                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                  ___________

                                  No. 04-2673
                                  ___________

United States of America,              *
                                       *
            Appellant,                 *
                                       * Appeal from the United States
      v.                               * District Court for the
                                       * Northern District of Iowa.
Kim Darby Saenz,                       *
                                       *
            Appellee.                  *
                                  ___________

                             Submitted: March 4, 2005
                                Filed: November 17, 2005
                                 ___________

Before WOLLMAN, BOWMAN, and COLLOTON, Circuit Judges.
                        ___________

COLLOTON, Circuit Judge.

       Kim Darby Saenz pled guilty to one count of conspiracy to distribute
marijuana. At sentencing, the government moved, pursuant to USSG § 5K1.1 and 18
U.S.C. § 3553(e), to reduce her sentence below the applicable sentencing guideline
range of 63 to 78 months and the statutory minimum sentence of 60 months. The
district court granted the motion and sentenced Saenz to 20 months’ imprisonment.
The government appeals the extent of the reduction in sentence, and we reverse.
                                         I.

       Pursuant to a plea agreement with the government, Saenz pled guilty to one
count of conspiracy to distribute marijuana. Saenz was charged after officers
discovered marijuana in two vans located in a parking lot of a hotel in Onawa, Iowa.
Saenz and her husband, Rudolph, were staying in a hotel room directly in front of the
vans, and officers confronted them after finding the marijuana. After the Saenzes
admitted to traveling in one of the vans, they were placed under arrest. A man and
woman, Veronica Rodriguez-Cortez and Jose Rodriguez-Medrano, were staying in
the room next to the Saenzes, and they were also arrrested. When the foursome was
interviewed, law enforcement officers learned that a third vehicle was traveling with
the group. Officers located this vehicle, and a passenger, Christian Jimenez of San
Diego, eventually was charged together with Rodriguez-Medrano.

       Rodriguez-Cortez later testified before the grand jury that Rodriguez-Medrano
had approached her and asked that she transport two vans filled with marijuana from
Chula Vista, California, to Sioux City, Iowa. Rodriguez-Cortez said that she told
Saenz about the trip, and Saenz and her husband drove the second van. Rodriguez-
Medrano urged them to bring their children, in order to disguise the purpose of their
travel, and agreed to pay each of them $2500 for making the trip. Rodriguez-
Medrano, Rodriguez-Cortez, Rudolph Saenz, and Jimenez eventually all pled guilty
to drug trafficking offenses.

       A presentence investigation report recommended a sentencing range of 63 to
78 months’ imprisonment for Ms. Saenz under the then-mandatory United States
Sentencing Guidelines. At sentencing, the government moved to reduce the sentence
under USSG § 5K1.1 and 18 U.S.C. § 3553(e), based on Saenz’s provision of
substantial assistance, and recommended a departure of 30 percent, or 19 months, to
a final sentence of 44 months’ imprisonment.



                                        -2-
       In support of its substantial-assistance motion, the government described
Saenz’s cooperation. According to the government, Saenz talked to law enforcement
officers about her co-conspirators on the same day that she was arrested. Within a
day or two, the information provided by Saenz was used, along with statements
obtained from the co-conspirators, to assist in the preparation of affidavits in support
of criminal complaints. Saenz later testified at the sentencing hearing for Rodriguez-
Medrano, where she corroborated testimony of Rodriguez-Cortez regarding the use
of minors to avoid detection. Saenz also attempted to cooperate with Drug
Enforcement Administration agents in San Diego while she was on pre-trial release,
and assisted with the procurement of one search warrant, but the information that she
provided was outdated and did not lead to any arrests or seizures.

       The court granted the government’s substantial-assistance motions. In the
court’s view, Saenz was “exceptionally timely” in her cooperation and there was “no
indication that she was anything but totally truthful, complete, and reliable and that
she gave them all the information she could.” (S. Tr. at 16). The court also opined
that the government’s percentage recommendations for departures were “arbitrary and
capricious and without any basis because they fail to disclose how they arrive at their
decision.” (S. Tr. at 17). The court expressed its view that “any defendant who is
timely, completely truthful, complete, reliable, and tells the government everything
they need to know deserves more than 50 percent” reduction. (Id.). Citing its
evaluation of the factors set forth in USSG § 5K1.1, the court reduced Saenz’s
sentence to 20 months’ imprisonment.

                                          II.

      We recently reviewed three cases involving the reductions of sentences based
on the provision of substantial assistance, and we set forth certain parameters
regarding appellate review of such sentences. See United States v. Dalton, 404 F.3d
1029 (8th Cir. 2005); United States v. Haack, 403 F.3d 997 (8th Cir. 2005); United

                                          -3-
States v. Pizano, 403 F.3d 991 (8th Cir. 2005).1 These decisions explain that the
court of appeals is charged with considering whether the extent of a reduction in the
now-advisory guideline sentence or below the statutory minimum sentence is
“reasonable,” and that we review the district court’s decision for abuse of discretion.
E.g., Dalton, 404 F.3d at 1032.

       We said in Dalton that “[a]n extraordinary reduction must be supported by
extraordinary circumstances,” id. at 1033, and we find that maxim applicable here.
Departures under § 5K1.1 and reductions under § 3553(e) should not be untethered
from the structure of the advisory guidelines. They take place, rather, within the
framework of an advisory guideline scheme designed to reduce unwarranted sentence
disparities among similar defendants, see 18 U.S.C. 3553(a)(6); United States v.
Booker, 125 S. Ct. 738, 767 (2005), and we are mindful that the Sentencing
Commission has concluded that most adjustments for aggravating or mitigating
circumstances should be in the amount of two, three, or four offense levels. Cf.
United States v. Ferra, 900 F.2d 1057, 1064 (7th Cir. 1990) (“The Commission
prescribes two-level adjustments for relatively serious offense characteristics, and
departures of more than two levels should be explained with a care commensurate
with their exceptional quality.”). In view of this context, we indicated in Dalton that
a 75 percent (or 12-level) downward departure was “extraordinary,” 404 F.3d at 1033,
and cited favorably our observation elsewhere that a 50 percent downward departure
was an “extraordinary sentence reduction.” United States v. Enriquez, 205 F.3d 345,
348 (8th Cir. 2000). The reduction granted to Saenz is in the same category. It



      1
        A fourth panel opinion, United States v. Christenson, 403 F.3d 1006 (8th Cir
2005), was vacated, and the case was reheard by the en banc court. The decision of
the district court ultimately was affirmed by an equally divided court, United States
v. Christenson, 424 F.3d 852 (8th Cir 2005) (en banc), so the panel opinion in
Christenson has no precedential value. See United States v. Spector, 793 F.2d 932,
936 (8th Cir. 1986).

                                         -4-
amounted to the equivalent of an 11-level departure under the advisory guidelines,
and a 68 percent reduction in sentence from the otherwise applicable advisory range.

       The extent of a departure or reduction pursuant to § 5K1.1 or § 3553(e) “can
be based only on assistance-related considerations,” United States v. Pepper, 412
F.3d 995, 998 (8th Cir. 2005), and our review of a reduction for substantial assistance
typically centers on the non-exhaustive list of factors set forth in § 5K1.1, which the
district court should consider in making its determination:

      (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;

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

USSG § 5K1.1(a).

       We are troubled in this case by the district court’s statement that “any
defendant who is timely, completely truthful, complete, reliable, and tells the
government everything they need to know deserves more than 50 percent” in
reduction of sentence from the applicable guideline range. Timeliness and
truthfulness are indeed two of the relevant factors for consideration, but we
respectfully disagree with the district court’s apparent view that a strong showing in
those areas makes reasonable an extraordinary departure or reduction of more than
50 percent, or the equivalent of more than about eight offense levels for this

                                         -5-
defendant, without regard to the nature and extent of the defendant’s assistance, the
significance and usefulness of the assistance, or any danger or risk of injury suffered
by the cooperating defendant. As we said in Haack, “[a] departure of this extent
leaves little room for greater departures for defendants who actually participate in
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.” 403 F.3d at 1005-06.
Conversely, some cooperating defendants present a close question as to whether their
assistance merits a substantial-assistance motion at all, and if United States Attorneys
know that timely and truthful cooperation automatically justifies cutting a sentence
in half when a motion is filed, then it is reasonable to expect that many of these
borderline defendants will fail to qualify when the government makes a “rational
assessment of the cost and benefit that would flow from moving.” Wade v. United
States, 504 U.S. 181, 187 (1992).

       A review of the record in this case shows that while Saenz’s assistance is
reasonably viewed as “substantial,” the nature and extent of her assistance was
relatively limited, the significance and usefulness of her assistance is relatively
modest, and she suffered no apparent danger or risk of injury. Saenz was one of four
persons apprehended at the Onawa motel whose interview led to the arrest of
Christian Jimenez. She testified as a corroborating witness at the sentencing hearing
of Rodriguez-Medrano and provided evidence that supported a two-level adjustment
in his guideline offense level. See USSG § 3B1.4. She tried unsuccessfully to assist
with an investigation of drug trafficking in California. She did not, however, play a
lead role in building a case on another offender, participate in undercover work (such
as by wearing a recording device or making controlled purchases), give testimony in
a grand jury or at a trial, or experience significant risk of injury or death. See Haack,
403 F.3d at 1005-06; Dalton, 404 F.3d at 1033; cf. Pizano, 403 F.3d at 995-96
(affirming as reasonable a 12-level reduction where defendant provided timely and
truthful cooperation, was “key witness” against two co-conspirators, gave testimony
that could be instrumental in seizing assets from money laundering scheme, provided

                                          -6-
debriefings and grand jury testimony regarding both a close family member and a
“major figure” in the conspiracy, and put himself and his family at risk of harm from
“dangerous people” when he testified).

       We recognize that sometimes a defendant’s early cooperation will be so
effective that another person will feel compelled to plead guilty on that basis, thus
obviating the need for the cooperating defendant to provide testimony or perform
other acts of assistance in that matter, and a district court may take account of such
circumstances in evaluating the factors under § 5K1.1. Here, however, Saenz was not
a key witness who helped bring to justice a major criminal figure. She was a
corroborating witness and one of four conspirators who helped to identify a fifth. Of
course, as the district court observed, “[t]he fact that she doesn’t know the
whereabouts of Osama bin Laden is not her fault,” but the proper analysis under
§ 5K1.1(a)(1) focuses on the actual significance and usefulness of the assistance,
regardless of the defendant’s desire, effort, or “fault.” United States v. Davila, 964
F.2d 778, 786 (8th Cir. 1992). A defendant who is eager to cooperate, but in a
position to provide only assistance of no use or modest value, will be limited either
to a reduction under the safety-valve guideline (if her assistance is not deemed to be
“substantial”), see USSG §§5C1.2, 2D1.1(b)(6), or to a substantial-assistance
reduction that must be calibrated to account for the limited significance and
usefulness of the assistance.

      The government stresses, in asserting unreasonableness, that the district court’s
reduction in this case greatly exceeded that recommended by the United States
Attorney, but we are not convinced by that point of argument. It is true, of course,
that the district court must give “[s]ubstantial weight” to the government’s
“evaluation of the extent of the defendant assistance, particularly where the extent
and value of the assistance are difficult to ascertain.” USSG § 5K1.1, comment. (n.
3) (emphasis added); Pizano, 403 F.3d at 996. The government, after all, is often in
a superior position to know whether a particular cooperating defendant provided the

                                         -7-
crucial break in an investigation, or the critical testimony that secured either
convictions or the cooperation of additional material witnesses, so the command for
deference in that regard is quite sensible.

       We are less persuaded that the court must give substantial weight to the
government’s valuation of the assistance, particularly where the government does not
adequately explain its reasoning. Haack, 403 at 1005 n.2; cf. Pizano, 403 F.3d at 996.
While we recognize that a single United States Attorney brings to bear the broad
perspective of one who has evaluated numerous cooperating defendants within a
judicial district (indeed, at least during comparable tenure, a broader perspective than
a single district judge in a multi-judge district), we have no assurance that United
States Attorneys in different districts apply consistent methodologies for valuing
substantial assistance and arriving at sentencing recommendations. Judicial
deference to wildly varying recommendations in different districts would create,
rather than avoid, unwarranted sentence disparities. Even if a consistent practice
were shown within the Department of Justice, we would have to consider whether the
degree of reductions recommended under such an approach would be consistent with
the structure and theory of the guidelines. If, for example, the United States Attorney
in a particular district were to recommend that every defendant who provides timely
and truthful cooperation should receive a sentence reduction of greater than 50
percent, we do not believe such a recommendation would be entitled to “substantial
weight” any more than we think a district court’s application of such a hard-and-fast
rule would be reasonable. Likewise, if a United States Attorney makes identical
recommendations of slight departures in cases that are dissimilar in ways that are
material to the appropriate degree of reduction, then neither are those
recommendations due much weight from the court. Cf. Haack, 403 F.3d at 1005 n.2.

      Our decision in this case, therefore, turns not on the degree to which the district
court’s decision varies from the government’s recommended reduction, but rather on
our independent conclusion that the degree of reduction is not reasonable in light of

                                          -8-
the evidence concerning the defendant’s assistance, the factors set forth in § 5K1.1,
and the overall structure and theory of the guidelines, including the statutory
command to reduce unwarranted sentence disparities. The appropriate degree of
sentencing reduction cannot be calculated with “mathematical precision,” Haack, 403
F.3d at 1005, and there is a range of reasonableness available to the district court in
any given case. On this record, however, we conclude that the district court’s
analysis was flawed by its conclusion that timely and truthful cooperation always
warrants a reduction of more than 50 percent, and that the degree of reduction was
excessive and unreasonable under the circumstances of this case. Accordingly, the
judgment of the district court is vacated, and the case is remanded for resentencing
consistent with this opinion.2
                       ______________________________




      2
         In Haack, although we remanded a similar case for “resentencing under
Booker’s remedial procedure,” 403 F.3d at 1005, we did not discuss in depth whether
or to what extent the advisory guideline scheme announced in Booker and the
authority of a district court to vary from the advisory guideline range based on the
factors listed in 18 U.S.C. § 3553(a) is applicable when a district court acts pursuant
to its limited authority under 18 U.S.C. § 3553(e) to sentence a defendant below a
level established by statute “so as to reflect a defendant’s substantial assistance in the
investigation or prosecution of another person who has committed an offense.” The
parties have not addressed this question on appeal, and we leave the matter to the
district court in the first instance.

                                           -9-
