                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                  ___________

                                  No. 04-1594
                                  ___________

United States of America,             *
                                      *
            Plaintiff-Appellant,      *
                                      * Appeal from the United States
      v.                              * District Court for the Northern
                                      * District of Iowa.
Darrin Todd Haack,                    *
                                      *
            Defendant-Appellee.       *
                                 ___________

                         Submitted: November 16, 2004
                             Filed: April 13, 2005
                                 ___________

Before MURPHY, HANSEN, and MELLOY, Circuit Judges.
                           ___________

MELLOY, Circuit Judge.

       Mr. Haack provided substantial assistance following his arrest on drug
conspiracy and gun charges. Mr. Haack pled guilty, and the government moved for
a downward departure under U.S.S.G. § 5K1.1 and 18 U.S.C. § 3553(e),
recommending a ten percent departure on the conspiracy charge. The district court
granted a much greater departure. The government appeals the sole issue of whether
the district court abused its discretion by departing to an unreasonable extent. We
reverse and remand for resentencing.
                                          I.

      Mr. Haack participated in a multi-state marijuana trafficking conspiracy. It is
undisputed that, at a minimum, he allowed other members of the conspiracy to
deliver, package, and redistribute large quantities of marijuana to and from his rural
residence near Waseca, Minnesota. Mr. Haack received cash as well as distribution
quantities of marijuana as payment. He distributed the marijuana that he received.

      Officers learned of Mr. Haack’s involvement in part from their investigation
of two Iowans, Tom and Jeannette Clayton. The Claytons told officers that they
received their marijuana from Mr. Haack. Tom Clayton also told officers that he
received a 9 millimeter handgun from Mr. Haack while picking up marijuana at Mr.
Haack’s residence. Officers used this information to obtain a search warrant for Mr.
Haack’s residence. During the search, officers discovered Mr. Haack at home with
his children. Officers also discovered over forty pounds of marijuana and a .357
caliber handgun. On the night of his arrest, Mr. Haack provided a self-incriminating
post-Miranda statement. In his statement, he named two coconspirators, Holly and
Cesar Perez.

       That night, local authorities held Mr. Haack at the Waseca County Jail in
Minnesota. The following morning, federal officers took custody of Mr. Haack and
drove him approximately 300 miles to Sioux City, Iowa, where his initial appearance
took place before a United States Magistrate Judge. The government charged him in
a two count indictment for conspiring to distribute 1000 kilograms or more of
marijuana in violation of 21 U.S.C. §§ 846 and 841(a)(1) and (b)(1)(A), and
knowingly using and carrying a firearm during and in relation to the drug offense in
violation of 18 U.S.C. § 924(c).

       According to Mr. Haack, an Assistant United States Attorney for the Northern
District of Iowa told him and his counsel that no cooperation offer would be made at

                                         -2-
any time if he failed to cooperate immediately or demanded a detention hearing.
Nevertheless, Mr. Haack requested a detention hearing. The district court denied his
request. On April 14, 2003, Mr. Haack filed a Motion to Dismiss and a Motion to
Suppress. On August 7, the district court denied Mr. Haack’s motions.

       In September, the government changed its position and offered Mr. Haack the
opportunity to cooperate and provide assistance. Mr. Haack pled guilty to both
counts and provided assistance in the form of information. Mr. Haack did not
participate in any controlled buys on behalf of the government, work undercover, or
otherwise place himself in a position of danger (other than the danger inherent in
providing information to the government). Further, other than the information that
he provided regarding the Perezes on the night of his arrest (which preceded any
cooperation agreement), the only information he provided was information regarding
parties already under investigation by the government. Mr. Haack was willing to
testify against the Perezes.

       At the sentencing hearing, the government moved for a downward departure
on the drug count based on Mr. Haack’s cooperation and substantial assistance under
U.S.S.G. § 5K1.1 and 18 U.S.C. § 3553(e). The government recommended a ten
percent departure. The government did not move for a departure on the gun count.

       At the sentencing hearing, the district court explored the nature and extent of
Mr. Haack’s assistance to the government and the effect that this assistance had on
the government’s ability to investigate and prosecute other defendants or obtain pleas.
In addition, the district court explored the issue of timeliness and whether the
government penalized Mr. Haack for his initial assertion of rights through the request
for a detention hearing and the motions to suppress and dismiss. The district court
also addressed the issue of the truthfulness and completeness of Mr. Haack’s
statements. We address in detail the exchanges that took place during the sentencing
hearing.

                                         -3-
       The government explained that the initial statement Mr. Haack made on the
night of his arrest implicated coconspirators Holly and Cesar Perez. This
information, together with phone tolls and scraps of paper that officers found in Mr.
Haack’s home, supported a search warrant for the Perezes’ home. Although the
government conceded that Mr. Haack’s initial statement led to the investigation of the
Perezes and helped officers obtain a search warrant for the Perezes’ home, the
government noted that Mr. Haack’s early refusal to cooperate forced officers to gather
additional evidence and deprived officers of the benefit of Mr. Haack’s testimony for
use in grand jury proceedings.

      The government further explained that the Perezes started cooperating
immediately and provided information about Mr. Haack and other conspirators. The
Perezes, however, later withdrew their cooperation. When Mr. Haack agreed to
cooperate in September, he gave some information regarding co-defendants Luis
Caballero and Jose Martinez and gave more detail regarding the Claytons. Mr.
Martinez also cooperated with the government. The government characterized Mr.
Haack’s assistance as being most helpful in obtaining guilty pleas from Holly and
Cesar Perez. Mr. Haack was willing to testify against the Perezes, and the
government believed that this willingness to testify, along with testimony from Mr.
Martinez and scraps of paper from Mr. Haack’s house, comprised the case against the
Perezes that induced their guilty pleas.

       The district court asked the government what effect Mr. Haack’s decision to
assert his right to request a detention hearing and move for suppression had on the
timeliness and effectiveness of his assistance. The government explained that,
because Mr. Haack’s cooperation was delayed, the Perezes offered certain
information that Mr. Haack could have provided, thereby decreasing the value of Mr.
Haack’s eventual cooperation. In addition, the government noted that Mr. Haack’s
election to seek a detention hearing and his decision to move for suppression or
dismissal forced the government to develop evidence by other means. The

                                         -4-
government argued generally that Mr. Haack was less worthy of leniency than
defendants who “come clean” immediately, forego their rights, and provide assistance
early in an investigation. The district court stated:

      [I]t does have an effect on timeliness, but I’m not going to use it in my
      mind because I think it kind of penalizes the defendant for exercising
      their right to challenge evidence, and every defendant has a right to do
      it. . . . It doesn’t make him quite as timely as somebody who jumps on
      board, but that’s just one of five factors.

      Mr. Haack’s attorney characterized the lack of timeliness as due to the
government’s policy of denying any opportunity for cooperation following a
defendant’s initial attempt to assert rights. According to Mr. Haack’s attorney, the
government changed its position and offered Mr. Haack the opportunity to cooperate
only after conflicting stories from Tom Clayton and Jose Martinez created a need for
corroborating testimony. In addition, he argued that when the government offered
Mr. Haack the opportunity to cooperate, it needed a witness to testify against Luis
Caballero and Cesar Perez.1

      Regarding Mr. Haack’s truthfulness and the completeness of his cooperation,
the government stated that it had reservations as to whether Mr. Haack had told the
“whole story” about the scope of the conspiracy around Waseca. The government
noted that the full extent of the conspiracy was still not clear and that Mr. Haack
provided information only about the conspiracy’s core members, whom the
government was already investigating.


      1
       We have questions about a policy that requires a defendant to waive a
detention hearing and forego other rights in order to cooperate. However, we
understand that the United States Attorney for the Northern District of Iowa no longer
requires a defendant to waive a detention hearing in order to enter into a cooperation
agreement. Since the district court did not penalize the defendant based on a lack of
timeliness, we do not address the issue of the propriety of such a policy.

                                         -5-
       The district court also questioned Mr. Haack’s attorney about the gun count.
The evidence suggested, and the government’s theory on the gun count was, that Mr.
Haack had placed a 9 millimeter handgun in a bag of marijuana and given it to Tom
Clayton. It is undisputed that officers found a .357 handgun in Mr. Haack’s residence
on the night of the search. Regarding other activity with guns, the district court asked
the government:

      [I]s there any evidence in the discovery file that this defendant carried
      a weapon in furtherance of his drug-trafficking activity other than what
      you’ve already told me about with regard to these two weapons [the 9
      millimeter reported by Tom Clayton and the .357 found during the
      search]?

The government responded that there was no such evidence. The district court then
stated:

      Okay. I’ll tell you something. You know, I am no fan of the guidelines,
      but a 180-month sentence for somebody with a criminal history category
      1 in a marijuana case, I’m not trying to say marijuana ought to be
      legalized or anything like that. I’m just saying, you know, I’ve given
      many outrageous sentences under these guidelines almost all in the drug
      area. He’s not going to get a 180-month sentence because of substantial
      assistance, but just to think that you could for somebody in a criminal
      history category 1, you know, when are people going to wake up and do
      something about these ridiculous United States Sentencing Guidelines?
      ...
      You know, Judge Bright, Myron Bright, on the Eighth Circuit dissents
      on a lot of these cases, and he always ends his dissents with, Is anybody
      listening? And I think the answer is not the right people who have the
      power to change these ridiculous laws. I know you can’t take a position.
      It strikes me as ridiculous that somebody could get a 180-month
      sentence for this crime, these crimes. But you just enforce the law.




                                          -6-
       Following these comments, the government took issue with the district court’s
characterization of the case, noted that this was a large conspiracy that moved “tons
of marijuana, not pounds,” and noted that the location of the conspiracy and drug
trafficking in small-town southern Minnesota made the conspiracy a large impact
problem.

      The court then asked if it would be likely that future assistance from Mr. Haack
might lead to a later Rule 35(b) motion to amend the sentence. The government
responded:

      Based on what the defendant has told us, I would say slim to none. I can
      tell you that a couple of the major players in the case have yet to be
      found, and I believe — this was pursuant to your earlier question. I
      believe that we don’t have an idea of what was going on in Waseca. If
      the defendant could tell us those things, there’s a potential, but based on
      what we know right now, I don’t think there is one.

      Next, the court explored the details of the drug quantity. Mr. Haack plead to
1000 kilograms or more of marijuana. The government noted the sentencing range
was between 1000 and 3000 kilograms and that various witness testimony placed the
quantity of marijuana for the entire conspiracy at about 6000 pounds (over 2700
kilograms). The government, however, took a conservative position and argued for
an offense level commensurate in scope only with the lower, 1000 kilogram plea.

      Finally, the court heard Mr Haack’s apology and request for favorable
treatment. Mr. Haack’s attorney also made an appeal to the court for leniency,
concluding, “But the price that he pays should be related to what he did.” The
following exchange ensued:

      The Court:             In whose eyes?
      Counsel:               In your eyes.


                                         -7-
      The Court:             That’s right, the sentencing commission isn’t
                             up here sentencing the defendant. I am.
      Counsel:               That’s right.
      The Court:             They didn’t take an oath of office. I did.
      Counsel:               That’s right.

       Mr. Haack’s attorney argued that a 70% reduction on the conspiracy count,
from 120 months to 30 months would be appropriate. The district court noted that
Mr. Haack was in criminal history category I, and for the conspiracy count his offense
level was 29. This would have made the guidelines range 87-108 months but for the
120-month mandatory minimum. The gun count carried a mandatory, consecutive
60 months for a total mandatory minimum of 180 months. The district court
sentenced Mr. Haack to the mandatory minimum 60-month term for the gun count,
and 18 months on the conspiracy count. The 18-month sentence on the conspiracy
count represented an 85% departure from the mandatory minimum of 120 months and
a greater departure than even Mr. Haack requested. The 18-month sentence on the
drug count, coupled with the consecutive 60-month mandatory minimum sentence on
the gun count, represented a departure of 57% from the total mandatory sentence of
180 months.

                                         II.

       Prior to the United States Supreme Court decision United States v. Booker, 125
S. Ct. 738 (2005), a government appeal of a sentence that was less than the applicable
guidelines range was governed by 18 U.S.C. § 3742(e). One of the Booker remedial
provisions excised 18 U.S.C. § 3742(e). Booker, 125 S.Ct. at 756-57. In its place,
the Supreme Court held that it is the duty of the reviewing appellate court to
determine if the sentence is unreasonable with regard to 18 U.S.C. § 3553(a). Id. at
765. Since the Booker decision, various appellate and district courts have begun to
wrestle with the issue of how to apply the Booker remedial provisions and how
appellate courts are to go about the business of deciding whether a sentence is

                                         -8-
reasonable. In order to assist the appellate courts in discharging their responsibility
of determining reasonableness, we encourage district courts to follow the procedure
outlined by the Second Circuit in United States v. Crosby, 397 F.3d 103, 113 (2d Cir.
2005), where the court stated:

             Thus, at this point, we can identify several essential aspects
             of Booker/Fanfan that concern the selection of sentences.
             First, the Guidelines are no longer mandatory. Second, the
             sentencing judge must consider the Guidelines and all of
             the other factors listed in section 3553(a). Third,
             consideration of the Guidelines will normally require
             determination of the applicable Guidelines range, or at
             least identification of the arguably applicable ranges, and
             consideration of applicable policy statements. Fourth, the
             sentencing judge should decide after considering the
             Guidelines and all the other factors set forth in section
             3553(a), whether (I) to impose the sentence that would
             have been imposed under the Guidelines, i.e., a sentence
             within the applicable Guidelines range or within
             permissible departure authority, or (ii) to impose a non-
             Guidelines sentence. Fifth, the sentencing judge is entitled
             to find all the facts appropriate for determining either a
             Guidelines sentence or a non-Guidelines sentence.

       Thus, the sentencing court must first determine the appropriate guidelines
sentencing range, since that range does remain an important factor to be considered
in the imposition of a sentence. We, like the Second Circuit, realize that there may
be situations where sentencing factors may be so complex, or other § 3553(a) factors
may so predominate, that the determination of a precise sentencing range may not be
necessary or practical. However, in those cases the court should be careful to identify
potential applicable ranges, the reason why a specific range is not being selected, and
other § 3553(a) factors that predominate. Once the applicable range is determined,
the court should then decide if a traditional departure is appropriate under Part K
and/or § 4A1.3 of the Federal Sentencing Guidelines. Those considerations will

                                          -9-
result in a “guidelines sentence.” Once the guidelines sentence is determined, the
court shall then consider all other factors set forth in § 3553(a) to determine whether
to impose the sentence under the guidelines or a non-guidelines sentence.

       In determining the appropriate guidelines sentencing range to be considered as
a factor under § 3553(a), we see nothing in Booker that would require the court to
determine the sentence in any manner other than the way the sentence would have
been determined pre-Booker. Again, as the Second Circuit stated in Crosby, 397 F.3d
at 112:

             The applicable Guidelines range is normally to be
             determined in the same manner as before Booker/Fanfan.
             Moreover, although the Court in the Substantive Opinion
             prohibits a sentencing judge from finding any facts that
             enhanced a Guidelines sentence above the range that is
             based solely on facts found by the jury in its verdict or
             admitted by the defendant, the Court in its Remedy
             Opinion contemplates that, with the mandatory use of the
             Guidelines excised, the traditional authority of a sentencing
             judge to find all facts relevant to sentencing will encounter
             no Sixth Amendment objection. Thus, the sentencing
             judge will be entitled to find all of the facts that the
             Guidelines make relevant to the determination of a
             Guidelines sentence and all of the facts relevant to the
             determination of a non-Guidelines sentence.

       Applying the principles just articulated to the sentence at hand, we first note
that there is no dispute about the applicable sentencing guidelines range. As
previously indicated, the defendant was facing a mandatory minimum 180-month
sentence. There was also no question that the grounds for the departure were
authorized under § 5K1.1, as well as 18 U.S.C. § 3553(e). Thus, the issue we face is
whether the sentence imposed is a reasonable “guidelines sentence” and, if not,



                                         -10-
whether there are other factors under § 3553(a) that would make the sentence
reasonable.

       In an accompanying case being filed today, United States v. Dalton, No. 04-
1361, we hold that our standard of review is whether the district court abused its
discretion by imposing an unreasonable sentence on the defendant. Our prior
articulations of the abuse of discretion standard are wholly consistent with the
concept of reasonableness as set forth in Booker. See, e.g., Aaron v. Target Corp.,
357 F.3d 768, 774 (8th Cir. 2004) (discussing the abuse of discretion standard in the
context of an abstention decision); Verizon Communications, Inc. v. Inverizon Int’l,
Inc., 295 F.3d 870, 872-73 (8th Cir. 2002) (discussing the abuse of discretion
standard in the context of a decision to stay a declaratory judgment action pending
resolution of a related state court action); Williams v. Carter, 10 F.3d 563, 566 (8th
Cir. 1993) (discussing the abuse of discretion standard in the context of a magistrate
judge’s decision not to appoint counsel and subpoena certain witnesses); Kern v.
TXO Prod. Corp., 738 F.2d 968, 970 (8th Cir. 1984) (discussing the abuse of
discretion standard in the context of a motion to dismiss without prejudice). In Kern,
for example, we stated that when a decision is discretionary, “the court has a range
of choice, and that its decision will not be disturbed as long as it stays within that
range and is not influenced by any mistake of law.” Id. (emphasis added). We also
made it clear that the range of choice is limited. Id. (“when we say that a decision is
discretionary . . . we do not mean that the district court may do whatever pleases it”).
Similarly, reasonableness as a constraint on a district court’s discretion to depart
downward infers a limited range of choice.

       In Kern, we noted that an abuse of discretion may occur when (1) a court fails
to consider a relevant factor that should have received significant weight; (2) a court
gives significant weight to an improper or irrelevant factor; or (3) a court considers
only the appropriate factors but in weighing those factors commits a “clear error of
judgment.” Id. A discretionary sentencing ruling, similarly, may be unreasonable if

                                         -11-
a sentencing court fails to consider a relevant factor that should have received
significant weight, gives significant weight to an improper or irrelevant factor, or
considers only appropriate factors but nevertheless commits a clear error of judgment
by arriving at a sentence that lies outside the limited range of choice dictated by the
facts of the case.

       Applying this standard to the present case, we are left with the firm impression
that the district court reached outside the permissible range of choice and abused its
discretion by departing downward to an “unreasonable degree.”

       Section 3553(e), which allows for the imposition of sentences below the
mandatory minimum, provides, “Such sentence shall be imposed in accordance with
the guidelines and policy statements issued by the Sentencing Commission pursuant
to section 994 of title 28, United States Code.” The relevant sentencing guidelines
and accompanying policy statements are found in U.S.S.G. § 5K1.1, which provides
as follows:

      (a)    The appropriate reduction shall be determined by the court for
             reasons stated that may include, but are not limited to,
             consideration of the following:

             (1)    the court’s evaluation of the significance and usefulness of
                    the defendant’s assistance, taking into consideration the
                    government’s evaluation of the assistance rendered;

             (2)    the truthfulness, completeness, and reliability of any
                    information or testimony provided by the defendant;

             (3)    the nature and extent of the defendant’s assistance;

             (4)    any injury suffered, or any danger or risk of injury to the
                    defendant or his family resulting from his assistance;


                                         -12-
             (5)    the timeliness of the defendant’s assistance.

Id.

      The district court articulated no reasons other than the traditional 5K1.1 factors
and its dissatisfaction with the then-mandatory nature of the Federal Sentencing
Guidelines as justification for the sentence. Accordingly, we examine the
reasonableness of the guidelines sentence against those factors.

        In assessing the five factors outlined in U.S.S.G. § 5K1.1, we concentrate most
closely in this case on the first and third factors, that is, (1) the significance and
usefulness of the assistance and (3) the nature and extent of the assistance. As to the
second factor, truthfulness and completeness, the government has some question
about Mr. Haack’s completeness. However, for purposes of our analysis, we, like the
district court, assume that Mr. Haack was truthful and complete. As to the fourth
factor, there is no evidence that Mr. Haack suffered any injury or that there was any
significant danger or risk of injury as a result of his cooperation. Finally, as
previously noted, we, like the district court, assume that Mr. Haack complied with the
fifth factor and his assistance was timely.

       The government makes much of its argument that, in applying the first of the
five factors above, the district court failed to take into consideration the government’s
evaluation of the assistance rendered. See U.S.S.G. § 5K1.1(a)(1) (“taking into
consideration the government’s evaluation of the assistance rendered”); § 5K1.1 cmt.
n.3 (“Substantial weight should be given to the government’s evaluation of the extent
of the defendant’s assistance, particularly where the extent and value of the assistance
are difficult to ascertain.”). We reject this argument. In our evaluation of the
sentencing transcript, we do not believe the district court failed to take into
consideration the government’s recommendation. Rather, the district court believed
the government’s recommendation did not fully compensate Mr. Haack for the

                                          -13-
significance and usefulness of his assistance. Further, the government’s
recommendation is only a part of one of the five factors to be considered. It is
ultimately the responsibility of the sentencing judge to determine the extent of the
downward departure.2

       We must conclude, however, that the significance and usefulness of the
assistance and its nature and extent in this case were such that the departure was
excessive. The mandatory minimum became the guideline for the conspiracy count,
that is, 120 months, plus an additional 60-month consecutive sentence on the gun
count. The court reduced the total sentence of 180 months to 78 months. Basically,
the cooperation that earned Mr. Haack such a large departure was the information he
gave to law enforcement at the time of his arrest which led to the issuance of a search
warrant of the Perez residence and the availability of Mr. Haack to testify against the
Perezes. In addition, after Haack agreed to cooperate, he provided limited
information about Mr. Martinez and Mr. Caballero as well as information regarding
the Claytons. By that time, however, Mr. Martinez and Mr. Caballero were already
under indictment, and the Claytons, of course, were the suspects who led officers to
Mr. Haack in the first place. Although we cannot say with mathematical precision
how much of a departure should be granted for such cooperation, we conclude that
the district court abused its discretion in departing 102 months off the total sentencing
package of 180 months for such minimal cooperation. A departure of this extent
leaves little room for greater departures for defendants who actually participate in

      2
        The panel deciding this case heard three appeals on the same day from the
United States Attorney’s office involving the same sentencing judge. It is obvious
that the sentencing judge was frustrated by the government’s identical
recommendations of ten percent departures in each of these three dissimilar cases.
We expressed similar concerns to the Assistant United States Attorney who argued
the cases. We had difficulty discerning how three such dissimilar cases could all
result in the identical recommendation for departure. A recommendation by the
government that does not adequately explain its reasoning is entitled to less weight,
in the court’s view, than a more fully explained recommendation.

                                          -14-
controlled buys, wear wires, give grand jury and trial testimony, or are subjected to
significant risk of injury or death to themselves or their family.

       We are also troubled by the district court’s comments which seem to indicate
that the departure was based, at least in part, on an improper or irrelevant factor,
namely, the district court’s dissatisfaction with the sentencing guidelines. One of the
factors discussed in Kern that can show an abuse of discretion is the consideration of
an improper factor. Kern, 738 F.2d at 970. We must conclude that in this case the
court departed, at least in part, based upon the improper factor of its dissatisfaction
with the then-mandatory sentencing guidelines, and not solely on the defendant’s
cooperation.3

       Under the framework we previously articulated, we now turn to the issue of
whether the sentence, as imposed, is a reasonable “non-guidelines sentence” applying
the balance of the § 3553(a) factors. Based on the record before us, we can find
nothing in § 3553(a) which would justify a total sentence of only 78 months. Having
said that, however, we are cognizant of the fact that the court sentenced Mr. Haack
prior to Booker and that neither the parties, nor the court, argued nor articulated non-
guidelines § 3553(a) factors for sentencing. Accordingly, we vacate the sentence as



      3
        We also believe the district court’s comment concerning the Sentencing
Commission was both unnecessary and inaccurate. At the time of sentencing, four
of the seven members of the Sentencing Commission were Article III judges who had
taken the same oath as the district judge in this case. In addition, the Commissioners
themselves take a separate oath to faithfully discharge their responsibilities as
members of the Sentencing Commission. Compare 28 U.S.C. § 453 (oath of office
for judges, and therefore, judicial members of the sentencing commission) with 5
U.S.C. § 3331 (oath of office for individuals “elected or appointed to an office of
honor of profit in the civil service or uniformed services.”).



                                         -15-
an unreasonable guidelines sentence, even allowing for the substantial assistance
departure, and remand for resentencing under Booker’s remedial procedure.
                     ______________________________




                                      -16-
