                         United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
           ___________

           No. 04-2901
           ___________

United States of America,              *
                                       *
            Appellant,                 *
                                       *
      v.                               *
                                       *
Travis Ray Burns,                      *
                                       *
            Appellee.                  *
                                       *
           ___________
                                           Appeals from the United States
           No. 04-2933                     District Court for the
           ___________                     Northern District of Iowa.

United States of America,             *
                                      *
            Appellee.                 *
                                      *
      v.                              *
                                      *
Travis Ray Burns,                     *
                                      *
            Appellant.                *
                                 ___________

                            Submitted: September 27, 2006
                               Filed: August 27, 2007
                                ___________
Before LOKEN, Chief Judge, BRIGHT, WOLLMAN, ARNOLD, MURPHY, BYE,
      RILEY, MELLOY, SMITH, COLLOTON, GRUENDER, and BENTON,
      Circuit Judges, En Banc.
                               ___________

WOLLMAN, Circuit Judge.

       The United States appealed as excessive the downward departure granted by the
district court for Burns’s substantial assistance. Burns cross-appealed, arguing that
the district court erred by selecting an incorrect guidelines range as a departure
starting point. After a divided panel of this court affirmed, United States v. Burns,
438 F.3d 826 (8th Cir. 2006), we granted the government’s petition for a rehearing en
banc and vacated the panel opinion. We now reverse the district court’s departure and
affirm its starting point.

                                         I.

       Burns was indicted on one count of conspiracy to manufacture and distribute
fifty grams or more of methamphetamine in violation of 21 U.S.C. §§ 841(a)(1),
841(b)(1)(A), and 846. The government notified Burns of its intention to seek
enhanced penalties under 21 U.S.C. § 851 that would subject him to a mandatory life
sentence. In the absence of the § 851 enhancement, Burns faced a sentencing range
of 188 to 235 months. Burns cooperated with the government and the government,
in return, moved for a downward departure under United States Sentencing Guidelines
Manual (U.S.S.G.) § 5K1.1 and 18 U.S.C. § 3553(e).

      At sentencing, the government told the court that Burns had immediately
admitted his involvement and had been debriefed on two separate occasions,
providing detailed information on several groups involved in manufacturing
methamphetamine. The court was also made aware that Burns had testified on two
occasions before the grand jury and had provided information pertaining to several


                                         -2-
ongoing investigations. His cooperation assisted the government in establishing drug-
quantity evidence against one defendant, Brad Messerly. In addition, Burns served
as a key witness against a second defendant, Victor DeFoe, thereby enabling the
government to obtain an indictment which led to a guilty plea. The government
characterized Burns’s cooperation as timely, truthful, and complete and recommended
a 15 percent departure from a 360-month sentence.

       The district court rejected the government’s recommendation and departed 60
percent to 144 months. The court summarized its consideration of the § 5K1.1 factors
as follows:

      I’m going to use 360 months as a starting point. In this case I
      specifically find under the 5K1.1 factors, factor number 5, the timeliness
      of the defendant’s assistance, the defendant was exceptionally timely in
      this case. My understanding is he started cooperating as soon as he was
      arrested. To me that’s exceptional timeliness. While some defendants
      start that early, virtually no defendants start earlier than that . . . .

      So I find that his timeliness was exceptional and apparently started
      cooperating before he was advised of the impact of the United States
      Sentencing Guidelines, before he knew anything about how the
      guidelines might affect his sentence, before he exercised his Sixth
      Amendment right to have counsel present. So I think in this case the
      fifth factor weighs very heavily in favor of the defendant . . . .

      Number 4 does not apply, any injury suffered or danger of risk because
      I haven’t heard anything about that.

      Number 3, the nature and extent of the defendant’s assistance, in this
      case based on the representations of the assistant U.S. attorney, I find
      that the defendant provided every single bit of information he knew, so
      you couldn’t–the extent of the defendant’s assistance could not be
      greater in the sense that he provided all of the information he knew.



                                         -3-
Now, it’s true that some defendants have greater information which leads
to indictments of more people. But I don’t think that’s necessarily the
test. I think the test is did the defendant provide substantial assistance
on everything he knew, and in this case he did. So the defendant scores
very highly on the third prong.

Defendant scores very highly on the second prong, truthfulness,
completeness, and reliability of the information. There’s no information
that the defendant’s substantial assistance was anything but a hundred
percent complete, a hundred percent truthful, and a hundred percent
reliable. So Mr. Burns scores very highly on the second prong.

[T]he first prong is the Court’s evaluation of significance and usefulness
of the defendant’s usefulness taking into consideration the government’s
evaluation of the assistance rendered. Here the government has indicated
that the defendant testified twice in front of the grand jury, that he
established the drug quantity on one defendant and led to the indictment
and guilty plea of another defendant. I find that that was both very
significant and very useful.

Now for some reason which the government refuses to disclose, they
only recommend 15 percent, but they won’t tell me why they only
recommend 15 percent. And the government refuses to indicate how any
one of the five 5K1.1 factors affect the 15 percent recommendation.

So while I do take into consideration the government’s evaluation of the
significance and usefulness, it’s hard to put any weight on the 15 percent
recommendation because the government refuses to disclose how they
arrive at that recommendation.

And looking back on the other sentencings that I’ve had, that
recommendation is in my view substantially lower than other
recommendations the government has made for similarly situated
defendants.

Having said all that, I have the independent right under 5K1.1 to evaluate
the substantial assistance based on the 5K1 factors as I see it.


                                   -4-
      Having taken into consideration the fact that the defendant scores very,
      very highly on the second factor, the third factor, and the fifth factor, I’m
      going to reduce the defendant’s sentence substantially beyond what the
      government recommends in this case. That ought to come as no surprise
      to the government because I have a ten-year history of doing that
      because I just evaluate the five factors differently than–than how the
      government does, and the government refuses to disclose how they do
      it to me.

Sent. Tr. at 12-15.

       On appeal, the government argues that the district court ignored its
recommendation for a 15 percent departure and that the court’s 60 percent (ten offense
level) departure was excessive in light of Burns’s assistance. Burns cross-appeals,
arguing that the district court should have departed from the 188 to 235 month
guidelines range instead of from the 360-month presumptive life sentence.

                                           II.

      When determining a sentence, the district court must first ascertain the
governing guidelines range, then consider any permissible departures within the
guidelines’s structure, and finally, post-Booker, decide whether a non-guidelines
sentence is more appropriate under the circumstances. See United States v. Haack,
403 F.3d 997, 1002-03 (8th Cir.), cert. denied, 546 U.S. 913 (2005). This case comes
before us on appeal of the district court’s guidelines departure and not from a post-
Booker variance. We apply an abuse of discretion standard when we review for
reasonableness the extent of a district court’s sentence reduction below the sentencing
guidelines or beneath the mandatory minimum sentence. See, e.g., United States v.
Dalton, 404 F.3d 1029, 1032 (8th Cir. 2005); United States v. Saenz, 428 F.3d 1159,
1161-62 (8th Cir. 2005); United States v. Mashek, 406 F.3d 1012, 1017 (8th Cir.
2005).


                                          -5-
       A § 3553(e) motion permits the court to sentence below a statutory minimum
and a motion under § 5K1.1 authorizes the sentencing court to depart below the
applicable advisory guideline range in determining the advisory guideline sentence.
See United States v. Williams, 474 F.3d 1130, 1131 (8th Cir. 2007) (citing Melendez
v. United States, 518 U.S. 120, 128-29 (1996)). Where, as here, a district court
imposes a sentence below the statutory minimum in response to a § 3553(e) motion,
the departure must be based “exclusively on assistance-related considerations.” Id.
at 1130-31. Although § 5K1.1 provides assistance-related factors that a district court
may consider, it is not an exhaustive list. Dalton, 404 F.3d at 1033. The § 5K1.1(a)
factors include:

      (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.

U.S.S.G. § 5K1.1(a).

      A district court abuses its discretion by issuing a ruling that 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. Haack, 403 F.3d
at 1004.

      We noted in Saenz that “[d]epartures under § 5K1.1 and reductions under §
3553(e) should not be untethered from the structure of the advisory guidelines.”

                                          -6-
Saenz, 428 F.3d at 1162; see also United States v. Cammisano, 917 F.2d 1057, 1064
n.5 (8th Cir. 1990) (stating that to the extent possible, the extent of departure should
be linked to the structure of the guidelines). Because departures and reductions based
on § 5K1.1 and § 3553(e) appear contextually within a scheme designed “to reduce
unwarranted sentence disparities among similar defendants,” Saenz, 428 F.3d at 1162,
and because the Sentencing Commission’s sentence adjustments for mitigating or
aggravating factors fall close to the recommended guidelines, “[a]n extraordinary
reduction must be supported by extraordinary circumstances.” See id. (alteration in
original) (quoting Dalton, 404 F.3d at 1032); see also United States v. Maloney, 466
F.3d 663, 668 (8th Cir. 2006) (“‘[A]bsent exceptional facts,’ imposition of a sentence
that is ‘dramatically lower than that recommended by the guidelines is an abuse of the
district court’s discretion.’” (alteration in original) (quoting United States v. Goody,
442 F.3d 1132, 1134 (8th Cir. 2006), petition for cert. filed (U.S. Aug. 14, 2006) (No.
06-6079))). We note that under the Seventh Circuit’s measure of reasonableness, “the
standard is whether the district court’s explanation is sufficiently proportional to the
extent of the variance from the guidelines range; in other words, ‘the greater the
deviation, the more compelling the district court’s explanation must be.’” United
States v. Repking, 467 F.3d 1091, 1095 (7th Cir. 2006) (per curiam) (quoting United
States v. Wallace, 458 F.3d 606, 613 (7th Cir. 2006), petition for cert. filed (U.S. Nov.
13, 2006) (No. 06-7779)). Likewise, we have observed while evaluating the departure
from a presumptively reasonable guidelines range that “the farther the district court
varies from the presumptively reasonable guidelines range, the more compelling the
justification . . . must be.”1 United States v. McMannus, 436 F.3d 871, 874 (8th Cir.
2006); see also Maloney, 466 F.3d at 668; United States v. Bryant, 446 F.3d 1317,
1319 (8th Cir. 2006); United States v. Gonzalez-Alvarado, 477 F.3d 648, 650 (8th Cir.




      1
       We observe that, following Rita v. United States, 127 S. Ct. 2456, 2465 (2007),
the presumption of reasonableness for a sentence within a properly calculated
guidelines range exists only at the appellate level.

                                          -7-
2007).2 In sum, our extraordinary reduction/extraordinary circumstances formulation
requires circumstances of a strength proportional to the extent of the deviation from
reductions envisioned by the guidelines’s structure. As discussed below, under this
proportionality standard, Burns’s ten-level and 60 percent reduction exceeds the
bounds of reasonableness.

       We are mindful that the appropriate degree of sentencing reduction cannot be
calculated with mathematical precision and that there is a range of reasonableness
available to the district court in any given case. Saenz, 428 F.3d at 1164-65. It may
be that we have placed too great an emphasis on numerical or percentage lines in
conducting the reasonableness inquiry with respect to sentencing reductions. Cf.
United States v. Jensen, Nos. 06-2284, 06-6249, 2007 WL 1837018, at *3 (8th Cir.
June 28, 2007) (explaining why guidelines range levels may be a metric superior to
percentages when establishing a life sentence departure point); Wallace, 458 F.3d at
613 (explaining the Seventh Circuit’s reluctance to “distill the reasonableness inquiry
into a numbers game”); Maloney, 466 F.3d at 668 (same). It may also be that the use
of the term “extraordinary” suggests a false dichotomy. The term as applied to
reductions should not be read to suggest a true dichotomy in which the location of an
imaginary line demarcating “ordinary” from “extraordinary” may be divined by a



      2
        Even though a similar analysis has thus far been used to weigh the
reasonableness of substantial assistance departures and of post-Booker variances, we
do not mean to suggest through our citations to both types of sentencing cases that the
substantial assistance departure standard should always, going forward, mirror the
variance standard. Because post-Booker variances must be reasonable with regard to
§ 3553(a), while substantial-assistance reductions are considered under the rubric of
the sentencing guidelines or of § 3553(e) (which itself is not affected by Booker, see
United States v. Williams, 474 F.3d 1130, 1132 (8th Cir. 2007)), the general analytical
approaches and associated standards may diverge. We do not now consider whether
the analysis should diverge. Nevertheless, we emphasize here that the present case is
entirely a substantial assistance departure case.

                                         -8-
statistical inquiry.3 Rather than representing a term of art with unique legal
significance, the “extraordinary” label more accurately serves as a convenient
characterization of departures that we have considered particularly large relative to the
two to four offense level adjustments generally envisioned by the structure of the
sentencing guidelines for mitigating or aggravating circumstances.4 Saenz, 428 F.3d
at 1162 (“[T]he Sentencing Commission has concluded that most adjustments for
aggravating or mitigating circumstances should be in the amount of two, three, or four
offense levels.”).

       In conducting the proportionality analysis, consideration of the offense levels
traversed by the departure may be the method most “in keeping with our assigned role
to further the objectives of the Sentencing Reform Act, because the guideline system
established by the Act was designed to adjust sentences incrementally by offense
level, rather than by percentages.” Maloney, 466 F.3d at 668 (finding unreasonable
a variance amounting to a seven-offense-level reduction from a life sentence); see also
Wallace, 458 F.3d at 613 (“The percentage reduction will always seem larger if the
overall number is a small one: 24 months less than a possible sentence of 25 months
would be a 96% reduction; 24 months less than a possible sentence of 240 months
would be a 10% reduction.”). Nevertheless, evaluation by percentage may still be
useful at times. Maloney, 466 F.3d at 668. Regardless of the method used, because
Burns is a criminal history category IV offender, the departure from 360 to 144
months effectively constitutes a ten-level and 60 percent reduction that must be


      3
        Instead of relying on aggregate statistics, when there is any uncertainty
concerning the strength of circumstances required to justify a given departure level,
the strength of the particularized circumstances present in, or required by, prior
decisions dealing with comparable departures should be given controlling weight.
      4
       Accordingly, our observation that extraordinary departures require
extraordinary circumstances should be read to represent a shorthand for a generally
applicable proportionality principle despite the fact that the literal terminology
involved may facially appear limited to the largest of departures.

                                          -9-
considered a substantial deviation. See, e.g., Jensen, 2007 WL 1837018, at *4 (citing
recent cases and their associated extraordinary reductions in terms of guideline levels);
United States v. Meyer, 452 F.3d 998, 1001 (8th Cir. 2006) (citing numerous recent
Eighth Circuit decisions in which departures or variances above 50 percent were
considered extraordinary), petition for cert. filed (U.S. Nov. 27, 2006) (No. 06-8085);
Dalton, 404 F.3d at 1033 (finding a 75 percent (or twelve level) departure
extraordinary); see also Saenz, 428 F.3d at 1162 (holding that a 68 percent (or eleven
level) departure was unreasonable and noting that a 50 percent (or eight level)
departure would be extraordinary); cf. United States v. Nelson, 491 F.3d 344, 347 (7th
Cir. 2007) (endorsing district judge’s comment that a 40% reduction for substantial
assistance was “extremely generous” and a “rare beast,” as a 20% reduction was
“more common based on sentences that he and other judges have imposed.”).

       Extraordinary circumstances are infrequently found and involve assistance
going well beyond that provided by other defendants. When we have found the
presence of circumstances with a strength proportional to a departure of the magnitude
granted here, the assistance was of a quality that could not reasonably be characterized
as anything but extraordinary. Cf. United States v. Pizano, 403 F.3d 991, 995-96 (8th
Cir. 2005) (providing timely and truthful cooperation, serving as a “key witness”
against two co-conspirators, giving testimony that could be instrumental in seizing
assets from a money laundering scheme, submitting himself to debriefings and
providing grand jury testimony regarding both a close family member and a “major
figure” in the conspiracy, and putting himself and his family at risk of harm from
“dangerous people” by testifying). Determinations of the value of the assistance for
any given circumstance must be viewed in light of the entire continuum of defendant
behavior associated with that circumstance. See United States v. Coyle, 429 F.3d
1192, 1193 (8th Cir. 2005). Requiring more qualitatively impressive substantial
assistance to justify progressively larger departures furthers the goal of reducing
unjustified sentencing disparities and yet recognizes that situations exist at the



                                          -10-
tapering edge of the assistance bell-curve that justify departures that substantially
exceed the Sentencing Guidelines’s range.

                                          III.

       The district court informed its departure by considering only the § 5K1.1(a)
factors. We look, then, first at whether the court abused its discretion as it considered
and weighed the circumstances of Burns’s assistance and whether the district court’s
60 percent (ten level) departure was reasonable given the circumstances present. We
then address Burns’s contention that the district court departed from the incorrect
guidelines range.

                                           A.

       The district court cites Burns’s immediate and unceasing cooperation from the
moment of his arrest, the truthfulness and completeness of the information he shared,
and his testifying twice before a grand jury as constituting “very, very” strong
showings on three of the five § 5K1.1(a) factors and as warranting an extraordinary
60 percent departure. With all due respect to the court’s reasoning, we conclude that
the court applied improper tests to determine the weight of the circumstances for each
of the three factors relied upon.

      First, the district court improperly analyzed the timeliness of Burns’s assistance
under the fifth §5K1.1(a) factor. The court found the timeliness and completeness of
Burns’s cooperation exceptional because few defendants cooperated fully in a more
timely fashion than did Burns. Although few defendants may participate earlier than
did Burns, if a sufficient number participate in a similarly timely manner, Burns’s




                                          -11-
participation could not be viewed as extraordinary.5 The court’s premise, therefore,
excluded Burns from the ranks of the most extraordinarily timely defendants, while
it remained silent regarding how his individual timeliness compares to that of the
remainder of cooperating defendants, resulting in an overvaluation of his timeliness.
Furthermore, we have previously reversed extraordinary departures under conditions
of comparable timeliness where such timeliness did not yield a discernibly beneficial
result. See Saenz, 428 F.3d at 1162-63 (noting that the timeliness of the defendant’s
full cooperation did not, in and of itself, compel anyone else to plead guilty).

       For similar reasons, we cannot agree with the district court that the truthfulness
and completeness of Burns’s assistance constitutes a circumstance warranting a 60
percent departure under § 5K1.1(a)(2). The safety-valve provision of § 5C1.2(a)(5)
of the Sentencing Guidelines provides a sentencing reduction for a defendant who, by
the time of sentencing, “has truthfully provided to the Government all information and
evidence the defendant has concerning the offense or offenses . . . .” U.S.S.G. §
5C1.2(a)(5). This guidelines section, and the underlying statute, 18 U.S.C. § 3553(f),
permit relief from mandatory minimum sentences so long as the defendant provides
the government all information that he has, regardless of its usefulness. Given the
frequency with which defendants provide honest and complete assistance in
compliance with § 5C1.2(a)(5) or with the hope that the government will enable an
increased departure by making a § 5K1.1 or § 3553(e) motion, Burns’s honesty and
the completeness of his assistance can hardly be viewed as so exceptional as to merit
the reduction he received.6 We are skeptical whether complete truthfulness could ever

      5
       There is reason to believe this is the case. The district court’s conclusion fails
to consider the government’s unaddressed and uncontested insistence that many
defendants cooperate in a similarly timely fashion.
      6
       The government also alleges that the district court abused its discretion by
adhering to its bright-line rule of granting a 50 percent minimum departure for any
defendant supplying entirely truthful, complete, and reliable assistance. In Saenz, we
rejected this bright-line rule in part because to allow it would deter the government

                                          -12-
warrant a departure of this magnitude in a substantial-assistance context – even where
the defendant could not have offered more complete or more honest assistance. See
Saenz, 428 F.3d at 1163 (“we respectfully disagree with the . . . view that a strong
showing in [timeliness and completeness] makes reasonable an extraordinary
departure or reduction of more than 50 percent, or the equivalent of more than about
eight offense levels for this 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.”). Accordingly, although
Burns’s honesty and completeness might help to justify a more favorable departure
than that recommended by the government, the district court abused its discretion by
according that factor the undue weight that it did.

       The district court also supported its departure on the basis of an improper
analysis of the “nature and extent” factor – § 5K1.1(a)(3). It applied a test that
compared Burns’s assistance to the assistance it speculatively believed the defendant
capable of providing. Such a test invites sentencing disparities in contravention to the
Sentencing Guidelines’s stated “goal [of] ‘reduc[ing] unjustified disparities[, thereby]
reach[ing] toward the evenhandedness and neutrality that are the distinguishing marks
of any principled system of justice.’” United States v. Petersen, 276 F.3d 432, 439
(8th Cir. 2002) (quoting Koon v. United States, 518 U.S. 81, 113 (1996)). Under the
district court’s test, two defendants providing objectively identical assistance might
well receive different departures based entirely on the respective judge’s speculative
conjectures. Just as “the proper analysis under § 5K1.1(a)(1) focuses on the actual
significance and usefulness of the assistance, regardless of the defendant’s desire,


from moving for sentence reductions in otherwise borderline assistance cases. Saenz,
428 F.3d at 1163. Although the district court did not mention the 50 percent departure
rule at Burns’s sentencing hearing, we cannot say with certainty that the rule did not
affect the district court’s thinking. Accordingly, we restate here our conclusion in
Saenz that any reliance on the bright-line rule would also amount to an abuse of
discretion.

                                         -13-
effort, or ‘fault[,]’” Saenz, 428 F.3d at 1163-64, the proper analysis under §
5K1.1(a)(3) focuses on the nature and extent of the actual, discrete, and specific
activities constituting the assistance, regardless of the opportunities available or the
defendant’s willingness and ability to provide more. Cf. United States v. Mills, 329
F.3d 24, 34 (1st Cir. 2003) (upholding the district court’s recognition of only the
defendant’s activities in focusing on the nature and extent of the defendant’s
assistance). Among the § 5K1.1(a) factors, the “nature and extent” and “significance
and usefulness” considerations are particularly noteworthy for their inclusion of a
broad spectrum of conduct. See U.S.S.G. § 5K1.1, cmt. background (isolating the two
factors based on their breadth). Accordingly, even though Burns appeared before two
grand juries, any departure granted to him premised on this factor must allow room
for more substantial and extensive assistance. See Saenz, 428 F.3d at 1163 (implying
that any combination of listed activities set forth as examples would represent more
substantial and extensive assistance than the cooperation present). While the nature
and extent of Burns’s assistance was not inconsiderable, it did not qualitatively justify
the reduction awarded.

      We conclude, then, that the departure exceeded that which was justified by the
circumstances.7 The district court did not merely reduce the sentence by, say, 20 or

      7
        In reaching this conclusion, we have considered and find to be without merit
the government’s allegation that the district court failed to give substantial weight to
the government’s evaluation. The commentary to § 5K1.1 requires that “substantial
weight” be given to the government’s evaluation of the extent of the assistance.
U.S.S.G. § 5K1.1 cmt. n.3. The government’s recommendation is not controlling,
however, and it is the district court’s responsibility to determine an appropriate
reduction. Haack, 403 F.3d at 1005. Although the district court stated that “it’s hard
to put any weight on the 15 percent [recommendation of the government],” we
conclude that the court overcame its reluctance and accorded the government’s
evaluation substantial weight, for the court ultimately justified its departure by citing
the strength of factors other than § 5K1.1(a)(1) despite its stated inclination to weigh
the significance of Burns’s assistance heavily in his favor. Furthermore, the district
court’s comments indicate that it fully considered that which it could make out of the

                                          -14-
30 percent, but by 60 percent. This equated to a reduction of not, say, three to five
offense levels, but ten levels. Given the sizeable qualitative difference between the
totality of the assistance provided by Burns and that provided by Pizano, to uphold a
reduction so far removed from the presumptively reasonable guidelines range would
frustrate our goal of preventing departures from becoming untethered from the
structure of the guidelines and would not reflect any meaningful sense of
proportionality. As was the case in Coyle, there is also here “a good deal of room
between the government’s modest recommendation and the district court’s generous
departure to recognize this defendant’s assistance without at the same time skewing
the degree of reduction that must be granted to future defendants whose performance
on the continuum of substantial assistance deserves more credit than [Burns’s].”
Coyle, 429 F.3d at 1194.

                                         B.

       Finally, we reject Burns’s contention on cross-appeal that the district court
departed from the wrong guidelines range. Even though Burns acknowledges that he
was subject to a mandatory life sentence, he contends that the government’s filing of
a substantial assistance motion “waived” the mandatory life sentence, leaving the
district court with a sentencing range of 188 to 235 months from which to depart. We
do not agree. As the panel opinion held, the government’s substantial assistance
motion did no more than permit the district court to sentence below the mandatory life
sentence and did not negate the § 851 enhancement that made Burns eligible for a life




government’s evaluation. Cf. Haack, 403 F.3d at 1005 n.2 (stating that opaque
government recommendations deserve less weight). We do not consider final
departures substantially at variance with unexplained government recommendations
to be de facto proof of discretionary abuse.


                                        -15-
sentence. Burns, 438 F.3d at 831. Accordingly, the district court properly departed
from a presumptive life sentence of 360 months.8

      The sentence is vacated, and the case is remanded to the district court for
resentencing consistent with the views set forth in this opinion.

BRIGHT, Circuit Judge, with whom BYE, Circuit Judge, joins, dissenting in part and
concurring in part.

      I concur in Judge Bye’s well-reasoned and thoughtfully written dissent. Judge
Bye has capably discredited the majority’s statistically inaccurate and potentially
harmful “extraordinary” standard for substantial assistance departures. Moreover, he
has carefully described the level of assistance Burns provided to justify the district
court’s departure. I write separately to express my views because I rely on a more
pragmatic approach than statistical comparisons. For these additional reasons, I
dissent from the majority’s decision to vacate the sentence. I concur in the majority’s
decisions as to the calculation of the Sentencing Guidelines starting point.9




      8
       We note that prior panels have held that it was not erroneous for district courts
to use starting points in excess of 360 months when departing from life sentences.
See, e.g., United States v. Keller, 413 F.3d 706, 711 (8th Cir.) (470 months), cert.
denied, 546 U.S. 1053 (2005); United States v. Selby, 184 Fed. Appx. 589, 591 (8th
Cir. 2006) (unpublished per curiam) (405 months); see also United States v. Jensen,
Nos. 06-2284, 06-6249, 2007 WL 1837018, at **3-4 (8th Cir. June 28, 2007)
(expressing doubt about the adequacy of a 360-month starting point). Because the
government has not appealed the 360-month starting point, we do not address the
appropriateness of departing from a presumptive life sentence at, or in excess of, 360
months.
      9
       Although I concur in the majority’s affirmance of a 360-month starting point
for Burns’s life sentence, I note that I believe this measure appropriate only in cases
where 360 months does not exceed the actual life expectancy of the defendant.

                                         -16-
                                           I.

       The majority of my colleagues today grant more deference and discretion to
prosecuting attorneys than to the district judges of this country. That is what is
“extraordinary” in this case, not the departure afforded Burns by the district court.
The majority opinion is itself “extraordinary” because it perpetuates a stringent and
feckless standard for departures not based in the Federal Sentencing Guidelines. This
court’s efforts to micro-manage the district court’s sentencing function rest on the
slippery surface of a myth – the myth that circumscription of departures in this manner
will reduce unwarranted sentencing disparity.

                                          II.

       “Extraordinary” is a meaningless word unless one describes what is “ordinary.”
Although the court rhetorically attempts to avoid describing “ordinary” by reference
to statistics or as a bright line, the majority continues to give the impression that it
views with nearly unsurmountable skepticism a departure in excess of fifty percent.
The court cites only one case when it has affirmed a downward departure for
substantial assistance in excess of fifty percent: United States v. Pizano, 403 F.3d 991
(8th Cir. 2005). By contrast, in its opinion today alone, the court cites three cases in
which it has reversed a substantial assistance departure above fifty percent. See
United States v. Coyle, 429 F.3d 1192, 1193-94 (8th Cir. 2005) (reversing seventy-
three percent substantial assistance departure); United States v. Saenz, 428 F.3d 1159,
1162, 1165 (8th Cir. 2005) (vacating sixty-five percent departure); United States v.
Dalton, 404 F.3d 1029, 1031, 1034 (8th Cir. 2005) (reversing a seventy-five percent
substantial assistance departure); cf., United States v. Haack, 403 F.3d 997, 1005-06
(8th Cir.), cert. denied, 126 S. Ct. 276 (2005) (vacating forty-three percent departure
from 180 months to seventy-eight months). The court’s “proportionality principle”
in practice creates an unjustified normative baseline for departures at a two to four
level adjustment and the impression of a ceiling at fifty percent. Any district judge

                                         -17-
aware of these cases would discern that our court only rarely affirms a sentence
exceeding these measures. See, e.g., United States v. Jensen, Nos. 06-2284, 06-2497,
2007 WL 1837018, at *4 (8th Cir. June 28, 2007) (affirming six level downward
departure); United States v. Christenson, 424 F.3d 852 (8th Cir. 2005) (en banc)
(affirming seventy-five percent downward departure).

        Moreover, the baseline established by the majority relies on out of context
statistics and percentages for what the Guidelines dictate should be a discretionary and
individualized inquiry.10 Statistics should be used for illumination, not for support.11
The background commentary to the Guidelines’ provision § 5K1.1 relating to
substantial assistance departures sets forth that the “significance of assistance can
involve a broad spectrum of conduct that must be evaluated by the court on an
individual basis.” U.S.S.G. § 5K1.1, cmt. background (emphasis added). The
majority’s comparative endeavor is therefore misguided. Furthermore, the
background commentary of § 5K1.1 also states: “Latitude is, therefore, afforded the
sentencing judge to reduce a sentence based upon variable relevant factors . . . .” Id.
By this language, the Guidelines endorse a sentencing court’s discretion to consider
these factors.



      10
          The majority claims to eschew reliance on aggregate statistics. However, the
majority notes that “prior decisions dealing with comparable departures should be
given controlling weight” and analyzes the nature of Burns’s departure by comparing
it to prior percentages rejected by this court as extraordinary. The effect of this type
of analysis is akin to placing Burns’s departure on a line graph alongside other
percentages and engaging in a statistical comparison rather than an individualized
consideration of the defendant’s assistance. Moreover, if such a comparison is valid,
should it not be raised in the prosecutor’s presentation to the district court rather than
for the first time on appeal?
      11
        “He uses statistics as a drunken man uses lamp-posts – for support rather than
illumination.” Attributed to Andrew Lang, quoted in Alan L. Mackay, Scientific
Quotations: The Harvest of a Quiet Eye (1977).

                                          -18-
       The subtext of the majority’s opinion is a disdain for downward departures.12
The majority’s disfavor for downward departures is demonstrated by their recitation
of the word “extraordinary.” By their own words, the majority considers the reduction
of a sentence beyond the government’s recommendation without any data to be an
exceptional event.

      This disfavor for downward departures cannot be found in the Guidelines.
There is no mention in the Guidelines of a substantial assistance departure being
exceptional regardless of its magnitude. In fact, the Commission provides sentencing
judges various avenues for both upward and downward departures when warranted.
See, e.g., U.S.S.G. § 5K2.0(a)(3)-(4) (permitting departures for circumstances not
already adequately taken into consideration and characteristics not ordinarily
relevant). It is this court, not the Sentencing Guidelines, that have rarified such
departures.

       The majority holds that the exceptional nature of a departure over fifty percent
is based on the Guidelines’ two, three, or four offense level adjustments for
mitigating or aggravating circumstances. That the Sentencing Commission
specifically delineated in § 3B1.1 (aggravating role) and § 3B1.2 (mitigating role)
offense level increases or decreases should discourage this court from circumscribing
the degree of substantial assistance departures when the text of the Guidelines does
not provide similar limitations. As also noted by Judge Bye, there is no warrant for
imposing the levels proscribed by § 3B1.1-2 on Part K. The specific mention of the


      12
        Notably, as mentioned by Judge Bye, the line of cases cited in the majority’s
opinion begins to resemble that previously described by Judge Heaney, where he notes
this court’s trend in reversing downward departures. See, e.g., United States v.
Meyer, 452 F.3d 998, 1000 n.3 (8th Cir. 2006) (“Affirming upward variances at a rate
of 92.3% while affirming downward variances at a rate of 15.8% could hardly be
viewed as uniform treatment, and seems contrary to 18 U.S.C. § 3553(a)(6)’s concern
with eliminating unwarranted disparity.”)

                                         -19-
number of offense levels in one section demonstrates that the Commission knew how
to proscribe adjustments, but declined to do so in favor of the discretion and “latitude”
owed the sentencing judge for substantial assistance departures.

        In this appeal, the majority rejects the district court’s statement of reasons
offered for its sentencing decision but also denigrates the percentage methodology
offered by the prosecutor. It then adds to the recipes by citing United States v. Jensen,
Nos. 06-2284, 06-2497, 2007 WL 1837018 (8th Cir. June 28, 2007), a case which
advocates the use of Guideline ranges over statistics as a proper measure for
sentencing departures. Need I remark, that sort of measure finds no support in the text
of the Guidelines and was not argued by the parties in any of the briefs in this case.
Its introduction into the majority’s analysis only adds confusion.

                                          III.

       The Sentencing Guidelines operate as a sophisticated algorithmic-like puzzle
for lawyers and judges. Within such a system, the only thing preventing sentencing
judges from becoming automatons is their reason and judgment. The majority has
effectively decimated the authority of a district judge to exercise that good judgment
through its mathematical oversight.

        The Guidelines do not demand of us such lifeless application of its advice. The
Guidelines, as written, describe a human and interactive process between prosecutor,
defense attorney, and sentencing judge for determining the mitigating effects
substantial assistance should have upon a defendant’s sentence. First, the Guidelines
set forth that the government may initiate a substantial assistance motion. This is the
first part of the conversation: the government speaks. The Guidelines then list a set
of non-exclusive and non-exhaustive factors that the court might consider when
making its evaluation. See U.S.S.G. § 5K1.1. In one of the factors, the Guidelines
recommend the court consider the government’s evaluation of the assistance rendered.

                                          -20-
U.S.S.G. § 5K1.1(a)(1). Similarly, in one application note, the Guidelines explain that
the court should give “substantial weight” to the government’s evaluation of the extent
of the assistance given. Id. at cmt. n.3. After the government speaks, the Guidelines
give “latitude” to the district judge to exercise a reasoned judgment about the
mitigating effects the assistance should have on a defendant’s sentence. The
Guidelines envision a dynamic process, by which the district court weighs information
and carefully considers its impact on a person about to serve a devastating sentence.

        But what happens, as here, when the government’s recommendation appears
arbitrary because it cannot or will not provide a basis or explanation for how it arrives
at the recommendation it makes to the district court? Is the integrity of the Guidelines
process tainted when the government stifles the conversation envisioned in § 5K1.1?13
What are the implications of the prosecutor and this appellate court circumventing the
cooperative and discretionary process described in the Guidelines? What will become
of advisory guidelines when an appellate court treats a list of non-exhaustive and non-
exclusive factors as a checklist and a defendant like a point on a line graph? What are
the dehumanizing effects of this court mechanizing the function of a district court –
a court which meets the defendant and the prosecutor and can, as charged, neutrally
evaluate the mitigating effects assistance should have on a sentence? The process of
sentencing cannot and should not be undertaken by a computer!14



      13
         I write further in Section VI. of this dissent about the government’s refusal or
inability to assist the district court by providing a basis or reasons for its
recommended departure.
      14
        See Nancy Gertner, From Omnipotence to Impotence: American Judges and
Sentencing, 4 Ohio St. J. Crim. L. 523 (2007) (comparing role of a federal sentencing
judge to a common law civil code clerk or an “operator of a machine designed and
built by legislators”) (quoting John Henry Merryman, The Civil Law Tradition:
Introduction to the Legal System of Western Europe and Latin America, 36 (2d ed.
1985)).

                                          -21-
                                         IV.

      Contrary to its stated attempts to prevent unwarranted disparity, the majority’s
decision actually promotes disparity. The majority explains that Burns’s participation,
although completely truthful and exceptionally timely, could not be viewed as
extraordinary because some other defendants, none of whom participated in the instant
drug conspiracy, also frequently or sometimes provided one hundred percent truthful
information in a similarly timely manner.

       This rationale nonsensically creates a moving target for departures not based
in the Guidelines’ text or envisioned by the Guidelines’ dictate for an “individual”
inquiry. See U.S.S.G. § 5K1.1, cmt. background. Moreover, it improperly dilutes the
weight of the timeliness, completeness, truthfulness, and reliability factors. For
example, imagine three defendants, convicted of the same offense, in the same
sentencing range, but for separately committed crimes. Suppose that defendant
number one assists the government in a timely manner and is one hundred percent
truthful. He receives a thirty percent departure. The next day, defendant number two
assists the government in the same timely manner and is also one hundred percent
truthful. He will receive only a twenty percent departure because his timeliness and
truthfulness are less exceptional by virtue of the prior participation of defendant
number one. On the third day, defendant number three also participates in the same
timely manner and is one hundred percent truthful. Again, under the majority’s
theory, defendant number three is likely only to receive a ten percent departure
because his identical timeliness and truthfulness have become comparably less
remarkable. The Sentencing Guidelines do not require such an absurd result. How
can one be more than one hundred percent truthful? What kind of truthfulness would
the majority contend is exceptional?

      The majority also rejects Burns’s departure because the district court factored
Burns’s capability of assistance when evaluating the nature and extent of his

                                         -22-
assistance under § 5K1.1(a)(3). This standard, as applied by the majority, operates to
make substantial assistance departures too heavily favored for the biggest criminals.
Those at the bottom of the crime totem pole, so to speak, are often ineligible for an
“exceptional” departure because they have less information to sell. See United States
v. Jones, 145 F.3d 959, 966-67 (8th Cir. 1998) (Bright, J., dissenting); see also Maria
Limbert, Problems Associated with Prosecutorial Control Over Filing Substantial
Assistance Motions and a Proposal for a Substantial Assistance Pre-Sentence Hearing,
27 J. Legis. 251, 258 (2001) (“Since drug organizations are now so large and diverse,
one can be involved as an unloader, a seller, a mule, or a courier, and thus they are
insulated and do not know who the principals are, so very often the smaller dealers
have nothing that they can really offer the government.”)

       Moreover, “[e]ven among defendants with equal access to useful information,
the availability of a substantial assistance departure may hinge primarily on the timing
of their arrests and plea bargains. Those apprehended early in an investigation can
provide assistance by informing on their associates, while the associates arrested later
are likely to add nothing new to the authorities’ knowledge.” Gerald W. Heaney, The
Reality of Guidelines Sentencing: No End To Disparity, 28 Am. Crim. L. Rev. 161,
199 (1991). As I have said before, our system of justice should not condone such
topsy-turvy results.

                                          V.

      The majority repeatedly bases its “extraordinary” decision on reducing
“unjustified sentencing disparities.”15 First, as Judge Bye points out in his opinion,

      15
        The majority also maintains that it is attempting to further the goal of
preventing departures from becoming “untethered” from the Guidelines, citing Saenz,
428 F.3d 1159. The “untethering” and “reduction in disparity” goals are one in the
same, as the reason stated in Saenz for preventing untethering is a reduction in
disparity. See id. at 1162. In any event, departures also become “untethered” from
the Guidelines when appellate judges invent an unwarranted “extraordinary”

                                         -23-
and as I have illustrated above, the court’s opinion today may actually serve to
increase unwarranted disparity, not lessen it. But more significantly, the court’s
justification sounds a hollow note: the notion that stiff adherence to the Sentencing
Guidelines range reduces unwarranted sentencing disparities is a myth!

       Long before a sentencing judge considers a government motion for a substantial
assistance departure, a defendant’s Guidelines sentence is rife with factors which will
increase disparity. The Guidelines range assigned a criminal defendant invariably
depends upon law enforcement officers, the prosecutor’s charging decision, the
defendant’s decision to plead guilty, the probation officer’s report, the quality of
defense counsel,16 and numerous other factors. See Albert W. Alschuler, Disparity:
The Normative and Empirical Failure of the Federal Guidelines, 58 Stan. L. Rev. 85,
111-13 (2005). By way of example, one study randomly selected forty-six probation
officers and asked them to apply the relevant conduct guideline to four offenders who
had participated in the same drug conspiracy. The officers’ conclusions resulted in
substantial variation. “For the least culpable of the offenders, the probation officers’
calculations ranged from one to five years in prison.” See id. at 111-12 (citing Pamela
B. Lawrence & Paul J. Hofer, An Empirical Study of the Application of the Relevant
Conduct Guideline 1B1.3, 4 Fed. Sent’g Rep. 330 (1992)).




component to the explicit authority for individualized departures found in the
Guidelines.
      16
         “No state and, indeed, no other jurisdiction in the world makes an offender’s
sentence as dependent on the quality of his counsel as do the federal courts under the
Guidelines. Finding what is relevant to a case in the 629-page Guidelines Manual, the
1100 pages of appendices explaining Guidelines provisions, and the endless judicial
decisions interpreting the Guidelines takes a very good lawyer, and not every federal
defendant has one. The disparate performances of the attorneys generate sentencing
disparities that fly beneath the radar.” Albert W. Alschuler, Disparity: The Normative
and Empirical Failure of the Federal Guidelines, 58 Stan. L. Rev. 85, 111 (2005).

                                         -24-
       Similarly, prosecutorial discretion significantly impacts the sentence a criminal
offender will serve.17 See Heaney, supra, at 165 (“Although both the legislative and
executive branches have routinely attributed sentencing disparity to the discretionary
actions of individual judges, the lion’s share of discretion in the sentencing process
has been and continues to be exercised by the executive and legislative branches.”)
Approximately 74.9% of federal judges and 58.6% of probation officers think that the
prosecutor has “the greatest influence on the final guideline sentence.” See Limbert,
supra, at 258 (quoting Linda Drazga Maxfield & John H. Kramer, Substantial
Assistance: An Empirical Yardstick Gauging Equity in Current Federal Policy and
Practice, 5 n.11 (1998), at http://www.ussc.gov/publicat/5kreport.pdf (visited July 31,
2007)). The impact of prosecutorial discretion on a sentence is particularly acute in
the context of substantial assistance departures, which can only be granted upon
motion by the government and where government policies regarding cooperation vary
widely by district. See Limbert, supra, at 259. This is particularly troublesome when
prosecutorial discretion in the context of substantial assistance departures is virtually
unreviewable. See id. at 260-61.

        The enactment of the Sentencing Guidelines has not produced less disparity.
In fact, it has only increased it. One author has divined the following illuminating
statistics about the impact of the Sentencing Guidelines on sentencing disparity:


      17
         “The prosecutor’s role in the sentencing process has been enhanced by
guidelines sentencing. Not only does he continue to determine who should be charged
and what the charge should be, but the information that he controls largely determines
the time to be served by an offender. No longer is a sentence subject to reduction by
the Parole Commission, and no longer does the court retain its traditional ability to
moderate the effect of the prosecutor’s decisions by ultimately controlling the
sentence imposed. A district court must consider the relevant conduct and the
sentencing facts as presented to it and must impose a sentence within a given range
if the appropriate facts are established by reliable evidence. The prosecutor’s control
over the ultimate sentence increases the prosecutor’s bargaining power in plea
negotiations.” Heaney, supra, at 190.

                                          -25-
      In the pre-Guidelines period, an offender could expect the jurisdiction in
      which his case arose to make a difference of about 5.24 months in his
      sentence. With the Guidelines in effect, the expected difference in
      sentence attributable to the jurisdiction in which a case arose increased
      to 12.94 months.
      . . . [T]he court in which a case was heard accounted for 1.81% of the
      total variation in sentences in the pre-Guidelines period. It accounted for
      5.64% of this variation in the post-Guidelines period. In temporal terms,
      the expected variation per case was 7.70 months before the Guidelines
      and 17.97 months after.
      . . . Geographic disparity more than tripled after implementation of the
      Guidelines.
              ....
      . . . [a]lthough blacks constitute 48% of the offenders who appear to
      qualify for a mandatory firearms enhancement in drug cases, they
      constitute 64% of the offenders who receive it. . . . prosecutors seek
      “substantial assistance” departures for blacks and Latinos less often than
      for whites . . . .
              ....
      . . . The time served by men in federal prisons before the Guidelines
      exceeded that served by women by about nine months or 50%. In the
      years since the Guidelines were implemented, the gender gap has grown.
      The time served by men increased 96% after the Guidelines while that
      served by women increased 75%. Men now serve 51 months on average
      and women 28. The previous nine-month gender gap has grown to 23
      months.

Alschuler, supra, at 101, 104-5 (footnotes omitted).

      Numerous law professors, judges, and other commentators have observed that
the Sentencing Guidelines simply do not create less disparity, but more. Thus, the
majority’s opinion rests on the slippery surface of a myth. The myth that by reducing
the number and size of downward departures, disparity will improve. The means to
eliminate or reduce disparity has thus far eluded the Sentencing Commission,



                                         -26-
sentencing judges, prosecutors, and apparently continues to escape the reason of this
court of appeals today.18

                                           VI.

       Thus far, my criticism has focused on the majority’s opinion; it is not alone
responsible for the outcome in this case. A prosecutor is an officer of the court,
responsible for administering justice, but also for assisting the trial judge. The process
envisioned by the Guidelines § 5K1.1, as described above in Section III., calls on the
prosecutor to satisfy this obligation. When, as here, the government refuses or is
unable to provide the court reasons for its recommendation, it hampers the district
court’s ability to evaluate the assistance rendered and disregards its duties to assist the
court.

      In the instant case, after describing the assistance Burns provided, the
prosecutor recommended on behalf of the government a fifteen percent downward
departure for substantial assistance. The following colloquy between the judge and
prosecutor ensued:

            THE COURT: How did the defendant’s timeliness affect the 15
      percent recommendation?
            [ANSWER]: It was one of – – those were factors that all went
      through in the mix. I guess the term would be in totality.



      18
        The Guidelines generate criticism by neutral and informed observers,
including many federal sentencing judges. After more than twenty years of judicial
turmoil, it is time for an improved federal sentencing procedure that will make
criminal sentencing fair, reasonable, and effective. It is time to check the immense
power of prosecutors and restore federal sentencing to judges. As I have said before,
“Is anyone out there listening?” United States v. Alatorre, 207 F.3d 1078, 1080 (8th
Cir. 2000) (Bright, J., concurring).

                                           -27-
       THE COURT: Are you in a position to tell me why, if the
defendant was as timely as you indicate he was, you’re only
recommending 15 percent?
       [ANSWER]: The overall substantial – – or the overall cooperation
he provided, the U.S. attorney decided that in totality these – – under the
5K factors this was the percentage they would come up with.
       THE COURT: Let’s try and see if we could short-circuit this. Are
you in a position to tell me how any of the specific 5K1.1(a)(1) through
(5) factors affected the 15 percent recommendation?
       [ANSWER]: I can’t give you a percentage of what each one and
how it was arrived at 15, no, but in looking at all of the facts with those
factors, the U.S. attorney recommended 15 percent.
       THE COURT: Well, for example, why – – if the defendant was
exceptionally timely in his cooperation, why isn’t he getting a 25 percent
or a 50 percent recommendation?
       ....
       [ANSWER]: Each is a case by case, but there are – – I don’t know
how to put a percentage on it.
       THE COURT: . . . Would you agree that except for those very
rare situations where a defendant comes forward and cooperates before
he’s arrested that this defendant cooperated in about as timely a manner
as one could? Is that a fair statement?
       [ANSWER]: In this case with this defendant, as soon as he was
arrested, he told everything; he was complete and truthful, yes. Those
are the facts as I understand it.
       THE COURT: And my question is why doesn’t that justify a 20,
30, 40, 50, or 60 percent recommendation from your office?
       [ANSWER]: Looking at that individual factor, I can’t answer
your question, but in overall, everything that the defendant did, the
defendant in this case assisted with the indictment of one individual at
this time and all these other facts that we presented.
       THE COURT: Did the defendant provide you all the information
he knew about in terms of substantial assistance?
       [ANSWER]: From what I know from [the AUSA], yes.
       THE COURT: Why doesn’t that entitle the defendant to a greater
recommendation than 15 percent?



                                   -28-
            [ANSWER]: I can’t answer your question. I don’t know how to
       answer that question, Judge.

This excerpt clearly shows that the government stifled the Guidelines process by its
refusal or inability to assist the court in making its determination. The government’s
answers to the court’s questions during sentencing were worthless! And, in its appeal
before this court, the government asserts an astounding and misleading response in
defense of its refusal to participate in the Guidelines process. The government states:
“Subsequent to each inquiry of the count [sic], the government asserted the
deliberative process privilege.” Appellant’s Br. at 4. Where? I have searched the
sentencing transcript in vain for any mention of any such privilege.

        The government, in its brief, also criticizes the district court for inquiring as to
how it arrived at its recommendation of fifteen percent. See Appellant’s Br. at 27-28.
It calls the district court’s questions “an attempt to infringe on the executive branch’s
deliberative process and the separation of powers doctrine.”19 In support of its
incredible assertion that it need not provide further explanation to the court, it cites
United States v. Moeller, 383 F.3d 710 (8th Cir. 2004). Moeller concerned the
government’s decision not to file a § 3553(e) motion, which permits the court to
sentence a defendant below a statutory minimum. Here, however, the government
recommended a § 5K1.1 departure. Although there is some indication that the
government in Moeller may have been evasive when it explained its decision not to
file a § 3553(e) motion, see id. at 712-13, Moeller does not stand for the proposition
that “We looked at the factors” or “I don’t know” are sufficient responses to the court
once the government files a § 3553(e) motion, or in this case recommends a § 5K1.1
departure.



       19
        The prosecutor’s mental process is of no concern, whether good or bad. It is
the reasons, facts, and standards for sentencing that should be disclosed to the district
court.

                                           -29-
        The government further argues that “the government’s refusal to divulge further
information was not a reason for the district court to disregard the government’s
recommendation.” This criticism of the district court can only be described as hubris.
The district court is not a rubber stamp for what may be an arbitrary whim of the
United States Attorney. Failure to provide any assistance to the court in making its
evaluation leaves the district court with little choice but to undergo its own evaluation
of the assistance provided and reach its own conclusion. It is tremendously
disingenuous of the government to chastise the district court’s analysis when the
government refuses to engage in its own. Perhaps if the government were less evasive
to the trial court, the government would be more satisfied with that court’s decisions.



       In its appellate brief, the government at long last attempts to give a reason for
its recommendation: “the modest nature of defendant’s assistance.” Appellant’s Br.
at 17. The government never used this descriptive term, “modest,” during the
sentencing hearing. To the contrary, during sentencing, the prosecutor described
Burns’s assistance as “consistent,” “key,” “truthful,” “complete,” and “timely.” Never
“modest.” The government’s late assertion that defendant’s assistance was modest
lacks support in the record.

        I can divine several possible (non-exclusive) explanations for the prosecution’s
conduct in this case. One, the prosecutor truly didn’t know how his superiors arrived
at the recommendation. His superiors directed him to recommend fifteen percent and
he declined to inquire further. Second, the prosecutor truly didn’t know the basis for
the recommendation because it was arbitrary.20 Another possibility is that the



      20
        The district judge commented during sentencing that this is not the first time
the government has refused to disclose to him how it arrives at its recommendation.
This observation suggests that the prosecutors in that district engage in guesswork, not
reasoning, in making recommendations for a sentencing reduction.

                                          -30-
prosecutor truly believed that the government is not required to advise the court.21
The United States Attorney and the assistants view the government’s
“recommendation” to the court as a command, in part because of knowledge that this
court will most likely reverse any departures that exceed the advice of the prosecutor.

       The final explanation, and probably the likely one, is in my view the most
egregious. The government knew its reasons for the recommendation, but withheld
those reasons from the sentencing judge as a matter of strategy in order to sandbag the
district judge’s reasoned opinion and allow the prosecutor to call a “late foul” on
appeal. The government believes that it can circumvent the sentencing court by
refusing to assist the judge and then come to this court with criticism of the district
judge’s analysis.

        I cannot and will not join the majority in support of such prosecutorial conduct.
It is an affront to the judicial system and a conscientious district judge, not to mention
treating the defendant fairly.

                                          VII.

       While Section VI. of this opinion critically analyzes the prosecution for its
particular conduct in this case, I write this separate section to describe why, as a
matter of law, the procedure utilized here must not continue.

      The successful function of our judicial system relies largely on procedure. Both
modern and ancient conceptions of justice are founded on the concept of due process,
which is essentially procedure.




      21
        This explanation is more likely, considering the government’s position to this
court about its “deliberative process privilege.”

                                          -31-
      Sentencing is no exception. Our current federal sentencing system requires
collaboration between the probation office, the prosecutor’s office, law enforcement,
defense counsel, and the court. These individuals operate together to effectuate a
process: a process by which a reasonable and effective sentence may be determined.
Although a judge makes the ultimate conclusion, a sentence should only be upheld
where the judge follows the correct process. For example, if the trial judge fails to
consider certain factors or considers factors that have been deemed impermissible, the
process is tainted and the sentence will likely be reversed. In this way, our judicial
system honors process and method – sometimes even more than the result.

       The government in at least the Northern District of Iowa appears to be engaging
in the routine practice of refusing to give reasons or a basis for its recommended
departure.22 The by-product of the majority’s affirmance today may serve to
perpetuate the government’s practice and interfere with the proper process by which
we sentence criminal defendants.

       The Guidelines state that the court will give “substantial weight” 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.” U.S.S.G. §
5K1.1, cmt. n.3. This note reaffirms that § 5K1.1 asks the government to assist (not
direct) the court with an evaluation (not a conclusion). Yet the government refuses
to provide such assistance to the court. Moreover federal prosecutors, both as officers
of the court and administrators of justice, have a duty of candor and assistance to the
court. Yet the government refuses to engage in either candor or assistance.


      22
        See, e.g., United States v. Saenz, 429 F. Supp. 2d 1081, 1089-90 (N.D. Iowa
2006) (referring to “the routine practice by the United States Attorney’s Office in this
District of making ridiculously stingy recommendations concerning the extent to
which the court should depart downward for a defendant’s substantial assistance, with
no explication of the basis for such recommendations, accompanied by unfounded
assertions that the court must then give such recommendations substantial deference”).

                                         -32-
       In Saenz, this court recognized that although the district court must give
substantial weight to the government’s recommended evaluation of the extent of
assistance, it does not similarly owe such deference to the “valuation” afforded that
assistance. See 428 F.3d at 1164. This court stated: “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.” Id.
(emphasis in original). Similarly, in Haack, this court noted:

      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.

403 F.3d at 1005 n.2; see also Pizano, 403 F.3d at 996 (“serious consideration needs
be given the government’s recommendation, but that it is certainly not controlling”).
Thus, this court’s precedent and the text of the Guidelines belie the government’s
position that it need not explain, when asked, how it arrived at its recommendation.

      Moreover, the government’s refusal is problematic in large part because it is
singularly unhelpful to the district court, this court, and the sentencing process. The
government’s silence creates a sentencing process through which defendants, their
counsel, sentencing courts, and this court must traverse without any signposts or
guides. Indeed, this court has commented on this very concern as it relates to our
review:

      While we recognize that a single United States Attorney brings to bear
      the broad perspective of one who has evaluated numerous cooperating


                                         -33-
      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.

Saenz, 428 F.3d at 1164 (emphasis added). Similarly, the district court has no
assurance that United States Attorneys have applied a consistent methodology – or a
methodology at all. What good is the government’s recommendation to the district
court if the government cannot back it up? Moreover, without any guideposts or
explanations, defense counsel has no idea how to reasonably advise the client of a
potential assistance departure.

       Finally, the government’s silence impedes accountability and judicial review.
How can the district court ever properly evaluate the government’s recommendation
when it is backed up by nothing? How can this court review the district court’s
consideration of the government’s evaluation when from the record we cannot even
discern on what basis the government made its recommendation? Because this court
often reverses downward departures on appeal, there is little or no accountability for
the government in this respect. The government can continue to provide unexplained
recommendations, which the district court will then have difficulty assessing, the
government will appeal, and this court will reverse. This cat and mouse game is a
waste of our judicial resources; this upside-down process is certainly a strange one.
It can perhaps be captured by the words of the musical Anything Goes:

      The world has gone mad today
      And good’s bad today,
      And black’s white today,
      And day’s night today,
      ....
      Anything goes.

Cole Porter, Anything Goes, in Anything Goes (1934).

                                         -34-
       Persons of intelligence, integrity, and good faith can disagree on the
reasonableness of a sentence, the value or extent of assistance, or the degree of a
departure. My colleagues and my disagreement as to the reasonableness of a sentence,
and this court’s disagreement with the district court’s departure, should not effectively
incentivize prosecutors to disengage from the sentencing process in the district court.
Secrecy has no place in the courtroom. I believe it would be proper for the
government on remand to make a new recommendation to the district court, providing
the judge with a candid explanation of the methodology employed in reaching the
recommendation. The district court should then consider that evaluation when re-
sentencing Burns.

                                         VIII.

       Who should have the power to sentence in cases of this kind? The prosecutor,
who has an unreasoned opinion for the appropriate sentence? This court, who has
never met the defendant and has been given only a limited record by the government
but often supports the position of the prosecutor?

      We should recognize the discretion of district judges who give thoughtful
consideration to a defendant’s sentence, subject to review for abuse of discretion.

      In the case before us, I would affirm the reasoned decision of the district court
to grant Burns a substantial assistance departure and reduce his sentence to 144
months (twelve years). That is still a very long sentence.

      I dissent.

BYE, Circuit Judge, with whom BRIGHT, Circuit Judge, joins, concurring in part and
dissenting in part.



                                          -35-
      The majority holds the district court’s sixty percent downward departure was
excessive and unreasonable under the circumstances presented by this case. Because
the district court appropriately exercised its sentencing discretion, I respectfully
dissent from the majority’s decision to vacate the sentence and remand for
resentencing. I join the majority’s opinion in other respects. I also join in Judge
Bright’s dissent.

                                          I

       We review the extent of a substantial assistance downward departure for an
abuse of discretion. United States v. Coyle, 429 F.3d 1192, 1193 (8th Cir. 2005).
“[T]here is no bright line percentage or mathematical formula to determine when the
extent of a substantial assistance motion becomes unreasonable.” United States v.
Pepper, 486 F.3d 408, 411 (8th Cir. 2007) (Pepper II). In an effort to divine what is
unreasonable, we have broadly stated “some proportionality must exist between the
defendant’s assistance and the extent of the departure; for example, an extraordinary
departure must be supported by extraordinary circumstances.” Id. (citing United
States v. Saenz, 428 F.3d 1159, 1162-65 (8th Cir. 2005) (Saenz I)). This
unremarkable premise, however, offers scant assistance to district courts charged with
the responsibility of imposing reasonable sentences. For proportionality to have
meaning, we must engage in a substantive discussion of “extraordinary departures”
and “extraordinary circumstances.” Along the substantial-assistance-bell-curve
described by the majority, we need to determine what reductions in sentences –
ranging from 0 to 100 percent – are ordinary and which are extraordinary. After
establishing what ordinary and extraordinary reductions are, we can begin to measure
the quality and quantity of assistance necessary to obtain one or the other.




                                        -36-
                                           A

       Despite cases eschewing a bright line rule, we have held, without explanation,
that departures or variances in the range of fifty percent are extraordinary. See United
States v. Meyer, 452 F.3d 998, 1001 (8th Cir. 2006) (holding a fifty percent variance
extraordinary); United States v. Bryant, 446 F.3d 1317, 1319-20 (8th Cir. 2006)
(holding a fifty-seven percent variance extraordinary); United States v. Larrabee, 436
F.3d 890, 892-93 (8th Cir. 2006) (holding a fifty-four percent variance extraordinary);
United States v. Kendall, 446 F.3d 782, 785 (8th Cir. 2006) (holding a fifty percent
departure extraordinary); Saenz I, 428 F.3d at 1162 (noting a fifty percent departure
would be an extraordinary sentence reduction); United States v. Dalton, 404 F.3d
1029, 1033-34 (8th Cir. 2005) (citing United States v. Enriquez, 205 F.3d 345, 348
(8th Cir. 2000) (describing a fifty percent downward departure as extraordinary in
light of the government’s recommended twenty percent reduction)). This “fifty
percent rule” debuted in Dalton, and quickly became, without benefit of critical
analysis, the guiding principle used to evaluate the reasonableness of departures and
variances. Despite no discernable resistance to its adoption, the rule resides as a
squatter in our court’s jurisprudence, owing its apparent legitimacy to having been oft
repeated.

      As ably recounted by Chief Judge Bennett23 in United States v. Saenz, 429 F.
Supp. 2d 1081 (N.D. Iowa 2006) (Saenz II), the genesis for the rule lies in dicta found
in Enriquez.

      [T]he comment in Enriquez upon which the Circuit Court relied in
      Dalton and Saenz was not made in the context of a determination of


      23
        Chief Judge Bennett, whose sentencing decision we review in this case, has
served as a United States District Court Judge since 1994 and is responsible for
sentencing over 1,400 defendants. See United States v. Saenz, 429 F. Supp. 2d 1081,
1091 (N.D. Iowa 2006) (Saenz II).

                                         -37-
      whether a district court’s downward departure for substantial assistance
      was “unreasonable” or “extraordinary.” Instead, in Enriquez, the
      defendant argued “that he should be allowed to withdraw his plea
      because the government failed to keep an alleged promise to recommend
      an above-average sentence reduction for his wife.” Enriquez, 205 F.3d
      at 348. The Circuit Court concluded that the district court had not erred
      in finding that there was no such promise. Id. Only then did the Circuit
      Court comment, apparently as an afterthought, that, “as a practical
      matter, Mrs. Enriquez actually did receive an extraordinary sentence
      reduction of 50 per cent., as opposed to the 20 per cent. expected.” Id.
      I cannot believe that an off-hand statement, which is plainly dicta in the
      decision in which it appears, could possibly have been intended to
      establish the benchmark for what constitutes an “unreasonable” or
      “extraordinary” downward departure in the very different context of a
      reduction for substantial assistance. Certainly, there was no attempt in
      Enriquez (or indeed, in the subsequent decisions in Dalton and Saenz )
      to provide a reasoned basis for establishing a 50 percent reduction as the
      benchmark for “unreasonableness” of a reduction, whether the reduction
      is for substantial assistance or for any other reason. Moreover, to the
      extent that the court in Enriquez provided any basis for labeling a 50
      percent reduction “extraordinary,” the basis was that only a 20 percent
      reduction was “expected,” and even then, there was no explanation of the
      basis on which only a 20 percent reduction was “expected.” Id. Thus,
      the decision in Enriquez does not reasonably stand for the proposition
      that a 50 percent reduction in sentence for any reason, let alone for
      substantial assistance, is “extraordinary.”

Id. at 1090-91.

        Despite its dubious origins, the rule’s simplicity and ease of application make
it enticing. Our responsibility, however, is to find what is reasonable – not expedient
– and, like Judge Bennett, I find no reasoned basis in Enriquez for concluding a fifty
percent departure is ipso facto extraordinary. Indeed, Judge Bennett’s well-reasoned
discussion in Saenz II, convinces me a fifty percent departure for substantial
assistance is not extraordinary. 429 F. Supp. 2d at 1091-95. Rather, departures in the


                                         -38-
range of fifty percent represent the nationwide median afforded defendants providing
substantial assistance, and are, therefore, quite ordinary. The U.S. Sentencing
Commission (Commission), Special Post-Booker Coding Project, (data extracted
February 22, 2006; table prepared February 23, 2006) (Special Post-Booker Coding
Project), compared the percentage of decrease in sentences for substantial assistance
– calculated from the minimum U.S. Sentencing Guidelines (Guidelines) range
sentence – in 9,061 cases nationwide. Overall, the median decrease was 49.9 percent.
A review of 5,754 drug trafficking cases revealed a nationwide median decrease in
those cases of 45.8 percent.24 This data informs our present discussion by
demonstrating, in concrete and reliable terms, that our reliance upon Enriquez and the
“fifty percent rule” it spawned was misguided. We now know, “far from being
‘extraordinary,’ a 50 percent reduction for substantial assistance very nearly
approximates ‘the median’ and, as such, is actually and necessarily ‘ordinary.’” Saenz
II, 429 F. Supp. 2d at 1092.

      Today’s decision, while citing cases which held departures in the range of fifty
percent ipso facto extraordinary, offers another explanation for having vacating those
sentences. The majority rejects “aggregate statistics” as a guide for determining what
departures are extraordinary, arguing instead “the ‘extraordinary’ label more
accurately serves as a convenient characterization of departures that we have
considered particularly large relative to the two to four offense level adjustments
generally envisioned by the structure of the sentencing guidelines for mitigating or
aggravating circumstances.” This alternate method for gauging what is extraordinary
was first alluded to in Saenz I, 428 F.3d 1159, where the court concluded




      24
       Owing to small revisions in the Special Post-Booker Coding Project, the
numbers of cases referenced herein (9,061 & 5,754) are slightly higher than the
numbers used by Judge Bennett (8,854 & 5,660) in Saenz II. The percentages of
decrease in sentences, however, are identical.

                                        -39-
      Departures under [Guidelines] § 5K1.1 and reductions under [18 U.S.C.]
      § 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, 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.

Id. at 1162 (internal citations omitted).

       I seriously question whether our earlier decisions intended a definition of
extraordinary tethered to adjustments for mitigating and aggravating circumstances.
Nevertheless, assuming the court had such considerations in mind when it decided
those cases, this alternate benchmark for ordinary or extraordinary should also be
rejected.

       As the Special Post-Booker Coding Project proves, the median sentence
reduction nationwide is nearly fifty percent. In other words, along the bell curve
representing possible departures, those in the range of fifty percent are ordinary, with
extraordinary departures falling somewhere to the far left and far right of ordinary.
By defining extraordinarily high departures as those exceeding two, three or four
offense levels, the court arbitrarily moves ordinary to the left of the bell curve.
Adjustments of two, three and four levels approximate sentencing reductions of
twenty-four, thirty-four, and forty-two percent, respectively. Applying the majority’s
newly-minted test, extraordinary departures now fall on either side of twenty-four
percent and forty-two percent, with departures exceeding forty-two percent displacing
fifty percent departures as ipso facto extraordinary. By this reasoning, departures
deemed extraordinarily low nationwide are ordinary in our court, and departures lower
than the national median are extraordinarily high. This skewed view of what is
ordinary is directly contradicted by the data from the Special Post-Booker Coding
Project, but is consistent with our court’s demonstrated tendency to closely scrutinize


                                            -40-
reductions in sentences while readily affirming increases. See United States v.
McDonald, 461 F.3d 948, 960 (8th Cir. 2006) (Bye, dissenting); United States v.
Meyer, 452 F.3d 998, 1000 n.3 (8th Cir. 2006).

       Additionally, the majority’s reliance on adjustments for mitigating and
aggravating circumstances as a benchmark for what is ordinary in § 5K1.1 departures
is contradicted by the structure of the Guidelines. When considering adjustments for
mitigating and aggravating conduct, a district court is called upon to determine
whether an adjustment is factually supported. The degree to which conduct
supporting the adjustment exists is not at issue. Instead, once the threshold fact
finding is made, a defendant’s base offense level is decreased or increased by a preset
number of offense levels as dictated by the Commission.

       Conversely, under § 5K1.1, the sentencing court is required to rate the value of
a defendant’s substantial assistance along a continuum of extraordinarily low,
ordinary, and extraordinarily high, using a non-exclusive list of factors, which include
the significance, usefulness, truthfulness, completeness, reliability, nature, extent,
timeliness, etc., of a defendant’s assistance. The district court then awards an
appropriate reduction in sentence ranging from 0 to 100 percent. The evaluative
process anticipated by § 5K1.1 does not lend itself to the same limitations which
constrain district courts applying sections dealing with mitigating and aggravating
circumstances. Were this not true, the Commission would have imposed a similar
framework upon substantial assistance departures. It could easily have defined
ordinary assistance as deserving reductions of between two and four offense levels,
with extraordinary assistance garnering preset minimum and maximum reductions.
Instead, the Commission, recognizing the broad range in the quality and quantity of
possible substantial assistance, left it to district courts to evaluate the assistance and
determine the appropriate reduction. By imposing the same construct on substantial
assistance departures as applies to mitigating and aggravating adjustments, the



                                          -41-
majority restricts the discretion of district courts in a manner neither authorized nor
intended by the Commission.

       This court has often noted the need to reduce unwarranted sentencing disparities
among similarly situated defendants as the overarching concern when vacating
substantial assistance departures. See, e.g., Saenz I, 428 F.3d at 1164; see also 18
U.S.C. § 3553(a)(6) (requiring the sentencing court to consider “the need to avoid
unwarranted sentence disparities among defendants with similar records who have
been found guilty of similar conduct”). Paradoxically, our continued allegiance to the
fifty percent rule or today’s rule defining ordinary as the equivalent of a two to four
level adjustment, exacerbates the very problem it claims to prevent. Nationwide
defendants providing ordinary substantial assistance receive departures ranging in the
area of fifty percent. In our court the same defendants receive departures that are in
comparison extraordinarily low.

                                          B

       As shown above, the Special Post-Booker Coding Project offers a meaningful
basis for determining where ordinary and extraordinary fall along the curve of
possible departures. Our next task is to define the quality and quantity of substantial
assistance necessary to earn a given departure. I concur with the majority’s
observation that statistics are not as useful to this inquiry. Instead, we need to
compare the circumstances offered in support of the departure under review to the
circumstances presented in prior decisions. After comparing the assistance provided
by Burns to the assistance provided by other defendants, I am satisfied the district
court’s sixty percent departure was reasonable.

       My review of the district court’s departure is guided by our decisions in United
States v. Haack, 403 F.3d 997, 1002-03 (8th Cir.), cert. denied, 126 S. Ct. 276 (2005),
United States v. Pizano, 403 F.3d 991, 995 (8th Cir. 2005), as well as Dalton, Saenz

                                         -42-
I, and Pepper II. In Haack, we reversed a fifty-seven percent downward departure,
finding it unreasonable in light of the defendant’s limited assistance. 403 F.3d at 998.
There the defendant made incriminating statements when first arrested which helped
officers obtain a search warrant. Id. at 999. For several months thereafter, however,
the defendant refused to cooperate. When he finally did cooperate, his information
was of limited use to the government and he was not available to provide useful grand
jury testimony. Id. at 1005. We also expressed reservations about comments the
district court made at sentencing suggesting the departure may have been based in part
on the court’s dissatisfaction with the sentencing guidelines. Id. at 1006.

       In Dalton, we concluded the district court’s seventy-five percent downward
departure was unreasonable because the defendant 1) provided only corroborative
testimony before the grand jury, 2) did not implicate a large number of people, 3) did
not serve as a primary government witness against anyone, and 4) absconded from
custody while on pretrial release. 404 F.3d at 1033.

       In Saenz I, we reversed a sixty-eight percent downward departure where the
defendant provided substantial but only “modest” assistance. 428 F.3d at 1163. In
Saenz I, the defendant’s corroborating testimony at a co-defendant’s sentencing
hearing supported a two-level increase in the Guideline offense level. Id. Saenz also
attempted, unsuccessfully, to assist the government with an investigation into 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 purchase), give testimony in a grand jury or at a trial, or
experience significant risk of injury or death.” Id.25




      25
        Notably, on remand for resentencing, Judge Bennett imposed an identical
sentence. Saenz II, 429 F. Supp. 2d at 1108. The government’s appeal of Saenz’s
resentencing was later voluntarily dismissed.

                                         -43-
      Conversely, in Pizano, we affirmed a seventy-five percent downward departure
where the defendant began his cooperation immediately, supplied grand jury
testimony against a family member and a major figure in the conspiracy, and put
himself at risk. 403 F.3d 995-96. In Pepper II, we affirmed a forty percent downward
departure where the defendant’s assistance consisted of information about two
individuals’ involvement with illegal guns and drugs, which the district court
characterized as “pedestrian” or “average.” 486 F.3d at 411; see also United States
v. Pepper, 412 F.3d 995, 996-97 (8th Cir. 2005) (Pepper I) (vacating and remanding
Pepper’s initial sentencing).

       The reversals in Haack, Dalton, and Saenz I, are easily distinguishable and
support the district court’s sixty percent departure in this case. Burns began his
cooperation immediately, before asserting his right to counsel and before being made
aware of the impact the Guidelines would have on his sentence. Additionally, he
continued to cooperate through sentencing, provided key grand jury testimony leading
to the indictment and conviction of another defendant, and offered detailed
information about several groups who were manufacturing methamphetamine. The
significance of Burns’s cooperation was not diminished by a subsequent refusal to
cooperate, Haack, 403 F.3d at 1005, a serious lapse in judgment as demonstrated in
Dalton, 404 F.3d at 1033, or any suggestion the district court took into account
improper or irrelevant factors, Haack, 403 F.3d at 1006. The district court concluded
Burns’s assistance fell between the assistance provided in Pizano and Pepper II.
Though not so substantial as to warrant the seventy-five percent departure upheld in
Pizano, Burns provided markedly greater assistance than the pedestrian assistance
provided by the defendant in Pepper II. After reviewing those cases, I find no basis
to conclude the district court’s departure – which approximates the middle ground
between Pizano and Pepper II – was unreasonable.




                                        -44-
                                           C

       The majority also takes exception to the weight the district court afforded three
of the five enumerated § 5K1.1(a) factors.

       As a preliminary matter, the majority opinion discusses the various § 5K1.1(a)
factors considered by the district court in isolation, concluding none of them
individually supports the court’s sixty percent departure. The record in this case
makes clear the district court’s departure was not based on any single factor. Rather,
taken together, the court concluded the quality and quantity of Burns’s assistance
warranted a sixty percent departure. Section 5K1.1 provides: “The appropriate
reduction shall be determined by the court for reasons stated that may include, but are
not limited to, consideration of the following [enumerated factors].” Nothing in the
structure of § 5K1.1 suggests that for a reduction to be appropriate it must be justified
by a single factor or by each factor standing alone. Nor does § 5K1.1 suggest all the
factors must be present or present to the same degree. Instead, it is apparent district
courts are to consider the entire universe of a defendant’s assistance to determine the
appropriate departure. The majority’s analysis of the district court’s consideration of
the § 5K1.1 factors is, of course, further colored by its unfounded belief that
departures exceeding approximately forty-two percent should be deemed
extraordinary. When properly analyzed, the district court’s sixty percent departure is
reasonable if Burns provided sufficient assistance to warrant a departure falling on the
high side of ordinary.

       First, the majority finds the district court improperly analyzed the timeliness
factor. At sentencing, the government conceded ninety-nine percent of defendants do
not cooperate before they are arrested. Sent. Tr. 6. Nonetheless, the majority
concludes: “Although few defendants may participate earlier than did Burns, if a
sufficient number participate in a similarly timely manner, Burns’s participation could
not be viewed as extraordinary.” The majority further concludes the district court

                                          -45-
failed to consider the “government’s unaddressed and uncontested insistence that
many defendants cooperate in a similarly timely fashion.” Under the facts of this case,
however, Burns’s timeliness must be considered extraordinary.

        At sentencing, the government was asked whether, aside from “those very rare
situations where a defendant comes forward and cooperates before he’s arrested [did]
this defendant cooperate[] in about as timely a manner” as possible? Sent. Tr. 7. In
response, the government’s attorney stated: “In this case with this defendant, as soon
as he was arrested, he told everything; he was complete and truthful, yes.” Id. Thus,
according to the government, the only way Burns’s cooperation could have been more
timely was if he had come forward prior to his arrest – which, again, according to the
government, only one percent of defendants do. This concession by the government
renders irrelevant its claim “that many defendants cooperate in a similarly timely
fashion.” Whether that number be many or few, under no application of § 5K1.1 can
it be reasonable to conclude a defendant’s cooperation is extraordinary only if it
exceeds the cooperation of ninety-nine percent of all other defendants. Finally, I am
unpersuaded by the majority’s reliance on Saenz I, 428 F.3d at 1162-63, as supporting
its rejection of the district court’s timeliness evaluation. In Saenz I, though timely, the
defendant’s cooperation was discounted because it did not compel anyone else to
plead guilty. Id. Here it is uncontested Burns’s cooperation led to the indictment and
guilty plea of another defendant.

       Next, the majority takes exception to the district court’s evaluation of the
truthfulness and completeness of Burns’s assistance. At sentencing, the district court
considered the truthfulness, completeness, and reliability of Burns’s information, and
concluded it was “a hundred percent complete, a hundred percent truthful, and a
hundred percent reliable.” Sent. Tr. 14. The government, as noted above, concedes
Burns “told everything; he was complete and truthful.” Sent. Tr. 7. The majority,
however, concludes Burns’s absolute compliance with § 5K1.1(a)(2) is insufficient
to be deemed extraordinary. When evaluating Burns’s timeliness, the majority

                                           -46-
concluded only one percent of defendants who are the most timely are extraordinary.
When evaluating truthfulness, completeness, and reliability, the majority concludes
even 100 percent compliance is insufficient to be extraordinary. I can conceive of no
reasonable application of § 5K1.1 which would require a defendant to do the
impossible, i.e., provide more than 100 percent compliance, for his cooperation to be
deemed extraordinary.

       Finally, the majority faults the district court’s evaluation of the nature and
extent of Burns’s cooperation, and its evaluation of the usefulness and significance of
his cooperation. According to the majority, the district court “applied a test that
compared Burns’s assistance to the assistance it speculatively believed the defendant
capable of providing.” It further contends the district court’s departure based on
Burns’s “not inconsiderable” assistance, leaves too little room for more extensive
assistance based departures.

      I am unable to divine from the record any basis for concluding the district
court’s evaluation of the nature and extent of Burns’s cooperation was speculative.
The district court, while recognizing other defendants provide greater information,
found Burns provided “every single bit of information he knew.” Sent. Tr. 13-14.
Conversely, there is nothing in the record suggesting Burns did not do everything he
could do or that was requested and asked of him.

       The district court found also Burns’s cooperation both very significant and very
useful; Burns continued to cooperate through sentencing, provided key grand jury
testimony leading to the indictment and guilty plea of another defendant, and offered
detailed information about several groups who were manufacturing
methamphetamine. I find nothing unreasonable about the district court’s evaluation
of the significance and usefulness of Burns’s cooperation and the role it played in
support of the court’s sixty percent departure. The majority’s concern about the
court’s departure leaves too little room for departures of greater magnitude is belied

                                         -47-
by the availability of departures in excess of sixty percent. Though rarely traversed
in our circuit, the range of departures between 60 and 100 percent represents nearly
one half of the total range of possible departures available to defendants providing
substantial assistance. The belief about too little unclaimed ground remains after the
district court’s departure results from this court’s steadfast refusal to extend its gaze
beyond a limited horizon. The remaining territory is more than sufficient to
accommodate defendants who provide greater substantial assistance.

                                            II

      For the foregoing reasons, I respectfully dissent from the court’s decision
vacating the district court’s sentence and remanding for resentencing. I concur in
footnote six and part III. B. of the majority’s opinion.

                               ______________________________




                                           -48-
