                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                       UNITED STATES CO URT O F APPEALS
                                                                        January 12, 2007
                             FO R TH E TENTH CIRCUIT                  Elisabeth A. Shumaker
                                                                          Clerk of Court

    U N ITED STA TES O F A M ER ICA,

              Plaintiff-Appellee,
                                                          No. 06-3156
     v.                                           (D.C. No. 05-CR-10190-M LB)
                                                            (D . Kan.)
    JOH N D OE,

              Defendant-Appellant. *



                              OR D ER AND JUDGM ENT **


Before HO LM ES, M cKA Y, and BROR BY, Circuit Judges.


          Appellant challenges his sentence for possessing with intent to distribute

500 grams or more of methamphetamine. He argues that the district court erred in

not granting a downward departure from the sentencing guidelines for providing

substantial assistance to the government. W hile we lack jurisdiction to consider



*
      W e grant Appellant’s unopposed motion to conceal his true identity
throughout this order and judgment, and we make permanent the provisional seal
placed on this entire matter on July 31, 2006.
**
       After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. It may be cited, however, for its persuasive value
consistent w ith Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
the district court’s refusal to depart downward, we have jurisdiction to review

A ppellant’s sentence for reasonableness. Conducting a reasonableness review , w e

determine that Appellant must be resentenced.

                                  B ACKGROUND

      During a traffic stop in Kansas, a Highway Patrol Trooper discovered over

1,700 grams of methamphetamine in a vehicle occupied by Appellant and an

associate. Both men were later indicted for unlawfully entering the United States

and for possessing with intent to distribute 500 grams or more of

methamphetamine. Appellant pleaded guilty to the possession count and the

Government agreed to move to dismiss the unlaw ful-entry count.

      The Presentence Investigation Report (PSR) calculated A ppellant’s offense

level as thirty-five and his criminal history as category two. Accordingly,

Appellant fell in the guideline sentencing range of 188 to 235 months. The PSR

also stated that there was no information to warrant a departure.

      The Government later moved for “a 24 month reduction from the low end

of the guideline range, resulting in a sentence of 164 months.” ROA, Vol. 2,

Doc. 25 at 1. The Government stated only that “[t]he defendant has provided

substantial assistance, as that term is used in [U.S.S.G.] § 5K1.1 and 18 U.S.C.

[§] 3553(e), to the Government.” ROA, Vol. 2, Doc. 25 at 1. At the sentencing

hearing, the district court review ed the motion and commented, “This doesn’t tell

me anything.” Id., Vol. 4, at 4. The Government then offered more substance:

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             The hang-up in the case was with the co-defendant.
      [Appellant], through proffering with his attorney, provided a proffer
      to the United States stating what he would say if he was to testify.
      He also was willing to testify against the co-defendant. Once the
      co-defendant’s counsel was notified of that, then the co-defendant
      did plead. So the Government believed that it was instrumental by
      [Appellant] for his cooperation and willingness to cooperate, so [the]
      Government filed the [motion] for a 24 month deviation from the
      advisory guidelines . . . .

Id. The district court denied the motion, stating: “Rolling over on a co-defendant

isn’t substantial assistance in my judgment.” Id. at 5.

      The district court then heard the parties’ sentencing recommendations.

W hile the Government recommended 188 months without elaborating,

Appellant’s counsel recommended that “[Appellant] receive the low end of the

sentencing guideline range” based, in part, on Appellant’s willingness to testify

against his co-defendant. Id. at 5-6. The district court sentenced Appellant to the

high end of the guideline range, 235 months, stating only that “the presentence

report is accurate.” Id. at 7.

      This appeal followed.

                                       D ISCUSSION

                                 I. Appellate Jurisdiction

      “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.”

U.S.S.G. § 5K1.1; accord 18 U.S.C. § 3553(e). But “a district court’s

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discretionary refusal to grant a downward departure, including a refusal after a

government motion pursuant to § 5K1.1,” is beyond our jurisdiction. United

States v. Fitzherbert, 13 F.3d 340, 344 (10th Cir. 1993). W e have jurisdiction

only in “the very rare circumstance that the district court states that it does not

have any authority to depart from the sentencing guideline range for the entire

class of circumstances proffered by the defendant.” United States v.

M iranda-Ramirez, 309 F.3d 1255, 1258 (10th Cir. 2002) (quotation omitted).

      Appellant and the Government both contend that we have jurisdiction.

They argue that the district court failed to consider the particular circumstances of

this case and instead announced that the entire class of defendants w ho cooperate

against co-defendants is ineligible for § 5K1.1 relief. W e disagree. Upon

reviewing the Government’s motion, the district court observed that the motion

revealed nothing about the circumstances of Appellant’s assistance to the

Government. This prompted the Government to reveal those circumstances. The

district court then characterized the extent of Appellant’s assistance as “[r]olling

over,” and it denied the motion. At no time did the district court suggest that it

lacked the authority to depart downward for cooperation against a co-defendant.

See United States v. Rodriguez, 30 F.3d 1318, 1319 (10th Cir. 1994) (“[U ]nless

the judge’s language unambiguously states that the judge does not believe he has

authority to downward depart, we will not review his decision.”). Rather, the

district court considered whether Appellant’s w illingness to testify against his

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co-defendant constituted “substantial assistance,” and concluded that it did not.

W e lack jurisdiction to review that exercise of discretion. 1 Accordingly, we

DISM ISS that portion of this appeal.

                                II. Reasonableness

      Nevertheless, in light of United States v. Booker, 543 U.S. 220, 264 (2005),

we do have jurisdiction to review Appellant’s sentence for reasonableness. See

United States v. Chavez-Diaz, 444 F.3d 1223, 1229 (10th Cir. 2006). A sentence

that falls within a properly calculated advisory range receives a presumption of

reasonableness that may be rebutted by “demonstrating that the sentence is

unreasonable when viewed against the other factors delineated in [18 U.S.C.]

§ 3553(a).” 2 United States v. Kristl, 437 F.3d 1050, 1054 (10th Cir. 2006).

      Neither Appellant nor the Government discuss reasonableness in light of

the prescribed factors. Instead, they assert that the sentence is unreasonable


1
       Other circuits have likewise recognized a jurisdictional bar to reviewing
whether a defendant’s willingness to testify against or to inculpate a co-defendant
is “substantial assistance.” See, e.g., United States v. Foster, 988 F.2d 206, 208,
210 (D .C. Cir. 1993); United States v. Dellinger, 986 F.2d 1042, 1043 (6th Cir.
1993).
2
       The § 3553(a) factors include: (1) the nature and circumstances of the
offense and the history and characteristics of the defendant; (2) the need to reflect
the seriousness of the offense, to promote respect for the law, and to provide just
punishment for the offense; (3) the need for deterrence; (4) the need to protect the
public; (5) the need to provide the defendant with needed educational or
vocational training or medical care; (6) the kinds of sentences available; (7) the
Sentencing Guidelines range; (8) pertinent policy statements of the Sentencing
Commission; (9) the need to avoid unwanted sentencing disparities; and (10) the
need to provide restitution to victims.

                                         -5-
because the district court “refused to even consider the [Government’s] motion

for a ‘substantial assistance’ reduction.” Aplt. Br. at 21; see also Aplee. Br. at 8.

But as we indicated above in Part I, the district court considered whether

Appellant’s cooperation with the Government was substantial assistance and

found that it was not.

      To the extent Appellant maintains that his sentence is unreasonable because

the district court failed to consider his cooperation when it selected 235 months

from the 188-to-235-month guideline range, we agree with the Second Circuit that

in formulating a reasonable sentence under § 3553(a), a sentencing judge “should

take under advisement . . . the contention that a defendant made efforts to

cooperate.” United States v. Fernandez, 443 F.3d 19, 33 (2d Cir.), cert. denied,

127 S. Ct. 192 (2006). Appellant’s counsel argued for a low-end sentence based

on Appellant’s cooperation, but the district court did not address it. Indeed, the

district court did not reference any of the § 3553(a) factors in sentencing

Appellant. 3 “There is no question that, in addition to guiding our reasonableness

review on appeal, the sentencing factors set forth in 18 U.S.C. § 3553(a) must be

considered by the district court itself when imposing a sentence.” United States

v. Sanchez-Juarez, 446 F.3d 1109, 1115 (10th Cir. 2006). W hile “we will not

demand that the district court recite any magic words to show us that it fulfilled




3
      The PSR was likew ise silent as to § 3553(a).

                                          -6-
its responsibility to be mindful of the factors that Congress has instructed it to

consider,” w e may not “simply presume [that] the district court weighed a party’s

arguments in light of the § 3553(a) factors.” Id. at 1115-16 (quotations omitted).

Consequently, when a defendant raises “substantial contentions concerning

non-G uidelines § 3553(a) factors and the district court imposes a sentence within

the Guildelines range,” the district court should “explain on the record how the

§ 3553(a) factors justify the sentence.” See United States v. Lopez-Flores,

444 F.3d 1218, 1222 (10th Cir. 2006), petition for cert. filed, No. 06-5217 (U.S.

July 7, 2006); see also Sanchez-Juarez, 446 F.3d at 1117 (requiring the district

court to make a sufficient § 3553(a) record when presented with a “nonfrivolous

argument”).

      Because we cannot discern from the record whether the district court relied

on the guidelines alone or whether it considered Appellant’s cooperation in light

of the § 3553(a) factors, w e REM AND to the district court with instructions to

vacate A ppellant’s sentence and to resentence him after expressly considering his

request for a sentence reflecting his cooperation with the Government. 4

                                                      Entered for the Court


                                                      W ade Brorby
                                                      Circuit Judge



4
      In remanding for resentencing, we in no way express an opinion regarding
what the ultimate sentence should or should not be.

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