            UNITED STATES COURT OF APPEALS

                 FOR THE FIFTH CIRCUIT

                  __________________

                     No. 94-60338
                  __________________



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

                        versus

MATEO ALVAREZ,

                                    Defendant-Appellant.


                      * * * * * *


                  __________________

                     No. 94-60339
                  __________________



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

                        versus

JULIAN TORRES,

                                    Defendant-Appellant.


                      * * * * * *
                           __________________

                              No. 94-60340
                           __________________



     UNITED STATES OF AMERICA,

                                            Plaintiff-Appellee,

                                   versus

     JOSE LUIS TORRES,

                                            Defendant-Appellant.

          ______________________________________________

      Appeals from the United States District Court for the
                    Southern District of Texas
          ______________________________________________
                          April 14, 1995

Before KING, GARWOOD and BENAVIDES, Circuit Judges.

GARWOOD, Circuit Judge:

     In   this   consolidated   appeal,     defendants-appellants    Mateo

Alvarez (Alvarez), Julian Torres (Julian), and Jose Luis Torres

(Jose) (Defendants) complain of the sentences imposed under the

United States Sentencing Guidelines (Guidelines) following their

convictions on pleas of guilty to charges of conspiring to possess

with the intent to distribute marihuana. Defendants argue that the

district court erred in not downwardly departing to the extent

recommended by the government.          For the reasons that follow, we

affirm.

                     Facts and Proceedings Below

     On   November   10,   1993,    a    federal   grand   jury   indicted

Defendants, along with eight others, for their involvement in a


                                     2
marihuana-smuggling operation from November 1990 until April 1993.

Pursuant to written plea agreements, Defendants entered pleas of

guilty to Count 7 of the indictment, which charged them with a

conspiracy to possess with the intent to distribute more than 1,000

kilograms of marihuana in violation of 21 U.S.C. §§ 846, 841(a)(1),

and 841(b)(1)(A).1      In the plea agreements, the government agreed

to move for a downward departure from the applicable Guideline

range based on Defendants' substantial assistance.          See U.S.S.G. §

5K1.1.     Defendants, however, acknowledged that the district court

had discretion     in   determining   whether   and   to   what   extent   to

depart.2


1
     The November 10, 1993, indictment was superseded on December
8, 1993. Count 7 of the superseding indictment, to which
Defendants pleaded guilty, is identical to Count 7 of the
original indictment.
2
     In Alvarez's plea agreement, he stated that he understood
"that the Government makes no promises or representations about
the range of punishment . . . or the sentence the Defendant will
receive from the Court." At his arraignment, furthermore, the
court informed him, "Do you understand that you will have no
bargains . . . from me? There'll be no deals with me, that your
deal will be with the United States Attorney's Office[, which] .
. . will make a recommendation . . . but I will not be bound to
follow that recommendation . . . . Do you understand that?"
Alvarez responded, "Yes, sir, I do." Later, the court repeated
this warning: "You have no bargains with me, no promises from
me. . . . I do not have to follow [the government's
recommendation] and I can sentence you to the maximum possible
punishment provided by law . . . . Do you understand that?"
Alvarez answered yes.
     In their plea agreements, both Julian and Jose stated that
they understood "that the Government makes no promises or
representations about the range of punishment applicable under
the [Guidelines] . . . or the sentence [they] will receive from
this Court." At their arraignment, the court informed them,

     "All of you should understand that the agreement that
     you have reached is with the United States Attorney's
     office. You have no agreement with me. I am not bound
     by any agreement. You have no promises from me. Any

                                      3
     At sentencing on April 29, 1994, the district court assigned

Alvarez a criminal history category of I and a total offense level

of 36, resulting in a sentencing range of 188 to 235 months.

Julian and Jose were each assigned a criminal history category of

I and total offense level of 31, resulting in a sentencing range of

120 to 135 months.   All three Defendants faced a statutory minimum

sentence of 120 months.   See 18 U.S.C. § 841(a)(1).    As agreed, the

government presented evidence of Defendants' substantial assistance

under section 5K1.1 at the sentencing hearing.         In exchange for

this assistance and in accordance with their plea agreements, the

government recommended a 24-month sentence for Alvarez and 30-month

sentences for Jose and Julian.        The district court granted the

government's motion for a downward departure from the applicable

Guideline ranges and the statutory minimum, but decided not to

depart to the extent recommended by the government.       Instead, the

district court sentenced each defendant to 60 months in prison,

half the statutory minimum, and 5 years of supervised release.     The

court also ordered them each to pay a $50 mandatory special

assessment.


     recommendation that the United States Attorney's office
     gives to me is just that, a recommendation and nothing
     more. I have the power to sentence you to the maximum
     possible punishment provided by statute, and if I do
     you cannot take back your plea of guilty. Do you
     understand . . .?"

Both Julian and Jose answered yes. The district court continued,
"I am not bound by the ups or downs or the ins and outs of [these
recommendations]. Do you understand . . .?" Julian and Jose
again answered yes. Finally, after informing them that any
benefit recommended "may not come," the court asked them, "Has
anybody promised what sentence you would receive from me . . .?"
Julian and Jose both answered no.

                                  4
       Although the district court never stated its reasons for not

departing to the extent recommended by the government, it did

express    concern     over,     among        other   things,    the   sentencing

disparities respecting the eleven codefendants.                    At Alvarez's

sentencing hearing, the court remarked, "[T]his is a very extensive

drug-smuggling operation, and extensive drug smugglers should be

punished extensively.        Just like minimal participants should not

be."    The court asked the government whether this was a case in

which "you have the top dog testifying against the smaller persons

and receiving less punishment." The same day, at Julian and Jose's

sentencing, the district court observed that Alvarez, Julian, and

Jose were all "significant criminal[s], . . . [a]nd yet they

testify as to others and receive the same or less punishment than

other    persons    not    nearly    as       guilty."    The    district   court

specifically       noted   the    sixty-month         sentence   imposed    on   a

codefendant, Jose Elias Lopez, whose role was very minimal.

       The district court entered judgment as to all Defendants on

May 9, 1994.       The same day, Defendants filed a joint, unopposed

motion asking the court to reduce their sentences to the levels

recommended by the government.                After the district court denied

their motion on June 13, 1994, Defendants brought this consolidated

appeal.

                                    Discussion

       The Sentencing Reform Act of 1984, as amended, 18 U.S.C. §

3551 et seq., 28 U.S.C. §§ 991-998, provides that a district court

may depart from the sentencing range set by the Guidelines only

when it finds that "there exists an aggravating or mitigating

                                          5
circumstance of a kind, or to a degree, not adequately taken into

consideration by the Sentencing Commission . . . ."                 18 U.S.C. §

3553(b); see also U.S.S.G. § 5K2.0.             See, e.g., United States v.

Rogers, 917 F.2d 165, 169 (5th Cir. 1990) (enhancement allowed on

the basis of an excessive criminal history point total), cert.

denied, 111 S.Ct. 1318 (1991).         Furthermore, to impose a sentence

below the statutory minimum, the district court may act only on the

government's motion and only for the purpose of reflecting a

defendant's substantial assistance.             18 U.S.C. § 3553(e).

       We have consistently recognized that the Guidelines limit the

district court's authority to deviate, upward or downward, from the

applicable      sentencing   range.        We   have   repeatedly    held,    for

instance, that it is unlawful for the district court to base its

decision to depart downward on certain individual characteristics

of the defendant.       See, e.g., United States v. O'Brien, 18 F.3d

301,   302-03    (5th   Cir.)   (no   downward     departure   because       of   a

defendant's post-conviction community service), cert. denied, 115

S.Ct. 199 (1994); United States v. Lara-Velasquez, 919 F.2d 946,

954 (5th Cir. 1990) (no downward departure because of a defendant's

rehabilitative potential); United States v. Reed, 882 F.2d 147, 151

(5th Cir. 1989) (no downward departure because of a defendant's

"worth" or "goodness"); United States v. Burch, 873 F.2d 765, 768

(5th Cir. 1989) (no downward departure because of the defendant's

talents).    In United States v. Ives, 984 F.2d 649, 651 (5th Cir.),

cert. denied, 114 S.Ct. 111 (1993), we held that disparity of

sentences among codefendants is not an aggravating or mitigating

factor that would support a deviation either upward or downward

                                       6
from the applicable Guideline range.3             See also United States v.

Brown, 29 F.3d 953, 959 (5th Cir.), cert. denied, 115 S.Ct. 587

(1994).

     The decision to depart here, however, was not based on the

actual or potential disparity of sentences among codefendants.

Both sides concede that the district court properly based its

decision to depart downward on Defendants' substantial assistance

to the government.4        See 18 U.S.C. § 3553(e).              Nevertheless,

Defendants contend that the district court, in determining the

extent of the departure, improperly, and in violation of Ives,

compared    their    recommended      sentences   to   those    of   lower-level

functionaries in the conspiracy. In so arguing, Defendants seek to

extend Ives, which clearly spoke only to the decision to depart and

not to the extent of a departure.           As we and other circuits have

recognized, however, the district court has the discretion to

choose the appropriate sentence within the applicable Guideline

range and    to     determine   the    appropriate     extent   of   a   downward



3
     Ives is consistent with the nearly unanimous view of the
other circuits on this particular issue. See United States v.
Ellis, 975 F.2d 1061, 1065-66 (4th Cir. 1992), cert. denied, 113
S.Ct. 1352 (1993); United States v. Vilchez, 967 F.2d 1351, 1353-
55 (9th Cir. 1992); United States v. Higgens, 967 F.2d 841, 845
(3d Cir. 1992); United States v. Meja, 953 F.2d 461, 467-68 (9th
Cir. 1991), cert. denied, 112 S.Ct. 1983 (1992); United States v.
Woogan, 938 F.2d 1446, 1448-49 (1st Cir.), cert. denied, 112
S.Ct. 441 (1991); United States v. Joyner, 924 F.2d 454, 459-61
(2d Cir. 1991). But see United States v. Nelson, 918 F.2d 1268,
1272 (6th Cir. 1990).
4
     On these facts, Defendants do not contend, nor could they,
that the district court's refusal to depart to the extent
recommended by the government was in reality a disguised refusal
not to depart at all. The sentence imposed here was clearly a
significant departure.

                                        7
departure;    thus,     a    defendant      cannot     appeal      the   extent   of   a

departure made pursuant to section 5K1.1 unless the departure was

made in violation of law.           United States v. McKinley, No. 93-1985

(5th Cir. August 1, 1994) at 3 (unpublished); United States v.

Johnson, 33 F.3d 8, 9-10 (5th Cir. 1994) ("the court is free to

deny a departure or to grant a departure which is greater or

smaller than that recommended by the government"); United States v.

Lucas, 17 F.3d 596, 599 (2d Cir.), cert. denied, 115 S.Ct. 240

(1994); cf. United States v. Miro, 29 F.3d 194, 199 (5th Cir. 1994)

(a district court's refusal to depart downward is unreviewable

unless the refusal was in violation of law); United States v.

Matovsky, 935 F.2d 719, 721 (5th Cir. 1991) (sentence imposed

within the Guideline range was not in violation of law and was

therefore unreviewable).           See also 18 U.S.C. § 3742(a).

      Defendants respond that the district court violated the law,

in   particular   the       rule   stated       in   Ives,   and    thus   that   their

sentences are reviewable on appeal.                   They assert that there is

nothing meaningful about the distinction between deciding, on the

one hand, whether to depart and, on the other, how far to depart.

If disparity in sentences among codefendants is an improper basis

for departure, they maintain, it likewise should be an improper

basis for not departing downward to the extent recommended by the

government.    In support of their position, they cite the Fourth

Circuit's decision in United States v. Hall, 977 F.2d 861 (4th Cir.

1992).

      In Hall, the government moved for a downward departure based

on the substantial assistance of the defendant, Hall, who had

                                            8
requested that the district court also consider the sentences

received by his codefendants in determining whether and how far to

depart.   The court granted the government's motion, but refused to

consider the sentences of his coconspirators.       On appeal, Hall

argued that "even if the sentences imposed on his coconspirators

are not a valid, independent basis for departure, once the district

court departed based on substantial assistance, it erred in not

considering the sentences imposed on or actually served by his

coconspirators in determining the extent of the departure." Id. at

863.    The Court rejected Hall's contention, concluding that a

district court can no more rely on an invalid factor in determining

whether to depart than it can in determining how far to depart:

       "If . . . a departure sentence may not stand unless a
       reviewing court determines that an invalid factor had no
       effect on the sentencing decision, it logically follows
       that an appellate court may not countenance a sentence in
       which the district court extended an otherwise proper
       departure sentence based upon a circumstance that could
       not have supported a departure in the first instance."
       Id. at 865.

Under Hall, therefore, the only factors on which a district court

may rely in determining the extent of a downward departure are

those which could independently support the initial decision to

depart.

       In so holding, the Fourth Circuit relied on the Supreme

Court's decision in Williams v. United States, 112 S.Ct. 1112

(1992).    In Williams, the Court considered the scope of appellate

review of a departure sentence where the decision to depart was

based in part on an invalid factor.     The Court concluded that, in

such cases, resentencing is necessary unless the reviewing court


                                  9
determines that the sentencing court's reliance on the invalid

factor was harmless.         Id. at 1120-21.             This holding does not

control the situation at issue here.               In this case, as in Hall, the

district     court's    decision       to    depart     was   supported      only    by

Defendants' substantial assistance to the government, a valid

factor under 18 U.S.C. § 3553(e).                The Fourth Circuit's holding in

HallSQthat     Williams    logically        extends     to    a   district   court's

determination of the extent of the departureSQpresupposes that the

Guidelines apply to both situations.                    They do not.         Although

federal law explicitly cabins the discretion of the district court

in departing upward or downward from an applicable Guideline range

and in departing downward from a statutory minimum, there is simply

no express limitation on the court's discretion in sentencing once

it has validly decided to depart.

      Except in such instances where federal law specifically limits

the district court's authority, the Guidelines are not intended to

disturb the traditional and almost complete deference afforded the

district court in sentencing:

      "The selection of the appropriate sentence from within
      the guideline range, as well as the decision to depart
      from the range in certain circumstances, are decisions
      that are left solely to the sentencing court.        The
      development of the guideline sentencing regime has not
      changed our view that, except to the extent specifically
      directed by statute, it is not the role of an appellate
      court to substitute its judgment for that of the
      sentencing court as to the appropriateness of a
      particular sentence."     Williams, 112 S.Ct. at 1121
      (emphasis added; citations and internal quotation marks
      omitted).

A   district    court     thus   has     almost       complete     discretion       over

sentencing matters to which federal law does not speak.                             This


                                            10
discretion is recognized in the Guidelines themselves, which report

that the Sentencing Reform Act "makes . . . clear that Congress

intended that no limitation would be placed on the information that

a court may consider in imposing an appropriate sentence . . . ."

U.S.S.G. § 1B1.4 (commentary) (emphasis added).

       Thus, although the Guidelines and the Sentencing Reform Act

determine the validity of a district court's decision whether to

depart, the decision as to the extent of the departure is committed

to the almost complete discretion of the district court, which may

consider factors beyond the narrower set that could independently

support the departure in the first instance.                 In an analogous

context, we have held that the district court may, in determining

a specific sentence within the applicable Guideline range, consider

a    factor   that   may   itself   not    support   an   upward   or   downward

departure.     In United States v. Lara-Velasquez, 919 F.2d 946 (5th

Cir. 1990), the defendant complained that the district court erred

in   considering     his   "rehabilitative     potential"    in    setting   his

sentence within the applicable Guideline range. We held that, even

if "rehabilitative potential" is not a proper basis for departing

from the Guideline range, id. at 955, the same factor may properly

influence a district court's determination of a specific sentence

within the prescribed range:

       "Because the determination of a sentence within the
       Guideline range does not require deviation from the
       Guidelines, the information a district court may consider
       in assessing sentence is necessarily quite broad: the
       court may consider any relevant information that the
       Sentencing Guidelines do not expressly exclude from
       consideration." Id.

The same analysis applies to a sentence outside the Guideline range

                                          11
from which the district court had a valid basis for downwardly

departing.   In both circumstances, because there is no express

limitation on the sentencing court's discretion, it is virtually

complete, and the sentence is unreviewable unless otherwise in

violation of federal statutory or constitutional law.5

     We thus disagree with the Fourth Circuit's decision in Hall.

In so doing, we side with the other Circuits that have considered

this question in similar contexts.   See United States v. Lucas, 17

F.3d 596, 600 (2d Cir. 1994) (holding that, although it is improper

to depart on the basis of a hypothetical state sentence, the same

factor can inform the district court's "broad discretion . . . in

determining the extent of a departure based on other grounds");

United States v. Newby, 11 F.3d 1143, 1149-50 (3d Cir. 1993)

(holding that a district court could consider the sentence of a

codefendant in determining the defendant's specific sentence within

the Guideline range), cert. denied, 115 S.Ct. 111 (1994); United

States v. Stanton, 975 F.2d 479, 481-82 (8th Cir. 1992) (same),

cert. denied, 113 S.Ct. 1331 (1993); United States v. Duarte, 901

F.2d 1498, 1499 (9th Cir. 1990) (holding that a district court may



5
     Defendants also argue that the district court improperly
relied, in part, on the following two factors in deciding not to
sentence them to the extent recommended by the district court:
(1) that the Defendants may seek further Rule 35 downward
departure recommendations for their possible future assistance,
and (2) that the monetary remuneration Defendants received for
their cooperation amounted to double compensation for their
assistance. For the same reasons stated in the opinion, even if
these factors do not form a valid basis for departing from a
Guideline range, the district court was within its discretion to
consider these factors in determining the extent of the downward
departures. We therefore need not discuss these points
separately.

                                12
consider a defendant's character in determining a specific sentence

within the Guideline range).

                            Conclusion

     Because the sentences imposed here were not in violation of

law, they are therefore

                                                         AFFIRMED.




                                13
