                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                  ___________

                                  No. 05-3841
                                  ___________

United States of America,              *
                                       *
            Appellant,                 *
                                       * Appeal from the United States
      v.                               * District Court for the
                                       * Northern District of Iowa.
Donna Peterson,                        *
                                       *
            Appellee.                  *
                                  ___________

                             Submitted: June 15, 2006
                                Filed: August 4, 2006
                                 ___________

Before BYE, LAY, and RILEY, Circuit Judges.
                             ___________

RILEY, Circuit Judge.

       After Donna Peterson pled guilty to a two-count indictment, the government
filed motions for substantial assistance under U.S.S.G. § 5K1.1 and 18 U.S.C.
§ 3553(e). The district court granted the motions and sentenced Peterson to
concurrent 68 month sentences, which represented a 50% downward departure from
the bottom of the advisory Guidelines range of 135 months’ imprisonment, and a 43%
reduction below the statutory mandatory minimum sentence of 120 months’
imprisonment. The government appeals. We remand for resentencing.
I.    BACKGROUND
      Peterson pled guilty to a two-count indictment. Count one charged Peterson
with conspiracy to manufacture and distribute methamphetamine within one thousand
feet of a school, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), 846, and
860(a), which carried a statutory mandatory minimum sentence of 120 months’
imprisonment. Count two charged Peterson with being an unlawful user in
possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(3) and 924(a)(2).

       At sentencing, the district court adopted Peterson’s plea agreement admissions
and the unopposed presentence investigation report, and calculated an advisory
Guidelines sentencing range of 135 to 168 months. The government moved for a
downward departure for substantial assistance under U.S.S.G. § 5K1.1 and 18 U.S.C.
§ 3553(e), and recommended a 20% downward departure from the advisory
Guidelines range. The government described Peterson’s assistance as that of a
“lower-level distributor,” whose “information was useful but was not the only
evidence to assist with the indictments of [co-conspirators].” The government
considered Peterson’s cooperation to be timely, and characterized the “truthfulness,
completeness, and reliability” of Peterson’s information and testimony as “okay.”
The government did not believe Peterson’s assistance posed any injury, danger, or
risk of injury to Peterson or her family. Peterson’s counsel asked the district court to
consider factors under section 3553(a), such as Peterson’s drug treatment, relative
sobriety, consistent work history, and family support, in determining Peterson’s
ultimate sentence.

       The district court sustained the government’s motions, noted the government’s
recommendation, and mentioned several factors it would consider, including
Peterson’s drug addiction, depression, and employment history. The court went on
to consider factors under section 3553(a), including (1) the nature and circumstances
of the offenses; (2) Peterson’s personal history and characteristics, including use of
Paxil for depression; (3) the advisory Guidelines range; (4) the recommended

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Guidelines range for one of Peterson’s yet-to-be sentenced co-conspirators; and
(5) Peterson’s post-offense rehabilitation. The court then stated:

             There is a mandatory minimum of 120 months, and the Court’s
      aware of that, and the 5K motion pertains to going down that far, and
      then the 3553 allows the Court to go lower than that, and that’s what the
      Court is contemplating at this time.

             ....

             The Court is now stating–this is not the sentence, but this is just
      to allow the lawyers to have a chance to make a final objection, and the
      Court is going to sentence the defendant to 68 months which is a 50
      percent reduction.

       The government objected to the downward departure, arguing the district court
impermissibly blended its consideration of the substantial assistance motions under
U.S.S.G. § 5K1.1 and 18 U.S.C. § 3553(e) with factors other than Peterson’s
assistance, namely those factors set forth in 18 U.S.C. § 3553(a). Peterson’s counsel
admitted Peterson withdrew her motion for a downward variance once the
government filed the motions for substantial assistance. Nevertheless, the district
court stated, “The Court is standing with what it said before. The Court feels that the
government is attempting to say that this is [an] unreasonable [sentence].” In
conclusion, the district court said:

            The Court will grant the 5K1 motion by the government. The
      Court will grant the 3553(e) motion by the government.

             Pursuant to the Sentencing Reform Act, the Court is to impose a
      sentence sufficient but not greater than necessary to comply with
      sentencing purposes. In order to do so, the Court has fully considered
      the aforementioned advisory guidelines and the factors set forth in 18
      U.S. Code section 3553(a), sections (1) through (7), as well as the
      defendant’s substantial assistance.

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The district court sentenced Peterson to concurrent 68 month sentences on counts one
and two, representing a 50% downward departure from the bottom of the advisory
Guidelines range of 135 months, and representing a 43% reduction below the 120
month statutory minimum sentence. The government appeals, arguing the district
court erred in (1) varying from the advisory Guidelines range before ruling on the
substantial assistance motions, and (2) considering factors under section 3553(a) in
determining Peterson’s substantial assistance.

II.    DISCUSSION
       We review de novo the district court’s interpretation and application of the
Guidelines, we review for clear error the district court’s factual findings, and we
review for an abuse of discretion the district court’s decision to depart from the
appropriate Guidelines range. United States v. Mashek, 406 F.3d 1012, 1017 (8th
Cir. 2005).

       When the government files a motion for substantial assistance pursuant to
U.S.S.G. § 5K1.1, “the court may depart from the guidelines.” A motion by the
government pursuant to 18 U.S.C. § 3553(e) provides the sentencing court with
further “authority to impose a sentence below a level established by statute as a
minimum sentence so as to reflect a defendant’s substantial assistance in the
investigation or prosecution of another person who has committed an offense.” We
have held “[t]he extent of a departure or reduction pursuant to § 5K1.1 or § 3553(e)
can be based only on assistance-related considerations, and our review of a reduction
for substantial assistance typically centers on the non-exhaustive list of factors set
forth in § 5K1.1.” United States v. Saenz, 428 F.3d 1159, 1162 (8th Cir. 2005)
(listing the U.S.S.G. § 5K1.1(a) factors the court may consider, which include: (1) the
significance and usefulness of the defendant’s assistance; (2) the truthfulness,
completeness, and reliability of the defendant’s information and testimony; (3) the
nature and extent of the defendant’s assistance; (4) any injury, danger, or risk of
injury to the defendant or his family due to his assistance; and (5) the timeliness of

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the defendant’s assistance (citation and quotation omitted)); cf. United States v.
Pamperin, No. 05-3632, slip op. at 5 (8th Cir. Aug. 3, 2006) (noting, similarly, the
government’s decision to withhold substantial assistance motions may not be based
“on factors other than the substantial assistance provided by the defendant” (internal
quotation omitted)).

        In Peterson’s case, the district court granted a 50% downward departure from
the Guidelines range (43% below the statutory minimum sentence). In doing so, the
district court discussed factors other than Peterson’s assistance. However, on the
record before us, we cannot determine (1) the weight the district court gave
permissible factors regarding Peterson’s assistance, (2) the district court’s position
regarding the government’s recommendation of a 20% downward departure, and
(3) for what purpose the district court considered factors other than Peterson’s
assistance, noting in particular, Peterson withdrew her motion for downward variance
when the government moved for substantial assistance. Given the nature of
Peterson’s assistance, it is uncertain whether a 50% reduction based solely on
Peterson’s assistance would be reasonable, although we state no opinion regarding
the reasonableness of such a reduction. See Mashek, 406 F.3d at 1017 (concluding
if the sentence imposed by the district court is “the result of an incorrect application
of the guidelines, we will remand for resentencing . . . without reaching the
reasonableness of the resulting sentence” (citing 18 U.S.C. § 3742(f)(1)). Because
the district court did not specify its reasons for granting the motions for substantial
assistance, apart from other sentencing considerations, we must remand for
resentencing. See 18 U.S.C. § 3553(c)(2) (stating the district court must specifically
state its reasons for varying from the Guidelines range); id. § 3742(f)(2) (requiring
appellate courts to remand for resentencing when the district court fails to provide
reasons for its sentencing variance or grants a departure based on an impermissible
factor).




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III. CONCLUSION
     As directed by 18 U.S.C. § 3742(f)(1), (2), we vacate Peterson’s sentence and
remand for resentencing consistent with this opinion.
                      ______________________________




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