically directs the
Commission to draft a provision covering substantial assistance
cases, including cases in which a sentence below a statutory
minimum is warranted; and that if § 5K1.1 is not read as creating a
unitary motion system, then the Commission has improperly failed to
meet its obligation, because no other provision of the Guidelines
implements § 3553(e) and § 994(n). They also argue (1) that the
reference to § 3553(e) in § 5K1.1's Application Note 1 indicates
that § 5K1.1 is a "conduit" established by the Commission for
"implementation" of § 3553(e); (2) that Application Note 2's use of
the broad term "sentencing reduction," rather than "departure from
the guidelines range," supports petitioner's view that § 5K1.1
authorizes departures below a statutory minimum; 6 (3) that
Application Note 3 makes sense only on
6 Application Note 2 provides in relevant part: "The sentencing
reduction for assistance to authorities shall be considered
independently of any reduction for acceptance of responsibility."
USSG § 5K1.1, comment., n. 2.
128
the assumption that the district court retains "full
discretionary power" over the extent of the sentencing reduction
(i.
e., the authority to choose any sentence once the
Government makes any motion confirming the defendant's substantial
assistance); 7 (4) that the reference to § 5K1.1 alone (rather than
to § 3553(e)) in USSG § 2D1.1's Application Note 7 further supports
petitioner's claim that § 5K1.1 is a conduit for implementation of
§ 3553(e); 8 and (5) that if the factors described in § 5K1.1(a)
limiting the district court's discretion do not apply to sentences
imposed after the Government moves to depart below the statutory
minimum, then the district court's discretion will be wholly
unlimited in those circumstances.
In the Government's view, § 3553(e) already gives the district
court authority to depart below the statutory minimum on motion to
do so by the prosecutor. The Government urges us to read the last
sentence of § 3553(e), and the inclusion of the phrase "including a
sentence that is lower than that established by statute as a
minimum sentence" in § 994(n), as merely requiring the Commission
to constrain the district court's discretion in choosing a sentence
after the Government moves to depart below the statutory minimum.
The Government contends that the first paragraph of § 5K1.1 does
not authorize departures below the statutory minimum, but that §
5K1.1(a) does apply to sentences imposed after the
7 Application Note 3 provides: "Substantial weight should be
given 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." USSG § 5K1.1, comment.,
n. 3.
8 Application Note 7 provides in pertinent part: "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. Section 2D1.1 is a Guideline addressed to a variety of drug
offenses.
129
Government moves to depart below the statutory minimum (as well
as to sentences imposed after the Government moves to depart below
the Guidelines range); § 5K1.1(a) thus implements the requirements
of § 3553(e) and § 994(n) that relate to sentences below the
statutory minimum, by requiring the district court to consider the
factors listed in §§ 5K1.1(a)(1)-(5) in determining the appropriate
extent of a departure below the statutory minimum. According to the
Government, the difficulties and gaps referred to by petitioner
vanish once § 5K1.1(a) is so construed.
We agree with the Government that the relevant parts of the
statutes merely charge the Commission with constraining the
district court's discretion in choosing a specific sentence after
the Government moves for a departure below the statutory minimum.9
Congress did not charge the Commission with "implementing" §
3553(e)'s Government motion requirement, beyond adopting provisions
constraining the district court's discretion regarding the
particular sentence selected.
Although the various relevant Guidelines provisions invoked by
the parties could certainly be clearer, we also believe that the
Government's interpretation of the current provisions is the better
one. Section 5K1.1(a) may guide the district court when it selects
a sentence below the statutory minimum, as well as when it selects
a sentence below the Guidelines range.10 The Commission has not,
however, im-
9 Notably, §3553(e) states that the "sentence" shall be imposed
in accordance with the Guidelines and policy statements, not that
the "departure" shall occur, or shall be authorized, in accordance
with the Guidelines and policy statements.
10 Section § 5K1.1(a) may apply of its own force to sentences
below the statutory minimum, see
ibid. (providing that the
district court shall determine "[t]he appropriate reduction" by
applying a nonexhaustive list of factors), and both the reference
to § 3553(e) in § 5KU's Application Note 1 and the reference to
§5K1.1 in §2D1.1's Application Note 7 may reflect that fact. Or
perhaps the phrase "[t]he appropriate reduction" in § 5K1.1(a)
encompasses only departures below the Guidelines range, but
130
properly attempted to dispense with or modify the requirement
for a departure below the statutory minimum spelled out in §
3553(e)-that of a Government motion requesting or authorizing a
departure below the statutory minimum.
The Government has made no such motion here. Hence, the District
Court correctly concluded that it lacked the authority to sentence
petitioner to less than 10 years' imprisonment.
III
What is at stake in the long run is whether the Government can
make a motion authorizing the district court to depart below the
Guidelines range but withholding from the district court the power
to depart below the statutory minimum. Although the Government
contends correctly that the Commission does not have authority to
"deem" a Government motion that does not authorize a departure
below the statutory minimum to be one that does authorize such a
departure, the Government apparently reads § 994(n) to permit the
Commission to construct a unitary motion system
by
adjusting the requirements for a departure below the
Guidelines minimum-that is, by providing that the district
court may depart below the Guidelines range only when the
Government is willing to authorize the court to depart below the
statutory minimum, if the court finds that to be appropriate. See
Tr. of Oral Arg. 26-31.
We need not decide whether the Commission could create this
second type of unitary motion system, for two reasons. First, even
if the Commission had done so, that would not help petitioner,
since the Government has not authorized a departure below the
statutory minimum here. Second, we agree with the Government that
the Commission has not adopted this type of unitary motion system.
Neither the
the Application Notes are meant to suggest that the court should
also consider the § 5K1.1(a) factors in the analogous circumstance
of a departure below the statutory minimum.
131
text of § 5Kl.1 nor its commentary expressly limits the
authority of the court to depart below the Guidelines minimum to
situations in which the Government has moved to depart below the
statutory minimum. The text of § 5Kl.1 says:
"Upon motion of the government stating that the defendant has
provided substantial assistance ... , the court may depart from the
guidelines." We do not read this sentence to say: "Upon motion of
the government stating that the defendant has provided substantial
assistance ... and authorizing the court to depart below the
statutory minimum, if any, the court may depart from the
guidelines." Rather, we read it as permitting the district court to
depart below the Guidelines range when the Government states that
the defendant has provided substantial assistance and requests or
authorizes the district court to depart below the Guidelines range.
As we have noted,
supra, at 127-130, the Application Notes
to § 5Kl.1 and § 2Dl.1 do not compel any other reading.
The judgment is affirmed.
It is so ordered.
JUSTICE SOUTER, concurring.
I agree with the conclusion that 18 U. S. C. § 3553(e) requires
a motion by the Government asking the district court to impose a
sentence below the statutory minimum, but I part company with the
Court on the characterization of the policy statement numbered §
5Kl.1, United States Sentencing Commission, Guidelines Manual §
5Kl.1, p. s. (Nov. 1995) (USSG). The text of this policy statement
deals with departures from the Guidelines; the best reading of each
sentence is that its referent is a Guideline departure, and that
neither directly applies to reductions below mandatory minimums.
The Application Notes (which are "the legal equivalent of a policy
statement," USSG § 1Bl. 7) are where the Sentencing Commission has
dealt with sentences below statutory minimums. In my view, the
Sentencing Commission has discharged its responsibility under 28 U.
S. C. § 994(n) by its
132
Opinion of BREYER, J.
inclusion of the Application Notes, which effectively tell
district courts that the policy statement applies as well to
motions for reductions below mandatory minimums. Thus, my
disagreement is over the suggestion that the two sentences of §
5K1.1 can be treated separately. I would simply say that the
Application Notes indicate that § 5K1.1 applies to motions under §
3553(e), and leave it at that.
JUSTICE STEVENS, concurring in the judgment.
Petitioner has persuaded me that the Sentencing Commission
intended § 5K1.1 to create a unitary motion system under which any
request for a departure below the Guideline range based on
substantial assistance would also authorize a departure below the
statutory minimum. Such a system would be eminently reasonable,
but, for two reasons, I am convinced that Congress did not intend
to authorize it. First, I agree with the Court that the text of §
3553(e) does not authorize the court to impose a sentence below the
statutory minimum unless the Government has made a motion
requesting that relief. Second, notwithstanding my serious doubts
concerning the wisdom of a congressional decision to impose
statutory minimum sentences higher than those considered
appropriate by the Commission, the very fact that Congress has done
so indicates that it intended to confer the authority to dispense
with the statutory minima on the prosecutor rather than the
Commission.
Thus, I concur in the judgment because I agree with the Court's
interpretation of § 3553(e).
JUSTICE BREYER, with whom JUSTICE O'CONNOR joins, concurring in
part and dissenting in part.
I join Parts I and II of the Court's opinion, for, like the
Court, I believe the Commission does not have the power to modify
Congress' statutes. I disagree with Part III, however, because the
Commission does have the power to write its own Guidelines and, in
my view, the Commission has in
133
fact exercised that power to create what the Court calls a
"unitary motion system."
To understand that system, one must keep in mind two facts.
First, many "substantial assistance" departures involve departures
only from Guideline sentences, not from statutory mandatory minimum
sentences. When a defendant seeks a "substantial assistance"
departure from the minimum Guideline sentence for robbery, fraud,
money laundering, tax evasion, or most other offenses, the
defendant need not worry about a statutorily required minimum
sentence, for either no such minimum sentence applies, or that
sentence is so far below the minimum Guideline sentence that there
is no practical likelihood of a departure drastic enough to make it
relevant. The Guidelines govern departures from these Guideline
sentences, and they permit judges to depart downward for
"substantial assistance" only if the Government makes a "motion ...
stating that the defendant has provided substantial assistance in
the investigation or prosecution of another person who has
committed an offense." United States Sentencing Commission,
Guidelines Manual § 5K1.1, p. s. (Nov. 1995) (USSG). I call the
policy statement that sets forth this rule the "Substantial
Assistance Guideline."
Second, some criminal convictions implicate not only the
Guidelines, but also the special statutes (applicable particularly
to drug and weapon offenses) that set "mandatory minimum"
sentences. See United States Sentencing Commission, Mandatory
Minimum Penalties in the Federal Criminal Justice System, App. A,
pp. Ai-AS (Aug. 1991) (Mandatory Minimum Penalties). The law does
not normally permit a departure below such mandatory statutory
minimums. But cf. is U. S. C. § 3553(f) (limitation on
applicability of statutory minimums in certain cases); USSG § 5C1.2
(same). The law does permit such a departure, however, for one
special reason, namely, "substantial assistance," but only if the
Government makes a "motion ... so as to reflect a defendant's
134
Opinion of BREYER, J.
substantial assistance in the investigation or prosecution of
another person who has committed an offense." 18 U. S. C. §
3553(e). I shall call the statute that states this rule the
"Substantial Assistance Statute."
With these two basic facts in mind, one might ask what the
Commission means by the term "substantial assistance" in its
Substantial Assistance Guideline. In particular, do those words in
that Guideline mean the same thing that those same words mean in
the Substantial Assistance Statute? Or does the Commission intend
those words in its Guideline to create a tougher, or perhaps a more
lenient, standard where departures from Guideline minimums (rather
than departures from statutory minimums) are at issue?
The answer to this interpretive question, in my view, is that
the Commission means the term "substantial assistance" in its
Substantial Assistance Guideline to create the same standard that
the Substantial Assistance Statute creates using the same words. As
so interpreted, the Guideline authorizes a sentencing judge to
depart downward from a Guideline sentence for substantial
assistance only if the Government files the same kind of motion
that the Government would file to obtain a departure from a
statutory minimum sentence, were such a sentence at issue.
My reasons for believing that the Commission intended to tie its
Substantial Assistance Guideline to the Substantial Assistance
Statute (thereby recognizing one kind of "substantial assistance,"
not two) are the following: First, as I have said, the language the
Commission used to write its Substantial Assistance Guideline is
virtually identical to the language that appears in the Substantial
Assistance Statute. Compare USSG § 5K1.1, p. s., with 18 U. S. C. §
3553(e). Second, the Commission nowhere suggests that the key words
"substantial assistance" mean something different in the two places
(the Guideline and the Statute) where they appear, and I cannot
imagine any reason why the Commission would
135
have wanted to create different standards through the use of
identical words, thereby creating additional administrative
complexity and risking unnecessary confusion. Third, the
Commission's commentary refers to statutory and guideline
departures indiscriminately. USSG § 2D1.1, comment., n. 7 (citing
Substantial Assistance Guideline for proposition that statutory
minimum may be "waived"); see also Mandatory Minimum Penalties,
supra, at 59 (discussing unitary "substantial assistance
motions").
The Court's reason for reaching the contrary conclusion is that
the Commission did not specify that courts could not depart below a
minimum Guideline sentence without a Government motion for
departure below any applicable statutory minimum. That is, the
Substantial Assistance Guideline does not say: "Upon motion of the
government stating that the defendant has provided substantial
assistance ...
and authorizing the court to depart below the
statutory minimum, if any, the court may depart from the
guidelines."
Ante, at 131 (emphasis added; internal
quotation marks omitted). But it is not surprising that the
Commission neglected to add these words of crystal clarity to the
Substantial Assistance Guideline, since that Guideline governs many
cases that have nothing to do with mandatory minimum sentences. It
makes sense, instead, for the Commission to have noted the
interplay of "substantial assistance" and statutory minimums in its
commentary to the Substantial Assistance Guideline, see USSG §
5K1.1, p. s., comment., n. 1, and in its section on drug offenses,
for which statutory minimums are relatively common, see
id.,
§ 2D1.1, comment., n. 7.
I recognize that the Court, through its interpretation of the
Guideline, avoids having to decide "whether the Commission could
create this ... unitary motion system."
Ante, at 130. But
the legal question it avoids is not a difficult one. Congress
delegated to the Commission broad authority to determine when
sentencing courts may reward substantial assistance with a reduced
sentence. See 28 U. S. C. § 994(n).
136
Opinion of BREYER, J.
The Commission's exercise of delegated authority is normally
lawful as long as it is reasonable. See,
e. g.,
United States v.
Shabazz, 933 F.2d
1029, 1035 (CADC) (Thomas, J.) (citing
Chevron U. S.
A. Inc. v.
Natural Resources Defense Council, Inc.,
467 U. S. 837,
842-845 (1984)), cert. denied
sub nom. McNeil v.
United
States, 502 U. S. 964 (1991). And a unitary system seems
perfectly reasonable. Indeed, the Federal Rules of Criminal
Procedure recognize an identical "unitary" system for post judgment
substantial assistance motions. See Fed. Rule Crim. Proc. 35(b)
("[O]n motion of the Government made within one year after the
imposition of the sentence," court may reduce sentence "to reflect
a defendant's subsequent, substantial assistance"; this may include
reduction "to a level below that established by statute as a
minimum sentence"). Thus in my view, the Commission had the power
to create a "unitary motion system," and is free to maintain such a
system, or to change it, in light of evolving criminal justice
policies.
In this case, the lower courts accepted the Government's
"departure" motion as sufficient to justify a departure below the
135-month Guideline minimum applicable to petitioner's crime, but
not sufficient to justify a departure below the applicable 10-year
statutory minimum. On a "unitary" view, this disposition could not
be correct. Either the motion was sufficient to warrant a departure
below the statutory minimum, or it was insufficient to warrant a
departure below the Guideline minimum. I would remand this case to
the lower courts for further consideration of this case-specific
issue.
For these reasons, while agreeing with much of what the Court
has written, I dissent from its disposition.
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