217 F.3d 477 (7th Cir. 2000)
United States of America,    Plaintiff-Appellee,v.Brian K. McMutuary and Dante A. Grier,    Defendants-Appellants.
Nos. 98-1150 & 98-1151
In the  United States Court of Appeals  For the Seventh Circuit
Argued January 11, 1999Decided  on ResubmissionJune 21, 2000***

Appeals from the United States District Court  for the Northern District of Illinois, Eastern Division.  No. 97 CR 25--Elaine E. Bucklo, Judge. [Copyrighted Material Omitted]
Before Fairchild, Manion and Kanne, Circuit Judges.
Kanne, Circuit Judge.


1
Brian McMutuary, Dante  Grier and Steven Brown participated in the armed  robbery of Southwest Financial Bank in Chicago.  A superseding indictment charged each with  conspiracy to commit armed bank robbery, armed  bank robbery and use of a firearm in connection  with a crime of violence. McMutuary also was  charged with one count of perjury. Brown entered  a plea of guilty on all counts of the original  indictment (which contained the same charges with  respect to Brown as the superseding indictment)  pursuant to a written plea agreement in which he  agreed to provide assistance to the government.  In considering Brown's sentence, the district  court departed downward because of the  substantial assistance provided to the government  by Brown and because of his family circumstances  and sentenced Brown to a period of one year home  confinement followed by a period of probation.  After Brown pleaded guilty, a jury convicted  McMutuary and Grier on all counts of the  superseding indictment. The district court  sentenced McMutuary to 195 months in prison and  Grier to 138 months in prison.


2
On appeal, Grier argues that the district court  erred by denying his motion to dismiss the  indictment for prejudicial pre-indictment delay.  McMutuary and Grier assert that the district  court erred in refusing to consider a downward  departure from their sentencing ranges based on  a perceived unjustified disparity between their  sentences and the sentence imposed on Brown. We  reject Grier's argument regarding the pre-  indictment delay, and although we agree that an  unjustified disparity existed between the  sentence imposed on Brown and the sentences  imposed on McMutuary and Grier, we find no error  in the district court's refusal to consider this  disparity in the computation of McMutuary's and  Grier's sentences. Accordingly, we affirm the  decisions of the district court.

I.  History

3
On February 18, 1992, Brown entered Southwest  Financial Bank, where McMutuary worked as a coin  and currency teller,and presented a note to the  bank's vault custodian demanding to be shown the  location of the bank's safe deposit boxes. To  ensure the bank took his demand seriously, Brown  showed the custodian a handgun, which he had  placed in the waistband of his pants. The  custodian led Brown to the vault where McMutuary  was waiting. Brown then pulled the gun from his  waistband and instructed the custodian and  McMutuary to fill a duffle bag with money. Once  the bag was filled with money, Brown told  McMutuary to bind the custodian with tape. To  make it appear that McMutuary was not involved in  the robbery, Brown did the same to McMutuary  before exiting the bank.


4
Events before and after the robbery clearly  established that McMutuary, Grier and Brown acted  in concert in robbing the bank. On the day before  the robbery, Grier approached Brown and inquired  about his interest in participating in a bank  robbery. Grier explained that he and McMutuary  intended to rob the bank where McMutuary worked,  and McMutuary's participation in the scheme would  facilitate the robbery. Grier would simply enter  the bank, and McMutuary would fill his bag with  money. Based on Grier's assurances regarding the  manner in which the plan would be carried out,  Brown agreed to participate in the robbery by  acting as the getaway driver.


5
On the day of the robbery, Brown and Grier  parked McMutuary's car across the street from the  bank and waited for McMutuary to contact them.  After receiving two pages on his beeper from  McMutuary, Grier entered the bank. He quickly  returned, informing Brown that a security guard  deterred him from following through with the  plan. A few minutes later, Brown entered the bank  and once he was satisfied that the security guard  was not at his post, presented a demand note to  the vault custodian. Brown left the bank upon  completion of the robbery and placed the money in  the trunk of McMutuary's car, and Grier and Brown  drove off. Two days later, McMutuary, Brown and  Grier met at a nearby hotel and split the money.


6
During the investigation conducted by the  Federal Bureau of Investigation, local  authorities and a federal grand jury, McMutuary  and Grier told conflicting stories regarding  their involvement in the robbery. Eventually, the  two recanted portions of their stories. Based in  part on the testimony of McMutuary and Grier and  their interviews with authorities, a federal  grand jury returned an indictment charging  McMutuary and Brown with conspiracy to commit  armed bank robbery in violation of 18 U.S.C. sec.  371, armed bank robbery in violation of 18 U.S.C.  sec. 2113(a) and (d) and use of a firearm in  connection with a crime of violence in violation  of 18 U.S.C. sec. 924(c). Additionally, McMutuary  was indicted on a single charge of perjury. A  superseding indictment was subsequently returned  by the grand jury charging McMutuary and Brown  with the same crimes and also charging Grier with  conspiracy to commit armed robbery, armed robbery  and use of a firearm in connection with a crime  of violence.


7
Brown entered a plea of guilty on all counts of  the original indictment pursuant to a written  plea agreement in which he agreed to cooperate  with the government. McMutuary and Grier  proceeded to trial after the district court  denied Grier's motion to dismiss the indictment  based on a claim of prejudicial pre-indictment  delay. The jury convicted both McMutuary and  Grier on all counts.


8
A straightforward application of the United  States Sentencing Guidelines to Brown's  conviction placed Brown in a sentencing range of  117 to 131 months--57 to 71 months for the  robbery and conspiracy charges, combined with a  consecutive 60-month minimum mandatory sentence  for the violation of sec. 924(c). In exchange for  Brown's cooperation, the government specified in  the plea agreement that at the time of Brown's  sentencing, it would file a motion pursuant to  U.S.S.G. sec. 5K1.1, requesting a downward  departure from the applicable Guidelines range  and the statutory minimum sentence to a term of  imprisonment one-third lower than the combined  term required by the Guidelines for the  conspiracy and armed robbery charges and the  additional term required by his plea of guilty to  the sec. 924(c) charge.


9
Brown moved for an additional downward departure  based on extraordinary family circumstances. At  his sentencing hearing, members of Brown's family  testified in support of his claim that he was  needed at home to care for his elderly and ill  parents and his eleven-year-old niece. Although  the government opposed Brown's motion, the  government nevertheless moved for the downward  departure as agreed in Brown's plea agreement.  Upon consideration of the motions made by both  Brown and the government, the district court  departed downward fourteen offense levels and  sentenced Brown to twelve months home detention  followed by a period of probation. In imposing  that sentence, the court cited both Brown's  cooperation with the government and his family  circumstances as grounds for the departure, but  did not specifically assign either ground to any  aspect of the departure.


10
Prior to sentencing, McMutuary and Grier moved  for downward departures based on a perceived  disparity between Brown's sentence and the  sentences called for under their own Guidelines  ranges. The district court denied this motion,  reasoning that "the only way [the court] could  grant your motion . . . would be to say that I  granted an improper departure [with respect to  Brown], and I do not believe that I did."  Although the court rejected McMutuary's and  Grier's requests for downward departures, the  district court sentenced them to the lowest  sentences available under the Guidelines for the  conspiracy and armed robbery offenses combined  with the required consecutive sixty-month  sentence for the violation of sec. 924(c). The  district court sentenced Grier to a term of 138  months in prison. Because of an enhancement for  his perjury conviction, McMutuary received a term  of imprisonment of 195 months. Grier now appeals  the denial of the motion to dismiss the  indictment based on prejudicial pre-indictment  delay, and McMutuary and Grier both appeal the  sentences imposed on them by the district court.

II.  Analysis
A.  Pre-indictment Delay

11
Grier was first named as a defendant in the  superseding indictment returned by the grand jury  on February 11, 1997--nearly five years after the  robbery. Grier claims that the government's delay  in prosecuting him caused him actual and  substantial prejudice by severely hampering his  ability to defend himself against the charges  contained in the superseding indictment. Grier's  claim of actual and substantial prejudice is  predicated upon his assertion that he was unable  to present the testimony of a material witness  who died during the period of the government's  delay. Furthermore, Grier submits that the  prejudice he suffered was not outweighed by the  government's proffered justification for its  delay. Accordingly, Grier contends that the  district court erred in denying his motion to  dismiss the indictment based on pre-indictment  delay. We review a district court's decision to  deny a motion to dismiss an indictment for  prosecutorial delay for an abuse of discretion.  See United States v. Spears, 159 F.3d 1081, 1084  (7th Cir. 1998); United States v. Pardue, 134  F.3d 1316, 1319 (7th Cir. 1998).


12
A defendant's primary safeguard against  unreasonable prosecutorial delay is derived from  the applicable statute of limitations. See  Pardue, 134 F.3d at 1319. However, "we have also  noted that the Fifth Amendment's due process  clause plays a limited role in assuring that the  government does not subject a defendant to  oppressive delay." Spears, 159 F.3d at 1084. To  establish that a pre-indictment delay violated  the Due Process Clause, a defendant first must  demonstrate that the delay caused actual and  substantial prejudice to his right to a fair  trial. See United States v. Sowa, 34 F.3d 447,  450 (7th Cir. 1994). A defendant's burden to show  actual and substantial prejudice is an exacting  one; the showing must rest upon more than mere  speculative harm. See United States v. Canoy, 38  F.3d 893, 902 (7th Cir. 1994). The defendant's  allegations of actual and substantial prejudice  must be "specific, concrete, and supported by  evidence." Sowa, 34 F.3d at 450 (quoting Pharm v.  Hatcher, 984 F.2d 783, 787 (7th Cir. 1993)); see  also United States v. Koller, 956 F.2d 1408, 1415  (7th Cir. 1992). If the defendant succeeds in  showing prejudice, the burden shifts to the  government "[to] show that the purpose of the  delay was not to gain a tactical advantage over  the defendant or for some other impermissible  reason." Spears, 159 F.3d at 1084-85; see also  Sowa, 34 F.3d at 451.


13
As stated, Grier's claim of actual and  substantial prejudice is related entirely to his  inability to call a single witness at trial.  Grier contends that the testimony of his aunt,  Margaret Blackman, was critical to his defense,  but that he was unable to present this testimony  because she died prior to the return of Grier's  indictment by the grand jury. According to the  affidavit of Blackman's daughter, Cassandra  Blackman, had Margaret Blackman been called to  testify at trial, she would have testified that  she lived with Grier and that he did not leave  their residence on the day of the robbery.  Therefore, this testimony would have provided  Grier with an alibi defense.


14
Although the loss of a vital defense witness  may satisfy a defendant's burden to demonstrate  prejudice, we do not conclude that Grier suffered  actual and substantial prejudice as a result of  his inability to call Margaret Blackman as a  witness in the present case. In light of other  testimony offered at trial on Grier's behalf, it  would be difficult to characterize Margaret  Blackman as a "vital defense witness." Her  testimony would have been largely cumulative of  the testimony offered by Cassandra Blackman, who  testified that she, like Margaret Blackman, lived  with Grier and that he was at home during the  entire day of the robbery. The testimony of  Margaret Blackman would have simply corroborated  the alibi defense ultimately offered by Cassandra  Blackman. As we have stated, "the absence of  cumulative testimony cannot, as a matter of law,  result in actual prejudice." Spears, 159 F.3d at  1085-86 (quoting United States v. Comosona, 848  F.2d 1110, 1114 (10th Cir. 1988)). To the extent  that the jury may have viewed Cassandra  Blackman's testimony as biased or unworthy of  credence because she was a member of Grier's  family, Margaret Blackman's testimony would have  done little to cure these perceptions.  Accordingly, Grier failed to demonstrate that he  suffered actual and substantial prejudice as a  result of the pre-indictment delay.


15
We recognize in passing that even if we were to  conclude that Grier suffered actual and  substantial prejudice, the government offered a  credible explanation for the delayed filing of  the indictment that would not be outweighed by  the prejudice claimed by Grier. The government  informed the district court that the timing of  the indictment was designed to permit the pursuit  of evidence that would corroborate the  information provided to the government by Brown  after he implicated his co-defendants. The  government explained that it was necessary to  obtain and analyze bank records, hotel records,  credit histories and employment histories, among  other evidence. The timing of the indictment was  further necessitated to provide the government  with an opportunity to pursue evidence of the  defendants' use of the proceeds of the robbery.  Finally, it is also worth noting that there has  been no showing that the explanation offered by  the government was pretextual. Grier has pointed  to no evidence suggesting that the government  even knew of Margaret Blackman's existence or her  health condition. The cause of the delay can only  be characterized as investigatory in nature, and  in such cases, we will not find a due process  violation. See Sowa, 34 F.3d at 451.

B.  Sentencing Disparities

16
McMutuary and Grier claim that the district  court erred in refusing to consider the disparity  between Brown's sentence and their own sentences  as a basis to depart downward from the range  imposed by the Guidelines. They contend that the  disparity between the sentence imposed on Brown  and their own sentences cannot be justified under  a proper application of the Guidelines. For this  reason, the district court should have considered  this unjustified disparity in deciding whether to  depart from the applicable Guidelines range in  imposing their sentences.


17
We review decisions regarding departures from  the Guidelines for abuse of discretion. See  United States v. Gonzalez-Portillo, 121 F.3d  1122, 1123 (7th Cir. 1997). This standard applies  "to both factual determinations and . . . 'review  to determine that the discretion was not guided  by erroneous legal conclusions.'" Id. at 1124  (quoting Koon v. United States, 518 U.S. 81, 100  (1996)). In applying this standard, we recall  that "whether a factor is a permissible basis for  departure under any circumstances is a question  of law, and the court of appeals need not defer  to the district court's resolution of the point"  because "[a] district court by definition abuses  its discretion when it makes an error of law."  Koon, 518 U.S. at 100.

1.  Koon and Meza

18
Because defendants' arguments are based on an  understanding of the Supreme Court's holding in  Koon, and our own holding in United States v.  Meza, 127 F.3d 545, 550 (7th Cir. 1996), we must  first review these decisions. In promulgating the  Sentencing Guidelines, the Sentencing Commission  intended "the sentencing courts to treat each  guideline as carving out a 'heartland,' a set of  typical cases embodying the conduct that each  guideline describes." Koon, 518 U.S. at 93  (quoting U.S.S.G. ch. 1, pt. A, intro. cmt. 4(b)  (1995)). While a court generally must impose a  sentence within the applicable Guidelines range,  the Sentencing Commission realized that certain  cases that for one reason or another were  'unusual' would fall outside the heartland. In  such atypical cases, the sentencing court must  consider whether particular factors warrant a  departure from the applicable Guidelines range.  See id. at 94 ("Atypical cases were not  'adequately taken into consideration,' and  factors that may make a case atypical provide  potential bases for departure."). Therefore,  "before a district court is permitted to depart  in a given case, certain features of the case  must be found 'unusual' enough for it to fall  outside the 'heartland' of cases covered in the  applicable guideline." United States v. Leahy,  169 F.3d 433, 440 (7th Cir. 1999).


19
However, the Guidelines do not leave the  determination of whether a factor merits a  departure from the heartland entirely to the  discretion of the district court. Instead, the  Sentencing Commission has delineated four  categories of sentencing factors to determine  whether a case is atypical: forbidden,  encouraged, discouraged and unmentioned. Among  these categories, only "forbidden" factors may  never provide a basis for departure from a  sentencing range. These factors include race,  sex, national origin, creed, religion,  socioeconomic status, physical conditions, such  as drug or alcohol dependence, and economic  hardship. See U.S.S.G. sec.sec. 5H1.10, 5H1.4,  5K2.12. District courts are otherwise free to  depart if "the court finds that there exists an  aggravating or mitigating circumstance of a kind,  or to a degree, not adequately taken into  consideration by the sentencing commission in  formulating the guidelines that should result in  a sentence different from that described." 18  U.S.C. sec. 3553(b).


20
In Koon, the Supreme Court recognized that a  sentencing court must make two inquiries in  determining whether a specific factor can be an  appropriate basis for departure. 518 U.S. at 109.  The court must first determine "whether the  [Sentencing] Commission has proscribed, as a  categorical matter, consideration of the factor."  Id. If the Commission has not determined that the  factor is prohibited, "the sentencing court must  determine whether the factor, as occurring in the  particular circumstances, takes the case outside  the heartland of the applicable Guideline." Id.  The Supreme Court held that "for the courts to  conclude that a [non-prohibited] factor must not  be considered under any circumstances would be to  transgress the policymaking authority vested in  the Commission." Id. at 106-07, 116 S.Ct.2035.


21
In Meza, we considered whether, in light of  Koon, a district court could rely on a disparity  between sentences of co-conspirators in order to  justify a departure from a Guidelines range not  subject to a statutory minimum. 127 F.3d at 549-  550. At the time of sentencing, the defendant in  Meza moved for a downward departure based on a  perceived disparity between the sentence called  for under the Guidelines in his case and the  sentences previously imposed on his co-  conspirators. These co-conspirators had received  downward departures pursuant to U.S.S.G. sec.  5K1.1 for cooperating with the government.  Although the defendant refused to cooperate with  the government, he still believed that a  departure was warranted in his case. The  defendant argued that Koon required the district  court to consider the sentencing disparity as a  potential basis for departure because the  Sentencing Commission, as a categorical matter,  has not proscribed any consideration of  sentencing disparities. See Meza, 127 F.3d at  548.


22
Although we denied the defendant's appeal, we  declined to hold that a sentencing court should  never consider the disparity between sentences of  co-defendants as a basis for departure from the  applicable Guidelines range because of the  prohibition against across-the-board rejection of  a factor recognized by the sentencing court in  Koon, 518 U.S. at 106-07, and the directive that  the sentencing court should consider "the need to  avoid unwarranted sentence disparities among  defendants with similar records who have been  found guilty of similar conduct." 18 U.S.C. sec.  3553(a)(6). See also Meza, 127 F.3d at 549-50.  Instead, we bifurcated our analysis between  "justified" and "unjustified" sentencing  disparities. We described a justified disparity  as one reslting from a proper application of the  Guidelines to the particular circumstances of a  case.1 It is clear that the Sentencing  Commission adequately considered justified  disparities between the sentences "as it is the  Guidelines that produce the disparity," Meza, 127  F.3d at 550, and a factor may only be considered  as a basis for departure if it has not been  adequately taken into consideration by the  Sentencing Commission in formulating the  Guidelines. See 18 U.S.C. sec. 3553(b).  Therefore, we concluded that a justified  disparity could never serve as a basis for a  departure from the Guidelines sentencing range.  See Meza, 127 F.3d at 550. Because we concluded  that the sentencing disparity that existed  between co-conspirators in Meza was justified, we  affirmed the decision of the district court not  to consider it as a basis for departure. See id.


23
Although unnecessary to the holding of the  case, we also considered the applicability of  considering an unjustified disparity, which we  defined as "one that does not result from a  proper application of the Guidelines. In other  words, it is a disparity in sentences that cannot  be explained by a comparison of each defendant  against the Guidelines as a set of rules." Meza,  127 F.3d at 550. Because we found no evidence  that the Sentencing Commission considered the  possibility of unjustified departures in  formulating the Guidelines, we concluded that an  unjustified disparity could potentially serve as  a factor to consider in determining whether to  depart from the applicable Guidelines range. See  id.

2.  Justification for Disparity

24
McMutuary and Grier contend that the sentencing  disparity of which they complain arose from the  district court's decision to sentence their co-  conspirator Brown to a twelve-month period of  home detention and probation, while they received  sentences within the applicable Guidelines range.  McMutuary and Grier claim that Brown's sentence  did not result from a proper application of the  Guidelines. As such the disparity between the  sentences of the co-defendants is unjustified,  and they contend that the sentencing court should  have considered this unjustified disparity in  determining whether to depart from the applicable  Guidelines range. We turn first to an examination  of Brown's sentence.


25
a.  Facts


26
Brown pleaded guilty to the same charges for  which McMutuary and Grier were convicted:  conspiracy to commit bank robbery in violation of  18 U.S.C. sec. 371; armed bank robbery in  violation of 18 U.S.C. sec. 2113(a) and (d); and  use of a firearm in relation to a crime of  violence in violation of 18 U.S.C. sec. 924(c).  The district court concluded that Brown's plea of  guilty to these charges resulted in a total  offense level of twenty-four and a criminal  history category of II under the Guidelines. This  calculation resulted in a sentencing range of  fifty-seven to seventy-one months, with an  additional consecutive sixty-month sentence  imposed on Brown as a result of the violation of  sec. 924(c).2


27
As a result of Brown's cooperation with the  government, the government included a paragraph  in Brown's plea agreement providing that at the  time of Brown's sentencing, the government would  move the court pursuant to U.S.S.G. sec. 5K1.1  "to depart from the applicable Guidelines range  and the statutory minimum sentence, and to impose  a sentence of imprisonment . . . of 66% of the  low end of the combined sentencing range that  results from the aggregation of the five-year  mandatory minimum prison term for carrying and  using a firearm during and in relation to a crime  of violence with the low end of the applicable  guideline range for the remaining offenses."  Prior to sentencing, Brown also moved for a  downward departure based on extraordinary family  circumstances, and at his sentencing, he  presented testimony of family members in support  of his claim that he was needed at home to care  for his parents and his eleven year-old niece.  The government opposed this motion, but at  sentencing moved pursuant to the plea agreement  for departure under U.S.S.G. sec. 5K1.1.


28
After considering both the government's and  Brown's motions, the district court departed  downward to an offense level of ten and sentenced  Brown to a period of twelve months of home  detention and probation. In imposing that  sentence, the court cited both Brown's  cooperation and his family circumstances, but  failed to assign either ground to any particular  aspect of its departure. In sentencing Brown, the  district court departed below both the applicable  Guidelines range and the statutory minimum  mandatory five-year sentence required by the  count charging Brown with violating sec. 924(c).  While a court may impose a sentence below a  defendant's Guidelines range based on a  substantial assistance motion, imposition of a  sentence below a statutory minimum (such as the  one required by sec. 924(c)) requires a motion by  the government pursuant to 18 U.S.C. sec.  3553(e).3 In this case, sec. 3553(e) provides  for only one basis for departure below a  statutory minimum mandatory--upon motion by the  government for substantial assistance provided by  the defendant. See United States v. DeMaio, 28  F.3d 588, 591 (7th Cir. 1994) ("[T]he district  court may only depart below a statutory mandatory  minimum sentence to reflect a defendant's  substantial assistance to the authorities.");  United States v. Thomas, 11 F.3d 732, 736-37 (7th  Cir. 1993) (stating that departures from minimum  mandatory sentences allowed only for assistance  to the government). Absent a sec. 3553(e) motion  by the government, the sentencing court may not  depart below the statutory minimum mandatory  except in limited circumstances not relevant to  this case.


29
b.  Analysis


30
McMutuary and Grier contend that the district  court's decision to depart below the statutory  mandatory minimum sentence resulted from an  improper reliance on Brown's family  circumstances. They assert that the government  did not move pursuant to sec. 3553(e) for a  departure below the statutory mandatory minimum  required by the sec. 924(c) count, and,  therefore, the district court must have  necessarily relied on Brown's family  circumstances. Although the government submits  that it moved pursuant to sec. 3553(e) for a  departure below the mandatory minimum, the  government concedes that "it seems impossible to  say that the district court did not incorrectly  base its decision to depart below the five-year  minimum, at least in part, on Brown's family  circumstances." The defendants believe the  erroneous nature of Brown's sentence resulted in  a sentencing disparity that cannot be justified  by a proper application of the Guidelines.  Therefore, they argue that the district court  should have considered this disparity when  examining their motions for a downward departure.


31
The government's contention that it moved  pursuant to sec. 3553(e) for a downward departure  below the statutory mandatory minimum with  respect to Brown's sentence is, at the very  least, disingenuous. While an explicit reference  to sec. 3553(e) is not necessarily required  before a sentencing court may depart below a  statutory minimum, "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." Melendez v. United States, 518  U.S. 120, 126 n.5 (1996).


32
The government bases its argument that it  communicated its consent to a departure below the  statutory mandatory minimum on certain language  in the plea agreement. A paragraph in the plea  agreement specified that at the time of Brown's  sentencing the government would request that the  district court depart downward pursuant to  U.S.S.G. sec. 5K1.1 "from the applicable  sentencing guidelines range and the statutory  minimum sentence."


33
However, when the language of the plea  agreement is juxtaposed with other language in  the plea agreement and the government's oral  motion for departure made at the time of Brown's  sentencing, it is clear that the government did  not desire or consent to a departure below the  statutory mandatory minimum. The terms of the  plea agreement stated that the government would  request that the district court reduce by one-  third the combined sentencing range that resulted  from the aggregation of the five year mandatory  prison term for the sec. 924(c) violation with  the applicable Guidelines range for the remaining  offenses. The request for a one-third departure  was reiterated at Brown's sentencing hearing.  However, no mention was made of a departure below  the statutory mandatory minimum. At best, Brown  could have received a sentence of seventy-eight  months pursuant to the terms of the plea  agreement. We recognize that the district court  would not have been bound by the government's  request for a one-third reduction.


34
Nevertheless, our examination of the agreement  and the government's motion at Brown's sentencing  hearing belies any suggestion that the government  desired or consented to a departure below the  statutory mandatory minimum. It necessarily  follows that the district court was without 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." Melendez, 518  U.S. at 126. The fact that the government passed  up the opportunity to appeal the error in Brown's  sentence has no impact on this conclusion.


35
It is clear then that the district court erred  in departing below the statutory mandatory  minimum of five years imprisonment when it  imposed a sentence of probation and home  confinement upon Brown. Because Brown would not  have received this sentence in the absence of the  district court's error, the error contributed, at  least in part, to the disparity in the sentences  imposed. This disparity is not "the result of a  proper application of the Guidelines to the  particular circumstances of [this] case." Meza,  127 F.3d at 550.4 Rather, it is the result of  the district court's error in departing below the  statutory mandatory minimum when sentencing  Brown. For this reason, the disparity in the  present case can only be described as unjustified  disparity between the sentences of co-  conspirators. McMutuary and Grier rely on this  error to contend that the sentencing court should  have considered the disparity between their  sentences and Brown's sentence in determining  their sentences.

3.  Applicability of Meza

36
We now are confronted with an issue that was  anticipated in Meza: whether the district court  must consider an unjustified disparity in the  sentencing of co-defendants as a factor in  determining whether to grant a downward  departure. In Meza, we noted that in the case of  an unjustified disparity, the sentencing court  should consider the disparity to determine  whether a defendant merits a departure downward  "so that the federal courts may provide 'the  even-handedness and neutrality that are the  distinguishing marks of any principled system of  justice.'" 127 F.3d at 550 (quoting Koon, 518  U.S. at 113). While we acknowledge that "[t]he  goal of the Sentencing Guidelines is, of course,  to reduce unjustified disparities," Koon, 518  U.S. at 113, we believe that the interpretation  of the term "unjustified disparity," provided as  dicta in Meza, which would require the sentencing  court to consider all unjustified sentencing  disparities between co-defendants as a basis to  depart from the applicable Guidelines range,  focuses too narrowly on comparison of sentences  of participants in one offense, rather than on  comparison of sentences of all persons convicted  of the same offense, nationwide.


37
As we noted in Meza, the determination of  whether to consider a factor as a permissible  basis for departure depends on whether the  Commission has adequately taken it into  consideration in its construction of each  Guideline's heartland. See Meza, 127 F.3d at 550.  By the creation of a heartland, the Commission  intended that each federal sentence for the same  federal crime be judged under the same standard.  See 28 U.S.C. sec. 991(b) ("The purposes of the  United States Sentencing Commission are to . . .  provide certainty and fairness in meeting the  purposes of sentencing, avoiding unwarranted  sentencing disparities among defendants with  similar records who have been found guilty of  similar criminal conduct . . ."). In furtherance  of this purpose, the Sentencing Commission  promulgated Guidelines sec. 1B1.4, which limits  the information that may be considered in  imposing a sentence to "any information  concerning the background, character and conduct  of the defendant." U.S.S.G. sec. 1B1.4. The  sentences imposed on others who have been  convicted of similar criminal conduct do not  constitute information about the background,  character or conduct of a particular defendant.  Rather, the Guidelines by their nature anticipate  the range of sentences of others found guilty of  similar criminal conduct, suggesting that, by  promulgating them, the Commission expressly  considered the degree to which sentencing courts  may consider the sentences given to others.  Therefore, a plain language interpretation of  sec. 1B1.4 would seem to expressly preclude  sentencing courts from considering the sentences  imposed on others as a basis to be used for  imposing a sentence.


38
However, sec. 1B1.4 may also be construed as a  grant of authority to consider the character and  conduct of the defendant beyond those acts for  which the defendant was convicted, and at least  one other court has found that this guideline was  not intended as "a limitation on the court's  power to consider other factors if appropriate."  United States v. Newby, 11 F.3d 1143, 1149 (3d  Cir. 1993). This expansive interpretation of sec.  1B1.4 corresponds more directly to the statutory  requirement of sec. 3553(a)(6), which directs  courts to consider "the need to avoid unwarranted  sentence disparities among defendants with  similar records who have been found guilty of  similar conduct." 18 U.S.C. sec. 3553(a)(6). On  this basis, courts occasionally have included  sentencing disparity between co-defendants among  the factors to be considered in departing from  the heartland of the Guidelines' sentencing  range. See United States v. Daas, 198 F.3d 1167,  1180-81 (9th Cir. 1999); Meza, 127 F.3d at 550;  United States v. Nelson, 918 F.2d 1268 (6th Cir.  1990). The inclusion of sentencing disparity  between co-defendants as a factor in the  determination of whether to depart seemingly  accords with Koon's directive that courts of  appeals not render impermissible a factor not  contemplated by the Sentencing Commission. See  Koon, 518 U.S. at 106-107.


39
Despite Koon, most other courts have concluded  that sentencing disparities between co-defendants  should never constitute a permissible basis for  departure from the Guidelines' sentencing range.  See, e.g., United States v. McKnight, 186 F.3d  867, 869 (8th Cir. 1999) (citing United States v.  Polanco, 53 F.3d 893, 897 (8th Cir. 1995));  United States v. Contreras, 180 F.3d 1204, 1209-  10 (10th Cir. 1999); United States v. Lawrence,  179 F.3d 343, 351 (5th Cir. 1999); United States  v. Gallegos, 129 F.3d at 1143-44; United States  v. Perkins, 108 F.3d 512, 515 (4th Cir. 1997).  Those courts rejecting the permissibility of  using co-defendants' sentences as a factor to  depart distinguish their decisions from the  appellate court conduct prohibited by Koon, 518  U.S. at 107, by claiming that the rejection of  this factor acted to clarify the types of  sentencing disparities that courts must consider  under sec. 3553(a)(6). See Gallegos, 129 F.3d at  1143. In Gallegos, the court explained that the  promulgation of the Guidelines was an attempt by  the Sentencing Commission to "eliminate  unwarranted disparities [in sentencing]  nationwide," 129 F.3d at 1143 (quoting United  States v. Garza, 1 F.3d 1098, 1100 (10th Cir.  1993)), rather than to eliminate disparity  between co-defendants. As such, the disparity  between co-defendants' sentences was an implicit  consideration of the Sentencing Commission.


40
For this reason, rather than curing the problem  of nationwide sentencing disparity, consideration  of the sentences given to co-defendants "creates  a new and entirely unwarranted disparity between  the defendant's sentence and that of all  similarly situated defendants throughout the  country." Joyner, 924 at 460-61. In addition, in  Gallegos, the court noted the practical  consideration that allowing consideration of  sentencing disparities among co-defendants as a  basis for departure might discourage the  government from offering plea bargains in cases  involving multiple defendants, see United States  v. Garrett, 179 F.3d 1143, 1145 (9th Cir. 1999),  a scenario that we would find troubling, although  we find this scenario inherently improbable


41
In Meza, we held that justified disparities,  which include all disparities which arise from a  proper application of the Sentencing Guidelines,  should never be considered as permissible bases  for departure. 127 F.3d at 549. However, we  indicated that any unjustified disparity in  sentences between co-conspirators was  "potentially a sentencing factor to consider" as  a basis for departure from the sentencing range.  Id. at 550.


42
In light of the promulgation of Guidelines with  the intent to create uniformity of sentencing  nationwide for all similarly situated defendants,  we believe that the Sentencing Commission  implicitly considered the potential for disparity  of sentences, whether justified or unjustified,  between co-defendants in its creation of an  applicable sentencing range. As such, we conclude  that disparities between the sentences of co-  defendants ordinarily should not be considered as  a factor in the decision to depart from the  Guidelines. Because district courts must only  consider factors that have not been considered by  the Sentencing Commission, see 28 U.S.C. sec.  3553(b), our holding that the naked existence of  an unjustified disparity between the sentences of  co-conspirators should not be considered as a  basis for departure from the applicable  sentencing range of the Guidelines does not  conflict with the proscription in Koon that the  appellate courts not create new classes of  impermissible grounds for departure. As such, we  believe that the sentencing court should consider  only an "unjustified disparity" in the sentencing  of co-defendants when the sentence imposed on the  appellant co-defendant is "unjustified" in length  in comparison to the sentences imposed on all  other individuals appropriately sentenced under  the Guidelines for similar criminal conduct.


43
On this basis, we correct the dicta in Meza  that suggests that an unjustified disparity in  co-conspirators' sentences should be considered  as a factor in the decision to depart from the  Guidelines. Instead, the sentencing court should  consider unjustified disparities in only those  cases where the unjustified disparity between co-  defendants actually creates a disparity between  the length of the appellant's sentence and all  other similar sentences imposed nationwide. We  refrain from holding, however, that unjustified  disparities may never be considered as bases for  departure. In certain circumstances, such as when  an unjustified disparity is created by the abuse  of prosecutorial discretion, but see United  States v. Krilich, 159 F.3d 1020, 1031 (7th Cir.  1998) (holding that proper exercise of  prosecutorial discretion does not create  impermissible disparity), the sentencing court  may consider the disparity as a factor in the  determination whether to depart from the sentence  of a co-defendant. In addition, a sentencing  court abuses its discretion by deciding to depart  from the applicable sentencing range for the  sentence of any defendant, whenever such  departure creates an unjustified disparity  between the sentence of that defendant and the  sentences of all other similarly situated  individuals nationwide.


44
Neither McMutuary nor Grier contend that the  district court erred in the computation of their  sentences, nor did the district court depart from  the applicable Guidelines range in their  sentences. Absent a claim that the court should  have considered the unjustified disparity created  by the improper sentence the court granted Brown,  neither party could even appeal the court's  failure to consider a downward departure. See  United States v. Mattison, 153 F.3d 406, 413 (7th  Cir. 1998). Both McMutuary and Grier were  sentenced to a term of imprisonment consistent  with all other defendants convicted of similar  criminal conduct, and neither party has presented  any evidence that would suggest that a disparity  exists between their sentences and the sentences  of all other similarly situated defendants  nationwide. For this reason, even though there  was an unjustified sentence disparity relative to  their co-defendant Brown, there was no  unjustified or unwarranted disparity in these  appellants' sentences, as those terms are used in  Koon or in sec. 3553(a)(6). Were we to credit the  appellants' arguments and reduce their sentences  accordingly, this court would be creating the  type of unjustified disparity between their  sentences and the sentences of all other  similarly situated defendants that the Guidelines  were promulgated to avoid. We cannot abide by  such a rule, which would allow three wrongs to  equal one right. McMutuary and Grier fail to  present an argument that the sentences imposed on  them are illegally long, and we affirm the  imposition of their sentences.

III.  Conclusion

45
For the reasons stated herein, we Affirm both the  district court's rejection of Grier's motion to  dismiss for pre-indictment delay and the  sentences imposed on Grier and McMutuary by the  district court.



Notes:


*
 This court originally affirmed in part and  reversed in part the decisions of the district  court in United States v. McMutuary, 176 F.3d 959  (7th Cir. 1999). However, we subsequently granted  the government's petition for rehearing and  vacated our original opinion. See United States  v. McMutuary, 200 F.3d 499 (7th Cir. 1999). We  have issued this opinion without additional oral  argument.


**
Because we now correct certain statements in  United States v. Meza, 127 F.3d 545 (7th Cir.  1998), this opinion has been circulated among all  judges of this court pursuant to Circuit Rule  40(e). No judge favored a rehearing en banc.


1
 In Meza, we identified several examples of how a  proper application of the Guidelines could create  a sentencing disparity. 127 F.3d at 549-50. It is  clear from the examples set forth in Meza that  the Commission contemplated that certain  disparities in sentencing between co-defendants  or co-conspirators could result from a proper  application from the Guidelines. Therefore,  justified disparities may never serve as a basis  for departure. See also United States v.  Gallegos, 129 F.3d 1140, 1144 (10th Cir. 1997)  ("[A] departure based on a disparity between co-  defendants is not justified when sentences are  dissimilar because of a plea bargain."); United  States v. Joyner, 924 F.2d 454, 460-61 (2d Cir.  1991) ("To reduce the sentence by a departure  because the judge believes that the applicable  range punishes the defendant too severely  compared to a co-defendant creates a new and  entirely unwarranted disparity between the  defendant's sentence and that of all similarly  situated defendants throughout the country."). As  the Fourth Circuit also explained in United  States v. Withers, 100 F.3d 1142, 1149 (4th Cir.  1996):     To base a defendant's sentence on a co-  conspirator's sentence is a short-sighted  approach which ignores the Guidelines' attempt to  eliminate unwarranted sentencing disparities  nation-wide . . . The Guidelines' goal of  national sentencing uniformity is not aimed only  at the particular criminal conduct that co-  conspirators may share, but also addresses other  factors that often vary between co-conspirators  like acceptance of responsibility and assistance  to the government.


2
 In its current form, 18 U.S.C. sec.  924(c)(1)(A)(i) provides:    [A]ny person who, during and in relation to any  crime of violence or drug trafficking crime  (including a crime of violence or drug  trafficking crime that provides for an enhanced  punishment if committed by the use of a deadly or  dangerous weapon or device) for which the person  may be prosecuted in a court of the United  States, uses or carries a firearm, or who, in  furtherance of any such crime, possesses a  firearm, shall, in addition to the punishment  provided for such crime of violence or drug  trafficking crime . . . be sentenced to a term of  imprisonment of not less than five years . . . .


3
 18 U.S.C. sec. 3553(e) provides:    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.
Pursuant to 18 U.S.C. sec. 3553(f)(1)-(5), a  defendant may also be eligible for a reduction  below the mandatory minimum sentence if the  sentencing court finds that the defendant has  fulfilled five requirements. See also U.S.S.G.  sec. 5C1.2 (reiterating these requirements). This  section is referred to as a "safety valve"  provision and limits the applicability of  statutory minimum sentences as to "first-time,  non-violent drug offenders who were not  organizers of criminal activity and who have made  a good faith effort to cooperate with the  government." United States v. Arrington, 73 F.3d  144, 147 (7th Cir. 1996).


4
 The government's effort to cast the error made by  the district court as a "non-Guidelines error"  with the effect of 18 U.S.C. sec. 3553(e)  operating completely outside the context of the  Guidelines is of no avail. Proper application of  the Guidelines requires more than a rote  computation of Criminal History Categories and  Guidelines ranges. Statutory mandatory minimum  sentences are explicitly contemplated in several  sections of the Guidelines, and the Guidelines  address how courts should deal with such  sentences. For example, U.S.S.G. sec. 2K2.4  specifically refers to the effect of sec. 924(c)  upon a defendant's sentence: "If the defendant,  whether or not convicted of another crime, was  convicted under 18 U.S.C. . . . sec. 924(c) . .  ., the term of imprisonment is that required by  the statute." U.S.S.G. sec. 2K2.4.


