In the
United States Court of Appeals
For the Seventh Circuit

Nos. 98-1150 & 98-1151

United States of America,

Plaintiff-Appellee,

v.

Brian K. McMutuary and Dante A. Grier,

Defendants-Appellants.

Appeals from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 97 CR 25--Elaine E. Bucklo, Judge.

Argued January 11, 1999--Decided
on Resubmission June 21, 2000/* /**


     Before Fairchild, Manion and Kanne, Circuit Judges.

     Kanne, Circuit Judge. Brian McMutuary, Dante
Grier and Steven Brown participated in the armed
robbery of Southwest Financial Bank in Chicago.
A superseding indictment charged each with
conspiracy to commit armed bank robbery, armed
bank robbery and use of a firearm in connection
with a crime of violence. McMutuary also was
charged with one count of perjury. Brown entered
a plea of guilty on all counts of the original
indictment (which contained the same charges with
respect to Brown as the superseding indictment)
pursuant to a written plea agreement in which he
agreed to provide assistance to the government.
In considering Brown’s sentence, the district
court departed downward because of the
substantial assistance provided to the government
by Brown and because of his family circumstances
and sentenced Brown to a period of one year home
confinement followed by a period of probation.
After Brown pleaded guilty, a jury convicted
McMutuary and Grier on all counts of the
superseding indictment. The district court
sentenced McMutuary to 195 months in prison and
Grier to 138 months in prison.

      On appeal, Grier argues that the district court
erred by denying his motion to dismiss the
indictment for prejudicial pre-indictment delay.
McMutuary and Grier assert that the district
court erred in refusing to consider a downward
departure from their sentencing ranges based on
a perceived unjustified disparity between their
sentences and the sentence imposed on Brown. We
reject Grier’s argument regarding the pre-
indictment delay, and although we agree that an
unjustified disparity existed between the
sentence imposed on Brown and the sentences
imposed on McMutuary and Grier, we find no error
in the district court’s refusal to consider this
disparity in the computation of McMutuary’s and
Grier’s sentences. Accordingly, we affirm the
decisions of the district court.

I.   History

      On February 18, 1992, Brown entered Southwest
Financial Bank, where McMutuary worked as a coin
and currency teller, and presented a note to the
bank’s vault custodian demanding to be shown the
location of the bank’s safe deposit boxes. To
ensure the bank took his demand seriously, Brown
showed the custodian a handgun, which he had
placed in the waistband of his pants. The
custodian led Brown to the vault where McMutuary
was waiting. Brown then pulled the gun from his
waistband and instructed the custodian and
McMutuary to fill a duffle bag with money. Once
the bag was filled with money, Brown told
McMutuary to bind the custodian with tape. To
make it appear that McMutuary was not involved in
the robbery, Brown did the same to McMutuary
before exiting the bank.

      Events before and after the robbery clearly
established that McMutuary, Grier and Brown acted
in concert in robbing the bank. On the day before
the robbery, Grier approached Brown and inquired
about his interest in participating in a bank
robbery. Grier explained that he and McMutuary
intended to rob the bank where McMutuary worked,
and McMutuary’s participation in the scheme would
facilitate the robbery. Grier would simply enter
the bank, and McMutuary would fill his bag with
money. Based on Grier’s assurances regarding the
manner in which the plan would be carried out,
Brown agreed to participate in the robbery by
acting as the getaway driver.

      On the day of the robbery, Brown and Grier
parked McMutuary’s car across the street from the
bank and waited for McMutuary to contact them.
After receiving two pages on his beeper from
McMutuary, Grier entered the bank. He quickly
returned, informing Brown that a security guard
deterred him from following through with the
plan. A few minutes later, Brown entered the bank
and once he was satisfied that the security guard
was not at his post, presented a demand note to
the vault custodian. Brown left the bank upon
completion of the robbery and placed the money in
the trunk of McMutuary’s car, and Grier and Brown
drove off. Two days later, McMutuary, Brown and
Grier met at a nearby hotel and split the money.
      During the investigation conducted by the
Federal Bureau of Investigation, local
authorities and a federal grand jury, McMutuary
and Grier told conflicting stories regarding
their involvement in the robbery. Eventually, the
two recanted portions of their stories. Based in
part on the testimony of McMutuary and Grier and
their interviews with authorities, a federal
grand jury returned an indictment charging
McMutuary and Brown with conspiracy to commit
armed bank robbery in violation of 18 U.S.C. sec.
371, armed bank robbery in violation of 18 U.S.C.
sec. 2113(a) and (d) and use of a firearm in
connection with a crime of violence in violation
of 18 U.S.C. sec. 924(c). Additionally, McMutuary
was indicted on a single charge of perjury. A
superseding indictment was subsequently returned
by the grand jury charging McMutuary and Brown
with the same crimes and also charging Grier with
conspiracy to commit armed robbery, armed robbery
and use of a firearm in connection with a crime
of violence.

      Brown entered a plea of guilty on all counts of
the original indictment pursuant to a written
plea agreement in which he agreed to cooperate
with the government. McMutuary and Grier
proceeded to trial after the district court
denied Grier’s motion to dismiss the indictment
based on a claim of prejudicial pre-indictment
delay. The jury convicted both McMutuary and
Grier on all counts.

      A straightforward application of the United
States Sentencing Guidelines to Brown’s
conviction placed Brown in a sentencing range of
117 to 131 months--57 to 71 months for the
robbery and conspiracy charges, combined with a
consecutive 60-month minimum mandatory sentence
for the violation of sec. 924(c). In exchange for
Brown’s cooperation, the government specified in
the plea agreement that at the time of Brown’s
sentencing, it would file a motion pursuant to
U.S.S.G. sec. 5K1.1, requesting a downward
departure from the applicable Guidelines range
and the statutory minimum sentence to a term of
imprisonment one-third lower than the combined
term required by the Guidelines for the
conspiracy and armed robbery charges and the
additional term required by his plea of guilty to
the sec. 924(c) charge.

      Brown moved for an additional downward departure
based on extraordinary family circumstances. At
his sentencing hearing, members of Brown’s family
testified in support of his claim that he was
needed at home to care for his elderly and ill
parents and his eleven-year-old niece. Although
the government opposed Brown’s motion, the
government nevertheless moved for the downward
departure as agreed in Brown’s plea agreement.
Upon consideration of the motions made by both
Brown and the government, the district court
departed downward fourteen offense levels and
sentenced Brown to twelve months home detention
followed by a period of probation. In imposing
that sentence, the court cited both Brown’s
cooperation with the government and his family
circumstances as grounds for the departure, but
did not specifically assign either ground to any
aspect of the departure.

      Prior to sentencing, McMutuary and Grier moved
for downward departures based on a perceived
disparity between Brown’s sentence and the
sentences called for under their own Guidelines
ranges. The district court denied this motion,
reasoning that "the only way [the court] could
grant your motion . . . would be to say that I
granted an improper departure [with respect to
Brown], and I do not believe that I did."
Although the court rejected McMutuary’s and
Grier’s requests for downward departures, the
district court sentenced them to the lowest
sentences available under the Guidelines for the
conspiracy and armed robbery offenses combined
with the required consecutive sixty-month
sentence for the violation of sec. 924(c). The
district court sentenced Grier to a term of 138
months in prison. Because of an enhancement for
his perjury conviction, McMutuary received a term
of imprisonment of 195 months. Grier now appeals
the denial of the motion to dismiss the
indictment based on prejudicial pre-indictment
delay, and McMutuary and Grier both appeal the
sentences imposed on them by the district court.

II.    Analysis

A.    Pre-indictment Delay

      Grier was first named as a defendant in the
superseding indictment returned by the grand jury
on February 11, 1997--nearly five years after the
robbery. Grier claims that the government’s delay
in prosecuting him caused him actual and
substantial prejudice by severely hampering his
ability to defend himself against the charges
contained in the superseding indictment. Grier’s
claim of actual and substantial prejudice is
predicated upon his assertion that he was unable
to present the testimony of a material witness
who died during the period of the government’s
delay. Furthermore, Grier submits that the
prejudice he suffered was not outweighed by the
government’s proffered justification for its
delay. Accordingly, Grier contends that the
district court erred in denying his motion to
dismiss the indictment based on pre-indictment
delay. We review a district court’s decision to
deny a motion to dismiss an indictment for
prosecutorial delay for an abuse of discretion.
See United States v. Spears, 159 F.3d 1081, 1084
(7th Cir. 1998); United States v. Pardue, 134
F.3d 1316, 1319 (7th Cir. 1998).

      A defendant’s primary safeguard against
unreasonable prosecutorial delay is derived from
the applicable statute of limitations. See
Pardue, 134 F.3d at 1319. However, "we have also
noted that the Fifth Amendment’s due process
clause plays a limited role in assuring that the
government does not subject a defendant to
oppressive delay." Spears, 159 F.3d at 1084. To
establish that a pre-indictment delay violated
the Due Process Clause, a defendant first must
demonstrate that the delay caused actual and
substantial prejudice to his right to a fair
trial. See United States v. Sowa, 34 F.3d 447,
450 (7th Cir. 1994). A defendant’s burden to show
actual and substantial prejudice is an exacting
one; the showing must rest upon more than mere
speculative harm. See United States v. Canoy, 38
F.3d 893, 902 (7th Cir. 1994). The defendant’s
allegations of actual and substantial prejudice
must be "specific, concrete, and supported by
evidence." Sowa, 34 F.3d at 450 (quoting Pharm v.
Hatcher, 984 F.2d 783, 787 (7th Cir. 1993)); see
also United States v. Koller, 956 F.2d 1408, 1415
(7th Cir. 1992). If the defendant succeeds in
showing prejudice, the burden shifts to the
government "[to] show that the purpose of the
delay was not to gain a tactical advantage over
the defendant or for some other impermissible
reason." Spears, 159 F.3d at 1084-85; see also
Sowa, 34 F.3d at 451.

      As stated, Grier’s claim of actual and
substantial prejudice is related entirely to his
inability to call a single witness at trial.
Grier contends that the testimony of his aunt,
Margaret Blackman, was critical to his defense,
but that he was unable to present this testimony
because she died prior to the return of Grier’s
indictment by the grand jury. According to the
affidavit of Blackman’s daughter, Cassandra
Blackman, had Margaret Blackman been called to
testify at trial, she would have testified that
she lived with Grier and that he did not leave
their residence on the day of the robbery.
Therefore, this testimony would have provided
Grier with an alibi defense.

      Although the loss of a vital defense witness
may satisfy a defendant’s burden to demonstrate
prejudice, we do not conclude that Grier suffered
actual and substantial prejudice as a result of
his inability to call Margaret Blackman as a
witness in the present case. In light of other
testimony offered at trial on Grier’s behalf, it
would be difficult to characterize Margaret
Blackman as a "vital defense witness." Her
testimony would have been largely cumulative of
the testimony offered by Cassandra Blackman, who
testified that she, like Margaret Blackman, lived
with Grier and that he was at home during the
entire day of the robbery. The testimony of
Margaret Blackman would have simply corroborated
the alibi defense ultimately offered by Cassandra
Blackman. As we have stated, "the absence of
cumulative testimony cannot, as a matter of law,
result in actual prejudice." Spears, 159 F.3d at
1085-86 (quoting United States v. Comosona, 848
F.2d 1110, 1114 (10th Cir. 1988)). To the extent
that the jury may have viewed Cassandra
Blackman’s testimony as biased or unworthy of
credence because she was a member of Grier’s
family, Margaret Blackman’s testimony would have
done little to cure these perceptions.
Accordingly, Grier failed to demonstrate that he
suffered actual and substantial prejudice as a
result of the pre-indictment delay.

      We recognize in passing that even if we were to
conclude that Grier suffered actual and
substantial prejudice, the government offered a
credible explanation for the delayed filing of
the indictment that would not be outweighed by
the prejudice claimed by Grier. The government
informed the district court that the timing of
the indictment was designed to permit the pursuit
of evidence that would corroborate the
information provided to the government by Brown
after he implicated his co-defendants. The
government explained that it was necessary to
obtain and analyze bank records, hotel records,
credit histories and employment histories, among
other evidence. The timing of the indictment was
further necessitated to provide the government
with an opportunity to pursue evidence of the
defendants’ use of the proceeds of the robbery.
Finally, it is also worth noting that there has
been no showing that the explanation offered by
the government was pretextual. Grier has pointed
to no evidence suggesting that the government
even knew of Margaret Blackman’s existence or her
health condition. The cause of the delay can only
be characterized as investigatory in nature, and
in such cases, we will not find a due process
violation. See Sowa, 34 F.3d at 451.

B.   Sentencing Disparities

      McMutuary and Grier claim that the district
court erred in refusing to consider the disparity
between Brown’s sentence and their own sentences
as a basis to depart downward from the range
imposed by the Guidelines. They contend that the
disparity between the sentence imposed on Brown
and their own sentences cannot be justified under
a proper application of the Guidelines. For this
reason, the district court should have considered
this unjustified disparity in deciding whether to
depart from the applicable Guidelines range in
imposing their sentences.

      We review decisions regarding departures from
the Guidelines for abuse of discretion. See
United States v. Gonzalez-Portillo, 121 F.3d
1122, 1123 (7th Cir. 1997). This standard applies
"to both factual determinations and . . . ’review
to determine that the discretion was not guided
by erroneous legal conclusions.’" Id. at 1124
(quoting Koon v. United States, 518 U.S. 81, 100
(1996)). In applying this standard, we recall
that "whether a factor is a permissible basis for
departure under any circumstances is a question
of law, and the court of appeals need not defer
to the district court’s resolution of the point"
because "[a] district court by definition abuses
its discretion when it makes an error of law."
Koon, 518 U.S. at 100.

1.   Koon and Meza

      Because defendants’ arguments are based on an
understanding of the Supreme Court’s holding in
Koon, and our own holding in United States v.
Meza, 127 F.3d 545, 550 (7th Cir. 1996), we must
first review these decisions. In promulgating the
Sentencing Guidelines, the Sentencing Commission
intended "the sentencing courts to treat each
guideline as carving out a ’heartland,’ a set of
typical cases embodying the conduct that each
guideline describes." Koon, 518 U.S. at 93
(quoting U.S.S.G. ch. 1, pt. A, intro. cmt. 4(b)
(1995)). While a court generally must impose a
sentence within the applicable Guidelines range,
the Sentencing Commission realized that certain
cases that for one reason or another were
’unusual’ would fall outside the heartland. In
such atypical cases, the sentencing court must
consider whether particular factors warrant a
departure from the applicable Guidelines range.
See id. at 94 ("Atypical cases were not
’adequately taken into consideration,’ and
factors that may make a case atypical provide
potential bases for departure."). Therefore,
"before a district court is permitted to depart
in a given case, certain features of the case
must be found ’unusual’ enough for it to fall
outside the ’heartland’ of cases covered in the
applicable guideline." United States v. Leahy,
169 F.3d 433, 440 (7th Cir. 1999).

      However, the Guidelines do not leave the
determination of whether a factor merits a
departure from the heartland entirely to the
discretion of the district court. Instead, the
Sentencing Commission has delineated four
categories of sentencing factors to determine
whether a case is atypical: forbidden,
encouraged, discouraged and unmentioned. Among
these categories, only "forbidden" factors may
never provide a basis for departure from a
sentencing range. These factors include race,
sex, national origin, creed, religion,
socioeconomic status, physical conditions, such
as drug or alcohol dependence, and economic
hardship. See U.S.S.G. sec.sec. 5H1.10, 5H1.4,
5K2.12. District courts are otherwise free to
depart if "the court finds that there exists an
aggravating or mitigating circumstance of a kind,
or to a degree, not adequately taken into
consideration by the sentencing commission in
formulating the guidelines that should result in
a sentence different from that described." 18
U.S.C. sec. 3553(b).

      In Koon, the Supreme Court recognized that a
sentencing court must make two inquiries in
determining whether a specific factor can be an
appropriate basis for departure. 518 U.S. at 109.
The court must first determine "whether the
[Sentencing] Commission has proscribed, as a
categorical matter, consideration of the factor."
Id. If the Commission has not determined that the
factor is prohibited, "the sentencing court must
determine whether the factor, as occurring in the
particular circumstances, takes the case outside
the heartland of the applicable Guideline." Id.
The Supreme Court held that "for the courts to
conclude that a [non-prohibited] factor must not
be considered under any circumstances would be to
transgress the policymaking authority vested in
the Commission." Id. at 106-07.

      In Meza, we considered whether, in light of
Koon, a district court could rely on a disparity
between sentences of co-conspirators in order to
justify a departure from a Guidelines range not
subject to a statutory minimum. 127 F.3d at 549-
550. At the time of sentencing, the defendant in
Meza moved for a downward departure based on a
perceived disparity between the sentence called
for under the Guidelines in his case and the
sentences previously imposed on his co-
conspirators. These co-conspirators had received
downward departures pursuant to U.S.S.G. sec.
5K1.1 for cooperating with the government.
Although the defendant refused to cooperate with
the government, he still believed that a
departure was warranted in his case. The
defendant argued that Koon required the district
court to consider the sentencing disparity as a
potential basis for departure because the
Sentencing Commission, as a categorical matter,
has not proscribed any consideration of
sentencing disparities. See Meza, 127 F.3d at
548.

      Although we denied the defendant’s appeal, we
declined to hold that a sentencing court should
never consider the disparity between sentences of
co-defendants as a basis for departure from the
applicable Guidelines range because of the
prohibition against across-the-board rejection of
a factor recognized by the sentencing court in
Koon, 518 U.S. at 106-07, and the directive that
the sentencing court should consider "the need to
avoid unwarranted sentence disparities among
defendants with similar records who have been
found guilty of similar conduct." 18 U.S.C. sec.
3553(a)(6). See also Meza, 127 F.3d at 549-50.
Instead, we bifurcated our analysis between
"justified" and "unjustified" sentencing
disparities. We described a justified disparity
as one resulting from a proper application of the
Guidelines to the particular circumstances of a
case./1 It is clear that the Sentencing
Commission adequately considered justified
disparities between the sentences "as it is the
Guidelines that produce the disparity," Meza, 127
F.3d at 550, and a factor may only be considered
as a basis for departure if it has not been
adequately taken into consideration by the
Sentencing Commission in formulating the
Guidelines. See 18 U.S.C. sec. 3553(b).
Therefore, we concluded that a justified
disparity could never serve as a basis for a
departure from the Guidelines sentencing range.
See Meza, 127 F.3d at 550. Because we concluded
that the sentencing disparity that existed
between co-conspirators in Meza was justified, we
affirmed the decision of the district court not
to consider it as a basis for departure. See id.

      Although unnecessary to the holding of the
case, we also considered the applicability of
considering an unjustified disparity, which we
defined as "one that does not result from a
proper application of the Guidelines. In other
words, it is a disparity in sentences that cannot
be explained by a comparison of each defendant
against the Guidelines as a set of rules." Meza,
127 F.3d at 550. Because we found no evidence
that the Sentencing Commission considered the
possibility of unjustified departures in
formulating the Guidelines, we concluded that an
unjustified disparity could potentially serve as
a factor to consider in determining whether to
depart from the applicable Guidelines range. See
id.

2.   Justification for Disparity

      McMutuary and Grier contend that the sentencing
disparity of which they complain arose from the
district court’s decision to sentence their co-
conspirator Brown to a twelve-month period of
home detention and probation, while they received
sentences within the applicable Guidelines range.
McMutuary and Grier claim that Brown’s sentence
did not result from a proper application of the
Guidelines. As such the disparity between the
sentences of the co-defendants is unjustified,
and they contend that the sentencing court should
have considered this unjustified disparity in
determining whether to depart from the applicable
Guidelines range. We turn first to an examination
of Brown’s sentence.

a.   Facts

      Brown pleaded guilty to the same charges for
which McMutuary and Grier were convicted:
conspiracy to commit bank robbery in violation of
18 U.S.C. sec. 371; armed bank robbery in
violation of 18 U.S.C. sec. 2113(a) and (d); and
use of a firearm in relation to a crime of
violence in violation of 18 U.S.C. sec. 924(c).
The district court concluded that Brown’s plea of
guilty to these charges resulted in a total
offense level of twenty-four and a criminal
history category of II under the Guidelines. This
calculation resulted in a sentencing range of
fifty-seven to seventy-one months, with an
additional consecutive sixty-month sentence
imposed on Brown as a result of the violation of
sec. 924(c)./2

      As a result of Brown’s cooperation with the
government, the government included a paragraph
in Brown’s plea agreement providing that at the
time of Brown’s sentencing, the government would
move the court pursuant to U.S.S.G. sec. 5K1.1
"to depart from the applicable Guidelines range
and the statutory minimum sentence, and to impose
a sentence of imprisonment . . . of 66% of the
low end of the combined sentencing range that
results from the aggregation of the five-year
mandatory minimum prison term for carrying and
using a firearm during and in relation to a crime
of violence with the low end of the applicable
guideline range for the remaining offenses."
Prior to sentencing, Brown also moved for a
downward departure based on extraordinary family
circumstances, and at his sentencing, he
presented testimony of family members in support
of his claim that he was needed at home to care
for his parents and his eleven year-old niece.
The government opposed this motion, but at
sentencing moved pursuant to the plea agreement
for departure under U.S.S.G. sec. 5K1.1.

      After considering both the government’s and
Brown’s motions, the district court departed
downward to an offense level of ten and sentenced
Brown to a period of twelve months of home
detention and probation. In imposing that
sentence, the court cited both Brown’s
cooperation and his family circumstances, but
failed to assign either ground to any particular
aspect of its departure. In sentencing Brown, the
district court departed below both the applicable
Guidelines range and the statutory minimum
mandatory five-year sentence required by the
count charging Brown with violating sec. 924(c).
While a court may impose a sentence below a
defendant’s Guidelines range based on a
substantial assistance motion, imposition of a
sentence below a statutory minimum (such as the
one required by sec. 924(c)) requires a motion by
the government pursuant to 18 U.S.C. sec.
3553(e)./3 In this case, sec. 3553(e) provides
for only one basis for departure below a
statutory minimum mandatory--upon motion by the
government for substantial assistance provided by
the defendant. See United States v. DeMaio, 28
F.3d 588, 591 (7th Cir. 1994) ("[T]he district
court may only depart below a statutory mandatory
minimum sentence to reflect a defendant’s
substantial assistance to the authorities.");
United States v. Thomas, 11 F.3d 732, 736-37 (7th
Cir. 1993) (stating that departures from minimum
mandatory sentences allowed only for assistance
to the government). Absent a sec. 3553(e) motion
by the government, the sentencing court may not
depart below the statutory minimum mandatory
except in limited circumstances not relevant to
this case.

b.   Analysis

      McMutuary and Grier contend that the district
court’s decision to depart below the statutory
mandatory minimum sentence resulted from an
improper reliance on Brown’s family
circumstances. They assert that the government
did not move pursuant to sec. 3553(e) for a
departure below the statutory mandatory minimum
required by the sec. 924(c) count, and,
therefore, the district court must have
necessarily relied on Brown’s family
circumstances. Although the government submits
that it moved pursuant to sec. 3553(e) for a
departure below the mandatory minimum, the
government concedes that "it seems impossible to
say that the district court did not incorrectly
base its decision to depart below the five-year
minimum, at least in part, on Brown’s family
circumstances." The defendants believe the
erroneous nature of Brown’s sentence resulted in
a sentencing disparity that cannot be justified
by a proper application of the Guidelines.
Therefore, they argue that the district court
should have considered this disparity when
examining their motions for a downward departure.
      The government’s contention that it moved
pursuant to sec. 3553(e) for a downward departure
below the statutory mandatory minimum with
respect to Brown’s sentence is, at the very
least, disingenuous. While an explicit reference
to sec. 3553(e) is not necessarily required
before a sentencing court may depart below a
statutory minimum, "the Government must in some
way indicate its desire or consent that the court
depart below the statutory minimum before the
court may do so." Melendez v. United States, 518
U.S. 120, 126 n.5 (1996).

      The government bases its argument that it
communicated its consent to a departure below the
statutory mandatory minimum on certain language
in the plea agreement. A paragraph in the plea
agreement specified that at the time of Brown’s
sentencing the government would request that the
district court depart downward pursuant to
U.S.S.G. sec. 5K1.1 "from the applicable
sentencing guidelines range and the statutory
minimum sentence."

      However, when the language of the plea
agreement is juxtaposed with other language in
the plea agreement and the government’s oral
motion for departure made at the time of Brown’s
sentencing, it is clear that the government did
not desire or consent to a departure below the
statutory mandatory minimum. The terms of the
plea agreement stated that the government would
request that the district court reduce by one-
third the combined sentencing range that resulted
from the aggregation of the five year mandatory
prison term for the sec. 924(c) violation with
the applicable Guidelines range for the remaining
offenses. The request for a one-third departure
was reiterated at Brown’s sentencing hearing.
However, no mention was made of a departure below
the statutory mandatory minimum. At best, Brown
could have received a sentence of seventy-eight
months pursuant to the terms of the plea
agreement. We recognize that the district court
would not have been bound by the government’s
request for a one-third reduction.

      Nevertheless, our examination of the agreement
and the government’s motion at Brown’s sentencing
hearing belies any suggestion that the government
desired or consented to a departure below the
statutory mandatory minimum. It necessarily
follows that the district court was without power
"to impose a sentence below the statutory minimum
to reflect a defendant’s cooperation when the
Government has not authorized such a sentence,
but has instead moved for a departure only from
the applicable Guidelines range." Melendez, 518
U.S. at 126. The fact that the government passed
up the opportunity to appeal the error in Brown’s
sentence has no impact on this conclusion.

      It is clear then that the district court erred
in departing below the statutory mandatory
minimum of five years imprisonment when it
imposed a sentence of probation and home
confinement upon Brown. Because Brown would not
have received this sentence in the absence of the
district court’s error, the error contributed, at
least in part, to the disparity in the sentences
imposed. This disparity is not "the result of a
proper application of the Guidelines to the
particular circumstances of [this] case." Meza,
127 F.3d at 550./4 Rather, it is the result of
the district court’s error in departing below the
statutory mandatory minimum when sentencing
Brown. For this reason, the disparity in the
present case can only be described as unjustified
disparity between the sentences of co-
conspirators. McMutuary and Grier rely on this
error to contend that the sentencing court should
have considered the disparity between their
sentences and Brown’s sentence in determining
their sentences.

3.   Applicability of Meza

      We now are confronted with an issue that was
anticipated in Meza: whether the district court
must consider an unjustified disparity in the
sentencing of co-defendants as a factor in
determining whether to grant a downward
departure. In Meza, we noted that in the case of
an unjustified disparity, the sentencing court
should consider the disparity to determine
whether a defendant merits a departure downward
"so that the federal courts may provide ’the
even-handedness and neutrality that are the
distinguishing marks of any principled system of
justice.’" 127 F.3d at 550 (quoting Koon, 518
U.S. at 113). While we acknowledge that "[t]he
goal of the Sentencing Guidelines is, of course,
to reduce unjustified disparities," Koon, 518
U.S. at 113, we believe that the interpretation
of the term "unjustified disparity," provided as
dicta in Meza, which would require the sentencing
court to consider all unjustified sentencing
disparities between co-defendants as a basis to
depart from the applicable Guidelines range,
focuses too narrowly on comparison of sentences
of participants in one offense, rather than on
comparison of sentences of all persons convicted
of the same offense, nationwide.

      As we noted in Meza, the determination of
whether to consider a factor as a permissible
basis for departure depends on whether the
Commission has adequately taken it into
consideration in its construction of each
Guideline’s heartland. See Meza, 127 F.3d at 550.
By the creation of a heartland, the Commission
intended that each federal sentence for the same
federal crime be judged under the same standard.
See 28 U.S.C. sec. 991(b) ("The purposes of the
United States Sentencing Commission are to . . .
provide certainty and fairness in meeting the
purposes of sentencing, avoiding unwarranted
sentencing disparities among defendants with
similar records who have been found guilty of
similar criminal conduct . . ."). In furtherance
of this purpose, the Sentencing Commission
promulgated Guidelines sec. 1B1.4, which limits
the information that may be considered in
imposing a sentence to "any information
concerning the background, character and conduct
of the defendant." U.S.S.G. sec. 1B1.4. The
sentences imposed on others who have been
convicted of similar criminal conduct do not
constitute information about the background,
character or conduct of a particular defendant.
Rather, the Guidelines by their nature anticipate
the range of sentences of others found guilty of
similar criminal conduct, suggesting that, by
promulgating them, the Commission expressly
considered the degree to which sentencing courts
may consider the sentences given to others.
Therefore, a plain language interpretation of
sec. 1B1.4 would seem to expressly preclude
sentencing courts from considering the sentences
imposed on others as a basis to be used for
imposing a sentence.

      However, sec. 1B1.4 may also be construed as a
grant of authority to consider the character and
conduct of the defendant beyond those acts for
which the defendant was convicted, and at least
one other court has found that this guideline was
not intended as "a limitation on the court’s
power to consider other factors if appropriate."
United States v. Newby, 11 F.3d 1143, 1149 (3d
Cir. 1993). This expansive interpretation of sec.
1B1.4 corresponds more directly to the statutory
requirement of sec. 3553(a)(6), which directs
courts to consider "the need to avoid unwarranted
sentence disparities among defendants with
similar records who have been found guilty of
similar conduct." 18 U.S.C. sec. 3553(a)(6). On
this basis, courts occasionally have included
sentencing disparity between co-defendants among
the factors to be considered in departing from
the heartland of the Guidelines’ sentencing
range. See United States v. Daas, 198 F.3d 1167,
1180-81 (9th Cir. 1999); Meza, 127 F.3d at 550;
United States v. Nelson, 918 F.2d 1268 (6th Cir.
1990). The inclusion of sentencing disparity
between co-defendants as a factor in the
determination of whether to depart seemingly
accords with Koon’s directive that courts of
appeals not render impermissible a factor not
contemplated by the Sentencing Commission. See
Koon, 518 U.S. at 106-107.

      Despite Koon, most other courts have concluded
that sentencing disparities between co-defendants
should never constitute a permissible basis for
departure from the Guidelines’ sentencing range.
See, e.g., United States v. McKnight, 186 F.3d
867, 869 (8th Cir. 1999) (citing United States v.
Polanco, 53 F.3d 893, 897 (8th Cir. 1995));
United States v. Contreras, 180 F.3d 1204, 1209-
10 (10th Cir. 1999); United States v. Lawrence,
179 F.3d 343, 351 (5th Cir. 1999); United States
v. Gallegos, 129 F.3d at 1143-44; United States
v. Perkins, 108 F.3d 512, 515 (4th Cir. 1997).
Those courts rejecting the permissibility of
using co-defendants’ sentences as a factor to
depart distinguish their decisions from the
appellate court conduct prohibited by Koon, 518
U.S. at 107, by claiming that the rejection of
this factor acted to clarify the types of
sentencing disparities that courts must consider
under sec. 3553(a)(6). See Gallegos, 129 F.3d at
1143. In Gallegos, the court explained that the
promulgation of the Guidelines was an attempt by
the Sentencing Commission to "eliminate
unwarranted disparities [in sentencing]
nationwide," 129 F.3d at 1143 (quoting United
States v. Garza, 1 F.3d 1098, 1100 (10th Cir.
1993)), rather than to eliminate disparity
between co-defendants. As such, the disparity
between co-defendants’ sentences was an implicit
consideration of the Sentencing Commission.

      For this reason, rather than curing the problem
of nationwide sentencing disparity, consideration
of the sentences given to co-defendants "creates
a new and entirely unwarranted disparity between
the defendant’s sentence and that of all
similarly situated defendants throughout the
country." Joyner, 924 at 460-61. In addition, in
Gallegos, the court noted the practical
consideration that allowing consideration of
sentencing disparities among co-defendants as a
basis for departure might discourage the
government from offering plea bargains in cases
involving multiple defendants, see United States
v. Garrett, 179 F.3d 1143, 1145 (9th Cir. 1999),
a scenario that we would find troubling, although
we find this scenario inherently improbable.

      In Meza, we held that justified disparities,
which include all disparities which arise from a
proper application of the Sentencing Guidelines,
should never be considered as permissible bases
for departure. 127 F.3d at 549. However, we
indicated that any unjustified disparity in
sentences between co-conspirators was
"potentially a sentencing factor to consider" as
a basis for departure from the sentencing range.
Id. at 550.
      In light of the promulgation of Guidelines with
the intent to create uniformity of sentencing
nationwide for all similarly situated defendants,
we believe that the Sentencing Commission
implicitly considered the potential for disparity
of sentences, whether justified or unjustified,
between co-defendants in its creation of an
applicable sentencing range. As such, we conclude
that disparities between the sentences of co-
defendants ordinarily should not be considered as
a factor in the decision to depart from the
Guidelines. Because district courts must only
consider factors that have not been considered by
the Sentencing Commission, see 28 U.S.C. sec.
3553(b), our holding that the naked existence of
an unjustified disparity between the sentences of
co-conspirators should not be considered as a
basis for departure from the applicable
sentencing range of the Guidelines does not
conflict with the proscription in Koon that the
appellate courts not create new classes of
impermissible grounds for departure. As such, we
believe that the sentencing court should consider
only an "unjustified disparity" in the sentencing
of co-defendants when the sentence imposed on the
appellant co-defendant is "unjustified" in length
in comparison to the sentences imposed on all
other individuals appropriately sentenced under
the Guidelines for similar criminal conduct.

      On this basis, we correct the dicta in Meza
that suggests that an unjustified disparity in
co-conspirators’ sentences should be considered
as a factor in the decision to depart from the
Guidelines. Instead, the sentencing court should
consider unjustified disparities in only those
cases where the unjustified disparity between co-
defendants actually creates a disparity between
the length of the appellant’s sentence and all
other similar sentences imposed nationwide. We
refrain from holding, however, that unjustified
disparities may never be considered as bases for
departure. In certain circumstances, such as when
an unjustified disparity is created by the abuse
of prosecutorial discretion, but see United
States v. Krilich, 159 F.3d 1020, 1031 (7th Cir.
1998) (holding that proper exercise of
prosecutorial discretion does not create
impermissible disparity), the sentencing court
may consider the disparity as a factor in the
determination whether to depart from the sentence
of a co-defendant. In addition, a sentencing
court abuses its discretion by deciding to depart
from the applicable sentencing range for the
sentence of any defendant, whenever such
departure creates an unjustified disparity
between the sentence of that defendant and the
sentences of all other similarly situated
individuals nationwide.
      Neither McMutuary nor Grier contend that the
district court erred in the computation of their
sentences, nor did the district court depart from
the applicable Guidelines range in their
sentences. Absent a claim that the court should
have considered the unjustified disparity created
by the improper sentence the court granted Brown,
neither party could even appeal the court’s
failure to consider a downward departure. See
United States v. Mattison, 153 F.3d 406, 413 (7th
Cir. 1998). Both McMutuary and Grier were
sentenced to a term of imprisonment consistent
with all other defendants convicted of similar
criminal conduct, and neither party has presented
any evidence that would suggest that a disparity
exists between their sentences and the sentences
of all other similarly situated defendants
nationwide. For this reason, even though there
was an unjustified sentence disparity relative to
their co-defendant Brown, there was no
unjustified or unwarranted disparity in these
appellants’ sentences, as those terms are used in
Koon or in sec. 3553(a)(6). Were we to credit the
appellants’ arguments and reduce their sentences
accordingly, this court would be creating the
type of unjustified disparity between their
sentences and the sentences of all other
similarly situated defendants that the Guidelines
were promulgated to avoid. We cannot abide by
such a rule, which would allow three wrongs to
equal one right. McMutuary and Grier fail to
present an argument that the sentences imposed on
them are illegally long, and we affirm the
imposition of their sentences.

III.   Conclusion

      For the reasons stated herein, we Affirm both the
district court’s rejection of Grier’s motion to
dismiss for pre-indictment delay and the
sentences imposed on Grier and McMutuary by the
district court.

FOOTNOTES

/* This court originally affirmed in part and
reversed in part the decisions of the district
court in United States v. McMutuary, 176 F.3d 959
(7th Cir. 1999). However, we subsequently granted
the government’s petition for rehearing and
vacated our original opinion. See United States
v. McMutuary, 200 F.3d 499 (7th Cir. 1999). We
have issued this opinion without additional oral
argument.

/** Because we now correct certain statements in
United States v. Meza, 127 F.3d 545 (7th Cir.
1998), this opinion has been circulated among all
judges of this court pursuant to Circuit Rule
40(e). No judge favored a rehearing en banc.

/1 In Meza, we identified several examples of how a
proper application of the Guidelines could create
a sentencing disparity. 127 F.3d at 549-50. It is
clear from the examples set forth in Meza that
the Commission contemplated that certain
disparities in sentencing between co-defendants
or co-conspirators could result from a proper
application from the Guidelines. Therefore,
justified disparities may never serve as a basis
for departure. See also United States v.
Gallegos, 129 F.3d 1140, 1144 (10th Cir. 1997)
("[A] departure based on a disparity between co-
defendants is not justified when sentences are
dissimilar because of a plea bargain."); United
States v. Joyner, 924 F.2d 454, 460-61 (2d Cir.
1991) ("To reduce the sentence by a departure
because the judge believes that the applicable
range punishes the defendant too severely
compared to a co-defendant creates a new and
entirely unwarranted disparity between the
defendant’s sentence and that of all similarly
situated defendants throughout the country."). As
the Fourth Circuit also explained in United
States v. Withers, 100 F.3d 1142, 1149 (4th Cir.
1996):

To base a defendant’s sentence on a co-
conspirator’s sentence is a short-sighted
approach which ignores the Guidelines’ attempt to
eliminate unwarranted sentencing disparities
nation-wide . . . The Guidelines’ goal of
national sentencing uniformity is not aimed only
at the particular criminal conduct that co-
conspirators may share, but also addresses other
factors that often vary between co-conspirators
like acceptance of responsibility and assistance
to the government.

/2 In its current form, 18 U.S.C. sec.
924(c)(1)(A)(i) provides:

[A]ny person who, during and in relation to any
crime of violence or drug trafficking crime
(including a crime of violence or drug
trafficking crime that provides for an enhanced
punishment if committed by the use of a deadly or
dangerous weapon or device) for which the person
may be prosecuted in a court of the United
States, uses or carries a firearm, or who, in
furtherance of any such crime, possesses a
firearm, shall, in addition to the punishment
provided for such crime of violence or drug
trafficking crime . . . be sentenced to a term of
imprisonment of not less than five years . . . .

/3 18 U.S.C. sec. 3553(e) provides:

Upon motion of the Government, the court shall
have the authority to impose a sentence below a
level established by statute as minimum sentence
so as to reflect a defendant’s substantial
assistance in the investigation or prosecution of
another person who has committed an offense.

      Pursuant to 18 U.S.C. sec. 3553(f)(1)-(5), a
defendant may also be eligible for a reduction
below the mandatory minimum sentence if the
sentencing court finds that the defendant has
fulfilled five requirements. See also U.S.S.G.
sec. 5C1.2 (reiterating these requirements). This
section is referred to as a "safety valve"
provision and limits the applicability of
statutory minimum sentences as to "first-time,
non-violent drug offenders who were not
organizers of criminal activity and who have made
a good faith effort to cooperate with the
government." United States v. Arrington, 73 F.3d
144, 147 (7th Cir. 1996).

/4 The government’s effort to cast the error made by
the district court as a "non-Guidelines error"
with the effect of 18 U.S.C. sec. 3553(e)
operating completely outside the context of the
Guidelines is of no avail. Proper application of
the Guidelines requires more than a rote
computation of Criminal History Categories and
Guidelines ranges. Statutory mandatory minimum
sentences are explicitly contemplated in several
sections of the Guidelines, and the Guidelines
address how courts should deal with such
sentences. For example, U.S.S.G. sec. 2K2.4
specifically refers to the effect of sec. 924(c)
upon a defendant’s sentence: "If the defendant,
whether or not convicted of another crime, was
convicted under 18 U.S.C. . . . sec. 924(c) . .
., the term of imprisonment is that required by
the statute." U.S.S.G. sec. 2K2.4.
