                       United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 08-2721
                                    ___________

United States of America,                *
                                         *
             Appellant,                  *
                                         * Appeal from the United States
      v.                                 * District Court for the Western District
                                         * of Missouri.
Elisa Salas-Barraza,                     *
                                         *
             Appellee.                   *
                                    ___________

                              Submitted: March 13, 2009
                                 Filed: September 1, 2009
                                  ___________

Before SMITH, GRUENDER, BENTON, Circuit Judges.
                          ___________

SMITH, Circuit Judge.

       Elisa Salas-Barraza pleaded guilty to one count of conspiracy to distribute 50
grams or more of methamphetamine, in violation of 21 U.S.C. § 841(a)(1) and
(b)(1)(A). At sentencing, Salas-Barraza faced the statutory mandatory minimum of
120 months' imprisonment because she had two criminal history points and did not
qualify for the safety valve. The government made a substantial assistance motion
pursuant to 18 U.S.C. § 3553(e) and U.S.S.G. 5K1.1, which the district court granted.
The district court then imposed a sentence of five years' probation with six months'
home confinement. The government appeals, arguing that in fashioning Salas-
Barraza's sentence, the district court impermissibly based its sentence on factors other
than assistance-related considerations as required by § 3553(e). We now vacate Salas-
Barraza's sentence and remand for resentencing consistent with this opinion.

                                     I. Background
       Salas-Barraza, along with her father, Noah Salas, and other family members,
participated in a large-scale drug conspiracy. The conspiracy included the distribution
of methamphetamine and marijuana from the family home in Kansas City, Missouri.
Undercover officers purchased methamphetamine, cocaine, marijuana, and guns from
Noah Salas. From October 2005 until October 16, 2008, Noah Salas distributed over
504 grams of methamphetamine.

       A court-authorized wiretap on Noah Salas's telephone revealed that Salas-
Barraza was actively involved in the drug conspiracy. Investigators learned that Salas-
Barraza would fill orders for methamphetamine if Noah Salas was not present at the
residence; in addition, she would take orders for methamphetamine from customers
calling for Noah Salas.

       Salas-Barraza was arrested in July 2006; thereafter, she agreed to cooperate
with the government and gave a full statement of her activities and those of her
relatives in a proffer session with investigators.

       In October 2006, a federal grand jury returned a 40-count superseding
indictment, charging Salas-Barraza and 19 other defendants with various drug
trafficking offenses. Specifically, the indictment charged Salas-Barraza with one count
of conspiracy to distribute methamphetamine in an amount of 50 grams or more, in
violation 21 U.S.C. § 841(a)(1) and (b)(1)(A); one count of aiding and abetting the
distribution of methamphetamine in an amount of five grams or more, in violation of
21 U.S.C. § 841(a)(1) and (b)(1)(A) and 18 U.S.C. § 2; and criminal forfeiture.




                                         -2-
       Pursuant to a plea agreement, Salas-Barraza pleaded guilty to one count of
conspiracy to distribute 50 grams or more of methamphetamine and criminal
forfeiture. The presentence investigation report (PSR) concluded that Salas-Barraza
would have an advisory Guidelines range of 63 to 78 months' imprisonment but for
the existence of a 120-month mandatory minimum. According to the PSR, Salas-
Barraza's "sentencing guidelines [were] restricted to the statutory minimum of 120
months as she [did] not qualify for the Safety Valve due to her having two criminal
history points."

        Thereafter, the government filed a substantial assistance motion, noting that
Salas-Barraza had "agreed to cooperate with investigators by fully confessing her role
in the conspiracy" and "to assist law enforcement with the ongoing investigation of
this large scale conspiracy." Additionally, the government indicated that Salas-Barraza
"was able to verify many aspects of the conspiracy known to law enforcement"; to
"detai[l] the dealings of some of the co-conspirators," including her father and uncle;
and "to paint a clearer picture of the conspiracy for law enforcement officials."
Finally, the government stated in its motion that Salas-Barraza had agreed to testify
against many of her codefendants and that she "st[ood] ready to continue to assist the
government, if needed." The government asked the district court to depart downward
to the extent that "fully reflects [the] defendant's past and possible future assistance"
but did not specify a numerical amount in its motion.

       At sentencing, the court requested the government's assistance in "evaluating
the extent of the defendant's cooperation" by asking the government to "grade" the
assistance, using an "A through F scale." The government then replied:

             Judge, I think it was probably a B or B plus. She did everything
      the government asked her to do. Because of her position within the
      conspiracy, the conspiracy involved other family members, put her in a
      difficult position. But she did inform us of things that we did not know.
      She informed us of things and verified things that we already knew

                                          -3-
      inside this conspiracy. So she did a very good job, Judge. It was better
      than average.

             She was in a difficult position. And she did everything we asked
      her to do. She gave us information that was pertinent and needed by the
      government. She also stood ready to testify, if need be, against even
      family members. So, again, being in a very difficult position, she did
      everything that we asked her to do.

       As a result, the district court granted the motion for downward departure and
expressed its belief that such motion "opens up then the full range of sentencing
options." The district court then asked Salas-Barraza's counsel for her sentencing
recommendation. In response, Salas-Barraza's counsel expressed her belief that the
appropriate "starting point" for a departure ruling was a "63-month range"—the range
that would have applied but for Salas-Barraza's criminal history score disqualifying
her for safety valve treatment. Counsel suggested an "extremely significant departure"
of 30 to 36 months' imprisonment based on the "courage" that it took for Salas-
Barraza to cooperate in a case involving family members. Counsel also noted the
numerous letters of support by family and friends urging leniency and Salas-Barraza's
desire to turn her life around and return to her children.

       When the court then asked the government for its recommendation, the
government replied that it was "going to leave any sentence you give Ms. Salas-
Barraza to the Court. The government believes the starting point is, obviously, the
mandatory minimum of 120 months. Half of that, 60 months or something just short
of that would be appropriate in this situation."

      The court then asked the government to compare Salas-Barraza's role in the
conspiracy to that of coconspirator Victoria E. Ramos, who had received a 30-month
sentence. According to the government, Salas-Barraza was "a little more involved"
than Ramos "because of her father and probably her father's trust in her to carry on


                                         -4-
some of these drug dealings when he was not available, not around the house." The
government found "a difference in the level of activity between Ms. Salas-Barraza and
Ms. Ramos," concluding that "Ms. Ramos was probably the least culpable out of all
the defendants in this case." As to Salas-Barraza, the government stated that "she did
not have as big a role as most of the other people in the conspiracy" and recognized
that the PSR "adequately reflects that she was not the main person in this conspiracy"
and that she "did deserve a two-level role reduction, mitigating role for her role in the
offense."

      Thereafter, the district court engaged in a lengthy sentencing colloquy, stating:

            Ms. Salas, I am required to consider the United States Sentencing
      Guidelines and the factors in 18 USC 3553(a). I'm also required to
      consider in this case the factors in 5K1.1 of the sentencing guidelines,
      which tells me that I have to evaluate the significance and usefulness of
      your assistance, taking into account the government's evaluation, which
      is why I asked Mr. Marquez to grade your cooperation.

             I take into account the truthfulness, completeness and reliability
      of any information provided by the defendant here. There's no indication
      you've been anything other than truthful, complete and reliable under
      some very trying circumstances. I recognize that your involvement in
      this conspiracy was driven to a large extent by the involvement of your
      family and, particularly, your father.

             I have to consider the nature and extent of your assistance, any
      danger or risk of injury to the defendant or the defendant's family. And
      I suppose there is always some risk involved when a person provides
      assistance to the government. Here, I'm not aware of any unusual risk or
      threat of injury.

             And then the timeliness of the defendant's assistance. And there's
      no indication that you've been anything other than timely. So all of those
      factors seem to weigh in your favor.


                                          -5-
       Additionally, I turn to 18 USC 3553 and there I'm told I'm to
impose a sentence sufficient but not greater than necessary, a phrase
often referred to as the parsimony phrase of that statute. Not greater than
necessary to comply with the purposes of the statute, considering the
nature and circumstances of the offense and the history and
characteristics of the defendant.

        As I have told every defendant who's come in in this case, I
consider this to be a serious offense. The number of defendants, the
quantity of drugs, the scope of the conspiracy, is great. And you played
a role. Now, were you as involved as Ms. Bustamante or Mr. Felix-Moya
or even your father? No, you weren't. But your role has been recognized
by the two-level reduction done by the probation office in calculating the
guideline range. That really has no effect in this case if I treat the
effective guideline range to be 120 months, which is what the statutory
minimum is. But it is recognized in the calculations.

       Then I consider your personal history and characteristics. And,
Ms. Salas, you don't have to convince me that you're a good person. I
think you are.

      Your life to some extent has been a struggle and I recognize that.
You have made some bad decisions. You've associated with some people
who also made bad decisions. But I think that at your core you are a
good person who's trying to do the best she can do.

       I don't consider your criminal history to be especially bad. There's
some things I'm sure you wish you hadn't done. But nevertheless it's not
as though you're robbing liquor stores or convenience stores at the point
of a gun.

      The sentence I impose should be one that reflects the seriousness
of the offense, promotes respect for the law and provides just
punishment.

      The scope of this conspiracy is such that it almost cries out for a
custody sentence in your case. There is simply no way to minimize the


                                   -6-
scope of the conspiracy. On the other hand, the sentence, itself, should
promote respect for the law and provide just punishment. If I lock you
up, there are people in this room who are going to believe that that's not
a just punishment in this case. There are probably people in the
community that, when all of what I know is explained to them, they
would think that it's not a just punishment.

       The sentence I impose should be one that affords an adequate
deterrence to criminal conduct. That means to deter you and to deter
others who might be tempted to do what you did. I don't think a custody
sentence is necessary in this case to deter you. I think you have been
sobered by this experience and by facing the reality of what your conduct
has resulted in for your family and in particular your daughters. I'm not
sure that you would ever put your family in this situation again.

        On the other hand, if I don't put you in prison there are others who
are going to say, well, look at Salas. She was involved in this conspiracy.
She was doing drugs. She was dealing drugs. And she didn't go to prison,
so I'll do that. You know, I'll take probation. I'll run the risk. And so I'm
not sure that failing to put you in prison has a deterrent effect on others.

      The sentence I impose should protect the public from further
crimes of the defendant. I don't think locking you up is necessary to do
that.

      It should provide the defendant with needed educational and
vocational training, medical care and other correctional treatment in the
most effective manner.

      It should consider the kinds of sentences available and should
avoid unwarranted sentence disparities between you and others who have
engaged in the same or similar conduct, occupying the same or similar
criminal history category.

       Anything, other than what we would call a routine departure in
this case, is going to be different than what other defendants get.



                                    -7-
       If I treat your sentencing range as being 120 months, a routine
departure would be about 60 months of imprisonment. I think defendants
in other districts would be happy to receive a 50 percent departure from
the lower end of the guidelines. This district is a little unusual in that
respect.

       But in addition to considering the disparity issue on the universal
or global sense, I also have to consider it within the context of this case
which is why I asked Mr. Marquez to compare and contrast your
involvement with that of Ms. Ramos. I'm sure you know Ms. Ramos
received a sentence of 30 months. Your involvement probably is at least
the equal of Ms. Ramos, if not greater than hers. But there are some other
differences. Ms. Ramos chose to be with Ms. Bustamante. She had a
relationship with her. But there are times when she didn't need to be
involved in the actual distribution but she chose to be involved in it.

       Your situation is a little different because it was your father who
got you involved. And I think that there is a natural tendency in all of us
to try to do those things which are pleasing to our parents, even when
those things are wrong and when those things are bad. And it's a form of
pressure that may be greater than participating with someone that you
care for because there's a different relationship between father and a
child and mother and a child.

      I'm struggling here, Ms. Salas, because I don't want to send you to
prison. And yet, you know, I've taken an oath to apply the law of the
Circuit and the laws enacted by Congress.

       When it's all said and done, I'm the one that has to deal with my
own conscience. I don't, I simply don't think that prison is necessary in
this case.

       Pursuant to the Sentencing Reform Act of 1984, it is the judgment
of this Court that the Defendant Elisa Salas-Barraza is hereby placed on
probation for five years. The fine will be waived. I impose a special
assessment in the amount of $100.



                                   -8-
       The government then objected to the sentence of probation pursuant to 18
U.S.C. § 3553, expressing its belief that the reasons stated by the district court were
insufficient to justify a sentence of probation. The court then asked the government
whether the court could say anything else that would justify a sentence of probation.
The government replied, "I don't believe so at this time, Judge."

                                      II. Discussion
       The government asserts that the district court erred in sentencing Salas-Barraza
to five years' probation following her guilty plea to a charge of conspiracy to distribute
50 grams or more of methamphetamine, in violation of 21 U.S.C. § 841(a)(1) and
(b)(1)(A)—an offense normally requiring a mandatory minimum sentence of 120
months' imprisonment. The government acknowledges that it filed a motion for
downward departure based upon Salas-Barraza's substantial assistance, thereby
allowing for the imposition of a sentence below the 120-month minimum, and
recommended a sentence of 60 months' imprisonment; but, the government maintains
that Salas-Barraza's cooperation was not so exceptional as to justify a sentence of
probation. According to the government, the district court erroneously determined that
probation was appropriate by relying on the sentencing factors enumerated in 18
U.S.C. § 3553(a), rather than focusing exclusively on the nature, significance, and
timing of Salas-Barraza's substantial assistance. The government maintains that where,
as here, it files a motion for substantial assistance that results in a sentence below the
mandatory minimum, the extent of the deviation must be based exclusively on
assistance-related factors.

       Additionally, the government contends that there was nothing extraordinary
about Salas-Barraza's cooperation. She timely furnished helpful information to the
government and agreed to testify, if necessary, against her father and other relatives
who were involved in the drug conspiracy. But she did not engage in undercover buys
or place herself in physical jeopardy. Salas-Barraza was never actually required to
testify against any of the other defendants. The government thus argues that the

                                           -9-
district court erred in considering non-assistance related factors in imposing probation.
The government also contends that the court further erred by imposing a sentence that
was so disproportionate to the nature and extent of the substantial assistance as to
render the sentence unreasonable.

       In response, Salas-Barraza argues that the district court did not err in sentencing
her to five years' probation because Gall v. United States, 128 S. Ct. 586 (2007),
renders the "extraordinary circumstances" test completely null and void in both
Guidelines cases and § 3553(e) cases. She contends that the rejection of the rigid
mathematical formula is not limited to cases under the Guidelines and, therefore, the
rejection of such a formula also applies in cases under § 3553(e). As a result, she
asserts that the government's argument that the departure in this case must be based
exclusively on assistance-related factors and that an extraordinary reduction to
probation must be supported by extraordinary assistance-related factors is without
merit under Gall.

       This court, sitting en banc, recently examined whether Gall abrogated or
overruled our prior decision "'that a reduction in sentence based on [18 U.S.C.]
Section 3553(e) may be based only on assistance-related considerations,' United States
v. Williams, 474 F.3d 1130, 1131 (8th Cir. 2007)." United States v. Burns, __F.3d__,
2009 WL 2525585, at *5 (8th Cir. Aug. 20, 2009). In reaffirming our holding in
Williams and its progeny, we stated:

      We have revisited the holding in Williams post-Gall and have concluded
      that Gall has not affected the limitations imposed by 18 U.S.C. § 3553(e)
      upon the district court's authority to impose a sentence below the
      statutory minimum. See United States v. Johnson, 517 F.3d 1020 (8th
      Cir. 2008); United States v. Freemont, 513 F.3d 884 (8th Cir. 2008). We
      adhere to the holdings in those cases. As we read Gall, the Court there
      was concerned about the heightened standard of review that appellate
      courts had imposed through the application of concepts such as
      extraordinary/exceptional circumstances, departure percentages,

                                          -10-
      proportionality review, and the like and said nothing that would indicate
      that district courts are not bound by the strictures set forth in § 3553(e).

Id. at *6 (footnote omitted). Therefore, post-Gall, district courts must continue to base
their sentence reductions under § 3553(e) solely on assistance-related considerations.
See id.

       Here, a review of the district court's sentencing colloquy reveals that it did not
rely solely on assistance-related considerations in sentencing Salas-Barraza to five
years' probation. The district court specifically stated that it was "required to consider
the [Guidelines] and the factors in 18 USC 3553(a)." (Emphasis added.) The district
court then discussed, in detail, all of the § 3553(a) factors in determining an
appropriate sentence. Because the district court did not base its sentence solely on
assistance-related considerations, we vacate the sentence and remand for resentencing
consistent with this opinion.

                                  III. Conclusion
       Accordingly, we vacate Salas-Barraza's sentence and remand to the district
court for resentencing consistent with this opinion.
                       ______________________________




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