                     UNITED STATES COURT OF APPEALS
                          for the Fifth Circuit

                  _____________________________________

                               No. 91-9513
                  _____________________________________

                         UNITED STATES OF AMERICA,

                                                             Plaintiff-Appellant,

                                       VERSUS

                            TERRENCE L. SELLERS,

                                                             Defendant-Appellee.

     ______________________________________________________

          Appeal from the United States District Court
              for the Eastern District of Louisiana
     ______________________________________________________
                        (October 2, 1992)

Before REAVLEY, HIGGINBOTHAM, and DUHÉ, Circuit Judges.

DUHÉ, Circuit Judge:

     Terrence     Sellers      pled   guilty    to    drug    offenses,    and   was

sentenced. On appeal, the government challenges Sellers' sentence,

alleging   that     it   was    an    improper       departure    from    statutory

provisions and the Sentencing Guidelines.                Because of the recent

Supreme Court decision Wade v. United States, -- U.S. --, 112 S.

Ct. 1840 (1992), we vacate Sellers' sentence and remand the case

for resentencing.



Background and Procedural History

     Terrence Sellers was apprehended carrying two kilograms of

"crack" cocaine.         He subsequently pled guilty to one count of

possession of cocaine base with intent to distribute.                       See 21

U.S.C. § 841(a)(1) (1988).           Sellers cooperated with the government
by providing information concerning his cohorts in the drug trade,

but no indictments or arrests were made as a result of Sellers'

efforts.

     At Sellers' sentencing hearing, the district court departed

downward from the Sentencing Guidelines.       The court explained that

the departure was justified because (1) the Sentencing Guidelines

did not adequately consider the minimal nature of Sellers' past

offenses, (2) the Sentencing Guidelines did not adequately reflect

Seller's level of culpability, and (3) Sellers had substantially

cooperated with the government.         The government objected to this

departure arguing that Sellers' criminal history did not merit a

downward departure and that it was improper to find that Sellers

rendered substantial assistance without the filing of a U.S.S.G. §

5K1.1 motion.   See 18 U.S.C. § 3553(e) (Supp. 1992).1



Standard of Review

     Our review is narrowly confined by statute.        See 18 U.S.C. §

3742(f) (Supp. 1992).     We must "uphold a sentence unless it is

imposed in violation of the law or as a result of an incorrect

application of the sentencing guidelines, or is a departure from

the guideline   range   and   is   unreasonable."    United   States   v.

Buenrostro, 868 F.2d 135, 139 (5th Cir.), reh'g denied, 873 F.2d


1
    U.S.S.G. § 5K1.1 p.s. explains that: "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."   This Sentencing Guideline provision tracks the
statutory language of 18 U.S.C. § 3553(e) (Supp. 1992).

                                    2
297 (5th Cir. 1989) (en banc), cert. denied, 495 U.S. 923 (1990).

     The Supreme Court's decision in Williams v. United States, --

U.S. --, 112 S. Ct. 1112 (1992), further guides our review.

Williams addressed "whether a reviewing court may affirm a sentence

in which a district court's departure from the guideline range is

based on both valid and invalid factors."         112 S. Ct. at   1118.   If

an appellate court is unable to determine whether the same sentence

would have been imposed had the trial court not relied on the

improper factor(s), a remand is in order.          Id. at 1120-21.



Discussion

     The district court departed from the guideline range for

several reasons.    First, the court held that the criminal history

enhancement provision of the Guidelines distorted the rather minor

nature of Sellers' past offenses.             See R. vol. 3, at 6.       This

departure is arguably within the sentencing court's discretion.

Both 18 U.S.C. § 3553(b) and U.S.S.G. § 5K2.0 permit a departure

where the trial court "finds that there exists an aggravating or

mitigating circumstance of a kind, or to a degree, not adequately

taken   into   consideration   by       the    Sentencing   Commission    in

formulating the guidelines . . . ."            18 U.S.C. § 3553(b) (Supp.

1992); see also Williams v. United States,          -- U.S. --, 112 S. Ct.

1112, 1121 (1992) ("The selection of the sentence from within the

guideline range, as well as the decision to depart from the range

in certain circumstances, are decisions that are left solely to the

sentencing court.   U.S.S.G. § 5K2.0 p.s.").


                                    3
      Likewise, the court found that the sentence indicated by the

Guidelines did not adequately reflect Seller's culpability in the

instant drug trafficking operation.              See R. Vol. 3, at 3.          Cases

discussing departures based on culpability implicate U.S.S.G. §

3B1.2, which provides for an adjustment to the offense level upon

a finding of minimal participation.               See e.g., United States v.

Hewin, 877 F.2d 3, 4 (5th Cir. 1989); Buenrostro, 868 F.2d at 138.

The Third and Ninth Circuits have taken the view that a departure

for minimal participation may still be appropriate even when an

adjustment to the offense level is not warranted.                      See United

States v. Valdez-Gonzales, 857 F.2d 643, 648 (9th Cir. 1992);

United States v. Bierley, 922 F.2d 1061, 1069 (3d Cir. 1990).                  Such

a   departure   is     again    arguably       within    the    district   court's

discretion preserved by 18 U.S.C. 3553(b) and U.S.S.G. § 5K2.0.

The Valdez-Gonzalez court reached this conclusion, reasoning that

            [I]n view of the limited application of the
            section 3B1.2 minimal participant adjustment,
            the Sentencing Commission had failed to
            consider adequately the role of the defendant
            in   conduct  surrounding   the  offense   of
            conviction.    The court thus permitted a
            downward departure analogous to the section
            3B1.2 downward adjustment, but based upon
            defendant's role in events extending beyond
            the offense of conviction.

957 F.2d at 648 (citations omitted).             We do not reach the question

of whether or not such a view is correct.                  The present decision

turns on the narrow issue of departures for substantial assistance.

      The   district    court    held    that    Sellers    was    entitled    to a

downward    departure     because       he    provided    the     government   with

substantial assistance.          See R. vol. 3, at 9.                 Sellers was

                                          4
sentenced before the Supreme Court's decision in Wade v. United

States, -- U.S. --, 112 S. Ct. 1840 (1992).     Wade makes it clear

that absent a § 5K1.1 motion from the government, a downward

departure for substantial assistance is not proper.   See Wade, 112

S. Ct at 1843.2      Because we now have the benefit of Wade, we

conclude the downward departure in Sellers' sentence was based at

least in part on an invalid departure factor.

     As stated earlier, we must uphold a sentence unless it is a

result of an incorrect application of the Guidelines.   The "use of

an invalid departure ground is an incorrect application of the

Guidelines."   Williams v. United States, -- U.S. --, 112 S. Ct.

1112, 1119 (1992).     Once a determination has been made that a

district court departed from the Guidelines on an invalid basis, a

remand is appropriate unless the reviewing court concludes that the

district court would have imposed a similar sentence without the

invalid departure factor.    See Williams, 112 S. Ct. at 1120-21.

Rather than engaging in such a speculative exercise, we remand the

case to the district court for resentencing.



Conclusion

     A departure from the Sentencing Guidelines based on the

2
    The Wade Court held that there may be occasions when a
prosecutor's decision not to file a § 5K1.1 substantial assistance
motion may be reviewed by the trial court. When the prosecution's
refusal to     request   such  a   downward   departure   rests  on
unconstitutional foundations, e.g., a defendant's race or religion,
then the trial court may properly depart for substantial assistance
without the prerequisite § 5K1.1 motion. Wade, 112 S. Ct. at 1843-
44. Such is not the case here, however, and the government motion
requirement is applicable.

                                 5
defendant's substantial assistance to the government requires a

U.S.S.G. § 5K1.1 motion.     Because the trial court relied on a

departure ground invalidated by Wade, we VACATE the sentence and

REMAND the case for resentencing.

     VACATED and REMANDED.




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