181 F.3d 128 (D.C. Cir. 1999)
In re Sealed Case No. 97-3112(Sentencing Guidelines' "Substantial Assistance")
No. 97-3112
United States Court of AppealsFOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued En Banc January 27, 1999Decided July 9, 1999

[Copyrighted Material Omitted]
Appeal from the United States District Court for the District of Columbia (No. 95cr00031-02)
A.J. Kramer, Federal Public Defender, argued the cause  and filed the briefs for appellant.
John R. Fisher, Assistant U.S. Attorney, argued the cause  for appellee.  With him on the brief was Wilma A. Lewis,  U.S. Attorney.
Before:  Edwards, Chief Judge, and Wald, Silberman,  Williams, Ginsburg, Sentelle, Henderson, Randolph, Rogers,  Tatel, and Garland, Circuit Judges.


1
Opinion for the Court filed by Circuit Judge Garland, with  whom all members of the court join.


2
Concurring opinion filed by Chief Judge Edwards and  Circuit Judge Tatel.


3
Concurring opinion filed by Circuit Judge Sentelle.


4
Concurring opinion filed by Circuit Judge Henderson.

Garland, Circuit Judge:

5
Under section 5K1.1 of the United  States Sentencing Guidelines (U.S.S.G.), a district court may  sentence a criminal defendant below the guideline range  prescribed for the offense, "[u]pon motion of the government  stating that the defendant has provided substantial assistance  in the investigation or prosecution of another person who has  committed an offense."  U.S.S.G. § 5K1.1, p.s. (1997).1  This  court was convened en banc to consider whether a district  court also has authority under the Guidelines to depart from  the applicable range when the government declines to file  such a motion.  We hold that it does not.


6
* A district court is generally required to impose a criminal  sentence from within the range prescribed by the Sentencing  Guidelines.  18 U.S.C. § 3553(b).  That range is calculated by  identifying the guideline keyed to the defendant's offense  conduct, applying certain specified adjustments, and coordinating the adjusted offense level with a criminal history  category based on the defendant's prior criminal conduct. See U.S.S.G. § 1B1.1.  Employing that analysis in this case,  the district court calculated the applicable guideline range  and sentenced defendant to forty months in prison, a point in  the middle of the range.2


7
Under certain circumstances, a court may depart downward from the sentencing range generated by the Guidelines. See 18 U.S.C. § 3553(b).  Defendant contended that assistance he rendered to the government in connection with the  investigation of other offenders qualified him for a departure  under Guidelines  5K1.1.  The government, however, declined to file a motion stating that defendant had provided  substantial assistance.  In accord with our decision in United  States v. Ortez, 902 F.2d 61, 64 (D.C. Cir. 1990), the district  court held that such a motion was a "prerequisite to downward departure from a guidelines sentence for substantial  assistance," and denied defendant's request.


8
In In re Sealed Case (Sentencing Guidelines' "Substantial  Assistance"), 149 F.3d 1198 (D.C. Cir. 1998), a panel of this  court reversed.  The panel acknowledged that our holding in  Ortez barred a departure for substantial assistance in the  absence of a government motion.  In the panel's view, however, the Supreme Court effectively overruled Ortez in Koon v.  United States, 518 U.S. 81 (1996), leaving district courts free  "to depart from the Guidelines based on a defendant's substantial assistance where circumstances take the case out of  the relevant guideline heartland."  149 F.3d at 1204.  Because the district court had concluded that it lacked authority  to depart without a motion, the case was remanded for  possible resentencing.  Id.  On November 3, 1998, we granted the government's suggestion for rehearing en banc, and  vacated the portion of the panel's opinion holding that departures for substantial assistance are available in the absence of  a government motion.3


9
The question at issue here--whether a district court may  depart without a motion under any circumstances--is a question of law which we effectively review de novo.  See United  States v. Sun-Diamond Growers, 138 F.3d 961, 975 (D.C. Cir.  1998) (citing Koon, 518 U.S. at 100), aff'd on other grounds,  119 S. Ct. 1402 (1999).  Applying that standard, we now  reaffirm our prior holding in Ortez and affirm the judgment  of the district court.

II

10
Our analysis begins with the language of section 5K1.1,  which reads, in relevant part:  "Upon motion of the government stating that the defendant has provided substantial  assistance in the investigation or prosecution of another person who has committed an offense, the court may depart from  the guidelines."  The question is whether the United States  Sentencing Commission intended the phrase, "[u]pon motion  of the government," to mean only upon motion of the government.  In Ortez, and in five subsequent opinions issued prior  to the Supreme Court's decision in Koon, we held that a  government motion was a prerequisite for a substantial assistance departure.4  Every other circuit to announce a holding on the issue reached the same conclusion,5 and, as discussed  below, the circuits have continued to adhere to that position  since Koon was decided as well.  See infra note 12.


11
To be sure, the language of section 5K1.1 is susceptible to  more than one reading.  Although the section clearly provides  that if the government moves the court may depart, it does  not necessarily compel the inverse proposition--that if the  government does not move the court may not depart.  The  legal maxim expressiounius est exclusio alterius ("the mention of one thing implies the exclusion of another") is not  always correct.  Rather, as we recently noted, "[t]he maxim's  force in particular situations depends entirely on context,  whether or not the draftsmen's mention of one thing, like a  grant of authority, does really necessarily, or at least reasonably, imply the preclusion of alternatives."  Shook v. D.C.  Fin. Responsibility & Management Assistance Auth., 132  F.3d 775, 782 (D.C. Cir. 1998).


12
In the present context, however, it is clear that by authorizing departures with government motions, the Commission did  intend to preclude departures without motions.  This is clear  because the Commission borrowed the phrasing of section  5K1.1 from two other provisions whose preclusive meaning is  well-established, and which in turn borrowed from a tradition  of similar statutory provisos that have been interpreted in the  same way.


13
The Commission's authority to promulgate section 5K1.1  arises from Congress' instruction, in 28 U.S.C. § 994(n), that  the Commission "assure that the guidelines reflect the appropriateness of imposing a lower sentence than would otherwise  be imposed ... to take into account a defendant's substantial  assistance...."  Notably, Congress did not require the Commission to include an "upon motion of the government"  proviso for guideline departures based on substantial assistance.  See Melendez v. United States, 518 U.S. 120, 125 n.3  (1996).  The Commission had the discretionary authority to  do so, however, and did not have far to look for appropriate  models.6


14
Section 994(n) was enacted as part of the Anti-Drug Abuse  Act of 1986.  Adjacent to that section in the Act were two  other sentencing-departure provisions which, respectively, enacted 18 U.S.C. § 3553(e) and amended Rule 35(b) of the  Federal Rules of Criminal Procedure.7  Both included nearly  identical "upon motion of the government" clauses, and it is  thus apparent that in drafting section 5K1.1 the Commission  intended that section to be read in pari materia with 18  U.S.C. § 3553(e) and Rule 35(b).  See United States v. Abuhouran, 161 F.3d 206, 211 (3d Cir. 1998) ("The Commission  drew on the provision Congress itself enacted allowing courts  to sentence below statutory mandatory minima based on  substantial assistance if the government so moves.");  see also  United States v. Doe, 940 F.2d 199, 203 n.7 (7th Cir. 1991);United States v. Romolo, 937 F.2d 20, 23 (1st Cir. 1991);United States v. Doe, 934 F.2d 353, 359 (D.C. Cir. 1991).


15
Section 3553(e) governs the circumstances under which a  district court may select a sentence below a mandatory  minimum set by a congressional statute--as compared to  section 5K1.1, which applies to the selection of a sentence  below a Sentencing Commission guideline.  Section 3553(e)  states:


16
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. Such sentence shall be imposed in accordance with the guidelines and policy statements issued by the Sentencing Commission pursuant to section 994 of title 28,United States Code.


17
18 U.S.C. § 3553(e).  In Melendez v. United States, the  Supreme Court interpreted section 3553(e) to "require[ ] a  Government motion ... before the court may impose such a  sentence."  518 U.S. at 125-26 (1996).  The Supreme Court's  construction of language that is virtually identical to the  language of section 5K1.1, and is adjacent to its authorizing  provision, is powerful authority for the manner in which we  should read section 5K1.1 itself.8


18
Rule 35(b) of the Federal Rules of Criminal Procedure  governs the reduction of a defendant's sentence for substantial assistance provided after the initial sentence was imposed. After the 1986 amendment, the Rule read:


19
The court, on motion of the Government, may within one year after the imposition of a sentence, lower a sentence to reflect a defendant's subsequent, substantial assistance in the investigation or prosecution of another per-son who has committed an offense, in accordance with the guidelines and policy statements issued by the Sentencing Commission pursuant to section 994 of title 28,United States Code.


20
Fed. R. Crim. P. 35(b)(1987).9  As with section 3553(e), courts  have interpreted Rule 35(b) as requiring a motion before a judge may depart.  See, e.g., Doe, 940 F.2d at 202 (7th Cir.)  (holding that "a Government motion is required to trigger the  current Rule 35(b)");  United States v. Lewis, 896 F.2d 246,  248 (7th Cir. 1990) (same).


21
Moreover, sections 5K1.1 and 3553(e), and Rule 35(b), are  part of a congressional tradition of placing similar provisos in  statutes that implicate issues of prosecutorial discretion and  judgment.  For example, 18 U.S.C. § 6003(a) provides that,  "upon the request of the United States attorney for such  district," a district court shall issue an order compelling the  immunized testimony of a witness who refuses to testify. Likewise, the Ethics in Government Act provides that,  "[u]pon receipt of an application" from the Attorney General,  a special division of this court shall appoint an independent  counsel.  28 U.S.C. § 593(b)(1).  As with section 3553(e) and  Rule 35(b), these statutes have been read to mean that courts  may act only upon a request from the government.  See  United States v. Doe, 465 U.S. 605, 616-17 (1984);  In re  Kaminski, 960 F.2d 1062, 1063 (D.C. Cir. Spec. Div. 1992).In both cases, the courts adopted such readings in reliance  upon a tradition of legislative and judicial deference to prosecutorial discretion in matters involving the investigation and  prosecution of criminal cases.10


22
The process of evaluating the extent and significance of a  defendant's "assistance in the investigation or prosecution of  another person" falls well within this tradition.  See Wade v. United States, 504 U.S. 181, 185 (1992) (noting that prosecutor's authority to seek a section 5K1.1 departure is comparable to "a prosecutor's other decisions");  Abuhouran, 162 F.3d  at 215 (noting that without a motion requirement, "the court  would need to inquire into the nature, credibility, and significance of the defendant's assistance....  [I]n doing so a court  would be drawn into inappropriate scrutiny of prosecutorial  decision making.").  As we have said before, "the government  motion requirement is not a sinister impediment to a defendant's exercise of her substantive due process rights, but  rather a practical device that allows the government to give  appropriate weight to its investigative and enforcement activities...."  Doe, 934 F.2d at 358 (D.C. Cir.).  See Wade, 504  U.S. at 187 ("The Government's decision not to move may  have been based not on a failure to acknowledge or appreciate  [the defendant's] help, but simply on its rational assessment  of the cost and benefit that would flow from moving.") (citing  Doe, 934 F.2d at 358 (D.C. Cir.)).11 The point is not that  courts are incapable of making such evaluations.  Nor is it  that letting them do so will always result in debilitating  intrusions into core prosecutorial functions.  It is simply that  the "upon motion of the government" proviso falls squarely  within a tradition of deferring to prosecutorial initiative in  order to avert such a possibility, and that this tradition  formed the backdrop for the Commission's drafting of section  5K1.1.


23
Although the Supreme Court has interpreted the nearly  identical language of section 3553(e) to require a government  motion before a court may depart from a statutory minimum  sentence, the Court has not yet ruled directly with respect to  a departure from the Guidelines under section 5K1.1.  In two  cases, however, it has strongly suggested that a government  motion is required under section 5K1.1 as well.


24
In Wade v. United States, 504 U.S. 181 (1992), the defendant challenged the government's refusal to file a motion  seeking a substantial assistance departure under both sections 5K1.1 and 3553(e).  The Court held that the government's refusal to file such a motion is subject to judicial  review, but only upon a substantial threshold showing that  the prosecutor had an unconstitutional motive for refusing to  file.  Because the defendant conceded that the court could not  depart without a motion, and merely challenged the government's refusal to file one, Wade does not decide the precise  issue before us.


25
But Wade's dicta in that direction could hardly have been  stronger.  For example, the Court described the "upon motion" clause of both section 3553(e) and section 5K1.1 as "the  condition limiting the court's authority":


26
Wade concedes, as a matter of statutory interpretation, that § 3553(e) imposes the condition of a Government motion upon the district court's authority to depart, and he does not argue otherwise with respect to § 5K1.1....Wade's position is consistent with the view, which we think is clearly correct, that in both § 3553(e) ands 5K1.1 the condition limiting the court's authority gives the Government a power, not a duty, to file amotion when a defendant has substantially assisted.


27
504 U.S. at 185 (internal citations omitted) (emphasis added).In like vein, the Court said, "although a showing of assistance  is a necessary condition for relief, it is not a sufficient one."Id. at 187.  Indeed, there would have been little reason for  the Court to decide whether the government's refusal to file a  motion was subject to judicial review if the Court had believed such a motion was unnecessary to authorize a departure in the first place.


28
As noted above, the Court held in Melendez v. United  States, 518 U.S. at 125-26, that section 3553(e) requires a  government motion before a court may depart below a statutory minimum.  The issue in Melendez was whether a motion  filed pursuant to section 5K1.1, requesting a departure below  the Sentencing Guidelines, is sufficient to permit the court to depart below the statutory minimum as well.  The court held  that it is not, and that a motion requesting a departure below  the statutory minimum also is required.  Again, the precise  question here was not at issue there, since the government  had filed a section 5K1.1 motion on Melendez's behalf.  But  the Court did repeat Wade's dictum, which Wade had applied  to both sections 3553(e) and 5K1.1, that "substantial assistance 'is a necessary condition for [a departure, but] it is not a  sufficient one.' "  518 U.S. at 126 n.4 (quoting Wade, 504 U.S.  at 187) (alteration in original).  And although Justices O'Connor and Breyer dissented in part, they did not dispute that  dictum.  To the contrary, they were even more explicit than  the majority, stating flatly that section 5K1.1 "permit[s]  judges to depart downward for 'substantial assistance' only if  the Government makes a 'motion'...."  Id. at 133 (Breyer,  J., joined by O'Connor, J., concurring in part and dissenting  in part) (emphasis added).


29
Because the Sentencing Commission has not issued an  interpretation of the meaning of section 5K1.1, there is no  administrative construction to which we may defer.  Cf. Stinson v. United States, 508 U.S. 36, 44-46 (1993).  Our task,  then, is to decide upon the best reading of section 5K1.1's  language.  That task is not difficult, given the Supreme  Court's interpretation of the virtually identical language of  section 3553(e), the drafting history suggesting a Commission  intention that section 5K1.1 be read in pari materia with that  statute (and with Rule 35(b)), the accepted interpretation of  similar language in other statutes, and strong Supreme Court  dicta regarding the meaning of section 5K1.1 itself.  These  considerations compel us to conclude that a court may depart  for substantial assistance only upon the filing of an appropriate motion by the government.

III

30
In arguing that a district court may depart even in the  absence of a government motion, the defendant contends that  Koon wrought a transformation in the law so fundamental as  to overrule our earlier decision in Ortez and, implicitly, to render inappropriate the kind of interpretative method employed above.  No other circuit has adopted this view.  To  the contrary, in numerous post-Koon cases, the circuits have  continued to rule that departures require government motions.12  The Third Circuit has specifically addressed and  rejected claims that Koon changed the substantial assistance  landscape.  See Abuhouran, 161 F.3d at 207-09.  And while  the Fifth Circuit initially adopted a position like that of  defendant, see United States v. Solis, 161 F.3d 281 (5th Cir.  1998), after we vacated our panel's decision it vacated its own  as well, and held that Koon did not alter the requirement of a  government motion.  United States v. Solis, 169 F.3d 224 (5th  Cir. 1999).


31
In this Part, we first set forth the Supreme Court's analysis  in Koon, and then discuss the defendant's contentions and our  own conclusions regarding the relevance of Koon to section  5K1.1.


32
* In Koon, the Supreme Court considered the standard of  review applicable to a district court's decision to depart from a guideline sentencing range, and concluded that the appropriate standard was abuse of discretion.  518 U.S. at 98-99.In the course of reaching that conclusion, the Court adopted a  four-part taxonomy of grounds for departure originally suggested by then-Chief Judge Breyer in United States v. Rivera, 994 F.2d 942 (1st Cir. 1993).  According to this taxonomy, departure factors are classified as either:  (1) forbidden,  (2) encouraged, (3) discouraged, or (4) unmentioned.  Because  this taxonomy is at the heart of defendant's analysis of  section 5K1.1, we consider it in some detail.


33
Koon began by noting that the authority of a district court  to depart from the Guidelines derives from 18 U.S.C.  § 3553(b), which permits departure 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...."  To determine "whether a circumstance was adequately taken into consideration by the Commission," the  Court said, "Congress instructed courts to 'consider only the  sentencing guidelines, policy statements, and official commentary of the Sentencing Commission.' " 518 U.S. at 92-93  (quoting § 3553(b)).  "Turning [its] attention, as instructed,  to the Guidelines Manual," the Court noted the Commission's  statement that the Guidelines were formulated "to apply to a  heartland of typical cases," and hence that "factors that may  make a case atypical provide potential bases for departure."Id. at 93.


34
Koon further noted, however, that "[s]entencing courts are  not left adrift" as to which factors may be considered in  making departures, and how such consideration should proceed.  First, certain factors are "forbidden," and can never be  used as bases for departure.  Id. at 94-95.  Second, certain  factors are "encouraged."  These are factors the Commission  was unable to take into account fully in formulating the  Guidelines.  If a factor is encouraged, "the court is authorized  to depart if the applicable Guideline does not already take it  into account."  Id.  If the applicable guideline already does  take the encouraged factor into account, a court may still  depart in reliance upon it, "but only if 'it is present to a degree substantially in excess of that which ordinarily is  involved in the offense.' "  Id. at 95 (citing U.S.S.G. § 5K2.0,  p.s.).  Third, certain factors are "discouraged."  Such factors  are those " 'not ordinarily relevant to determination of whether a sentence should be outside the applicable guideline  range.' "  Id. (quoting U.S.S.G. Ch. 5., Pt. H, intro. comment.).  They may be used for departure "only if the factor is  present to an exceptional degree."  Id. at 96.


35
Finally, under the Koon taxonomy, if a factor is neither  forbidden, encouraged nor discouraged, it is "unmentioned."An unmentioned factor may be used as the basis for departure if "it is sufficient to take the case out of the [applicable]  Guideline's heartland"--i.e., the range of typical cases to  which the guideline was meant to apply.  Id.  Koon cautioned, however, that "the Commission's expectation [was]  that departures based on grounds not mentioned in the  Guidelines will be 'highly infrequent.' "  Id. (quoting U.S.S.G.  Ch. 1, Pt. A).

B

36
In applying the Koon taxonomy to the instant case, defendant begins with the proposition that the factor at issue  here--which he describes as "substantial assistance without a  government motion"--is not a forbidden factor.  It is not  forbidden, he contends, because nothing in the Sentencing  Guidelines expressly prohibits departures in the absence of  government motions.  Although he regards "substantial assistance with a government motion" as an encouraged factor, he  does not contend that assistance without a motion is also  encouraged.  He does, however, deny that it is discouraged,  since, again, "the Guidelines nowhere expressly discourage  departures based on 'substantial assistance without a government motion.' "  Def. Supp. Br. at 10 (internal quotation  omitted).


37
This leaves only the "unmentioned" category, which is  where defendant places substantial assistance without a motion.  Koon, he contends, requires that the Guidelines be  interpreted precisely.  If a factor has not been expressly  mentioned, then it has not been adequately taken into account  by the Commission.  Because substantial assistance without a  motion has not been expressly mentioned, defendant argues  that like any other unmentioned factor it can be the basis of a  departure where circumstances take the case out of the  relevant guideline heartland.  Thus, he concludes, Koon effectively overrules Ortez.


38
We approach with some skepticism the contention that  Koon effectively overruled Ortez, and with it scores of cases  in this and other circuits.  Section 5K1.1 was neither at issue,  nor mentioned, in the Koon opinion.  The Court decided  Melendez, which repeated the dictum of Wade, just four days  after deciding Koon and without any suggestion that a fundamental transformation in the meaning of section 5K1.1 had  just occurred.  Indeed, although Melendez was in large part  about the meaning of section 3553(e), it was also about the  meaning of section 5K1.1, yet the Court resolved the case  without once mentioning Koon.  See 518 U.S. at 130-31.


39
Our general skepticism aside, we reject the defendant's  proposed application of Koon to section 5K1.1 for two specific  reasons.  First, he misidentifies the departure factor at issue  in this case, and hence misplaces the factor within the Koon  taxonomy.  Second, he incorrectly assumes that a "clear  statement" canon governs the reading of the entire Guidelines  Manual, and particularly of section 5K1.1.


40
The relevant departure factor here is neither "substantial  assistance to authorities without a government motion" nor  "substantial assistance to authorities with a government motion."  Rather, the appropriate characterization of the factor  is the one the Commission itself used in titling section 5K1.1:"Substantial Assistance to Authorities," simpliciter.  The  government motion proviso is a procedural limitation upon  the applicability of the factor, but it is not a defining aspect of  the factor itself.13


41
As Koon explained, a departure factor is an "aggravating  or mitigating circumstance of a kind, or to a degree, not  adequately taken into consideration by the Commission."  518  U.S. at 106 (quoting 18 U.S.C. § 3553(b)).  In the case of a  downward departure, the factor must, of course, be a "mitigating" one.  But if, as defendant concedes, "substantial  assistance with a government motion" is a factor the Commission did adequately take into consideration, the only thing  that distinguishes the factor defendant contends is at issue  here is the absence of a government motion.  And we do not  see why the unwillingness of the government to file a motion  should itself be a basis for leniency.  Cf. Abuhouran, 161 F.3d  at 213 ("[T]he existence vel non of a government motion  concerning assistance ... is not a sentencing factor.  A  sentencing factor is a relevant offense or offender characteristic.").


42
Once the factor actually at issue here is identified, its place  in the Koon taxonomy becomes clear.  Substantial assistance  to authorities cannot be an unmentioned factor since it is  specifically mentioned in section 5K1.1.  Nor is it in any way  telling, as the defendant contended at oral argument, that this  factor was not included in the list of forbidden factors catalogued in Koon.  See 518 U.S. at 93 (listing, inter alia, race,  sex, and economic hardship as forbidden factors).14  Koon did  not list substantial assistance as a forbidden factor because it  is not one;  section 5K1.1 specifically contemplates that it may  be used as a ground for departure.  Rather, substantial  assistance is an encouraged factor and, like the other encouraged factors, the Guidelines provide that a court "may" depart when it is present.  Compare U.S.S.G. § 5K1.1, p.s.,  with § 5K2.10, p.s. (court "may" depart based on victim  conduct), and § 5K2.13, p.s. (court "may" depart based on  defendant's diminished mental capacity).  There is, therefore,  no warrant for treating substantial assistance as an unmentioned factor within the Koon taxonomy.


43
This is not to deny that substantial assistance remains  unlike the other departure factors discussed in Koon.  It is  the only one that comes with a procedural limitation--the  motion requirement discussed above.15  But it is hardly surprising that the Guidelines should treat this factor differently  from the others.  It is the only factor Congress permitted as  a basis for departures below a statutory minimum, see 18  U.S.C. § 3553(e);  the only factor Congress specifically directed the Commission to address for guideline departures, see 28  U.S.C. § 994(n);  and the only factor to which the Commission  devoted a separate subpart in the Guidelines Manual, compare U.S.S.G. Ch. 5, Pt. K(1) ("Substantial Assistance to  Authorities"), with id. Pt. K(2) ("Other Grounds for Departure").  And since substantial assistance was not at issue in  Koon, it is not surprising that the Court did not address its  unique place in the taxonomy.


44
Our second disagreement with defendant is with his underlying assumption that, post-Koon, a "clear statement" canon  governs every aspect of the Guidelines Manual.  He urges us  to permit departures without motions because the Guidelines  "nowhere expressly address 'substantial assistance without a  government motion.' "  Def. Supp. Br. at 10 (citation omitted)  (emphasis added).  The emphasized word, however, is not to  be found in Koon itself, and certainly not in Melendez which  was decided just four days later.  See Melendez, 518 U.S. at  129 ("Although the various relevant guidelines provisions  could certainly be clearer, we also believe that the government's interpretation of the current provisions is the better one.").  Indeed, Koon itself said that "an impermissible factor  need not be invoked by name to be rejected."  Koon, 518 U.S.  at 110.


45
It is true that in Koon, the Court held that even though the  Guidelines (in § 5H1.10) make socioeconomic status a forbidden factor, a defendant's job loss remains an unmentioned,  permissible one.  "[S]ocioeconomic status and job loss," the  Court said, "are not the semantic or practical equivalents of  each other."  518 U.S. at 110.  But whether or not "semantic  equivalence" is the test for comparing a listed departure  factor against an asserted one, Koon did not make it the test  for determining whether a listed departure factor is limited  by a procedural condition--let alone a universal rule for  reading the Guidelines Manual as a whole.


46
Moreover, the reason the Supreme Court looked to semantic or practical equivalence in Koon was that it was a sensible  way to determine whether the factors at issue there were  sufficiently similar to indicate that the Commission's consideration of one meant it had also considered the other.  In Koon,  it was not hard to imagine that the Commission could have  considered the relevance of a defendant's pre-offense socioeconomic status (which would go to the question of culpability), without at the same time considering the relevance of  post-conviction job loss (which would go to the quite different  question of collateral punishment).  As the Court said, "the  link is not so close."  518 U.S. at 510.  But here the link is  quite close.  "With a motion" and "without a motion" are not  equivalents precisely because they are opposites.  And we  find it difficult to believe that the Commission could have so  compartmentalized its thinking as to address directly the  relevance of substantial assistance with a government motion,  yet fail to take account of the opposite possibility that the  government might not file a motion.  To the contrary, we  concluded in Part II that the Commission did affirmatively  decide--consciously adopting the model of section 3553(e)-that substantial assistance without a motion does not qualify  for a departure.16 And we find nothing in Koon to suggest that the usual interpretive methods employed in that Part are  inappropriate for reading section 5K1.1.17

IV

47
In this Part, we consider defendant's additional argument  that even if a court lacks authority to depart without a motion  under section 5K1.1, it has an independent source of departure authority under Guidelines § 5K2.0.  That section begins  by stating:


48
Under 18 U.S.C. § 3553(b), the sentencing court may impose a sentence outside the range established by the applicable guidelines, 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 guide-lines....'


49
Subsequent sentences note that the Commission has identified certain factors that may warrant departure from the  Guidelines, and discuss circumstances under which departures based on those factors, as well as additional factors,  may be appropriate.  Subsequent guideline sections identify  eighteen such specific factors.  U.S.S.G. §§ 5K2.1-5K2.18.


50
As the now-familiar language quoted above suggests, defendant's argument from section 5K2.0 is essentially the same argument we considered in Part III, dressed in not very  different clothes.  Section 3553(b), quoted in the first line of  section 5K2.0, is the statutory source of authority for all  departures.  And the subsequent sentences of section 5K2.0  form part of the basis for the departure taxonomy the Court  developed in Koon.  But Koon did not suggest that section  5K2.0 was a source of authority for substantial assistance  departures independent of section 5K1.1.  Accordingly, defendant's specific reference to this section adds little to the  argument rejected in Part III.  Indeed, as defense counsel  conceded at oral argument, if we read section 5K1.1 as saying  that a substantial assistance departure is permissible only  upon motion of the government, then we cannot read section  5K2.0 as countermanding that injunction.  And as we have  already read section 5K1.1 that way, and as we find nothing  in section 5K2.0 to cast doubt on that reading, we conclude  that section 5K2.0 does not provide an independent source of  authority for substantial assistance departures.


51
This conclusion is strongly supported by the structure of  the Guidelines Manual itself.  Chapter 5, Part K of the  Manual is entitled "Departures."  Subpart 1 of Part K, which  includes section 5K1.1, is entitled "Substantial Assistance to  Authorities."  Subpart 2, which begins with section 5K2.0 and  follows with the eighteen specific departure-factor sections, is  entitled "Other Grounds for Departure."18  This structure  confirms the conclusion that it is section 5K1.1, and not  section 5K2.0, that contains the Commission's guidance regarding departures based on substantial assistance.  See  Solis, 169 F.3d at 227 (holding that "a district court has no  more authority to depart for substantial assistance under  § 5K2.0 than it has under § 5K1.1");  Abuhouran, 161 F.3d at  213 (same).19


52
Defendant briefly asserted a further, closely-related argument in his initial briefs, although he appeared to abandon it  in his response to the petition for rehearing.20  According to  this argument, even if section 5K1.1 bars substantial assistance departures in the absence of a motion, that section-like other guideline sections--has a "heartland" and section  5K2.0 permits a departure from it in an atypical case.  That  is, even if "ordinary" substantial assistance is not enough for  a departure without a motion, extraordinary assistance could  be.21


53
We rejected this argument prior to Koon,22 and nothing in  Koon suggests we should revive it now.  Koon itself discussed departures from offense guidelines and adjustments, not departures from guidelines that themselves regulate departures. That is the general context in which the Guidelines Manual  discusses departures as well,23 and we have some doubt as to  whether a "departure from a departure guideline" was contemplated by the Commission or even constitutes a coherent  sentencing concept24


54
We have no doubt, however, that even if otherwise appropriate, the departure-from-a-departure concept cannot apply  to section 5K1.1.  Nothing about section 5K1.1 suggests that  its procedural bar is limited to "substantial but not extraordinary" assistance25--just as there is no such limitation upon  the procedural bar of 18 U.S.C. § 3553(e).  "Substantial"  assistance is the minimum necessary to qualify for a section  5K1.1 departure;  it does not serve as both a floor and a  ceiling.  Since we have concluded that the Commission intended section 5K1.1 to bar a departure for substantial  assistance in the absence of a motion, and that section 5K2.0  does not serve as an alternative source of authority for  substantial assistance departures, there is no room for the  loophole defendant seeks.  "To hold otherwise 'would undermine, if not eviscerate' the government motion requirement of  section 5K1.1."  United States v. White, 71 F.3d 920, 928  (D.C. Cir. 1995) (quoting United States v. Watson, 57 F.3d  1093, 1096 (D.C. Cir. 1995)).

V

55
We conclude that in the absence of a government motion, a  district court lacks authority under the Guidelines to depart  from the applicable sentencing range on the basis of a defendant's substantial assistance.  This is not to say that a court  may never sentence below the Guidelines when a prosecutor  refuses to file an authorizing motion.  As the Supreme Court  stated in Wade, district courts have the authority to grant  relief "if they find that the refusal was based on an unconstitutional motive," or "if the prosecutor's refusal to move was  not rationally related to any legitimate Government end."Wade, 504 U.S. at 185-86.  A court may also grant relief if  the defendant's cooperation was provided pursuant to a plea  agreement, and the government's refusal to file is attributable  to bad faith or other breach of the agreement.  See United  States v. Jones, 58 F.3d 688, 692 (D.C. Cir. 1995);  United  States v. Sparks, 20 F.3d 476, 479 (D.C. Cir. 1994);  Doe, 934  F.2d at 361 (D.C. Cir.);  see also Wade, 504 U.S. at 185 (citing  Santobello v. New York, 404 U.S. 257, 262-63 (1971)).  But  the authority to grant relief in such cases derives not from  the Sentencing Guidelines themselves, but from law exogenous to the Guidelines--namely, from principles of contract  and the Constitution.26


56
The defendant has not contended that any of these principles apply to his case.  Nor has the government filed a  motion on his behalf.  Accordingly, a departure is unavailable  and the judgment of the district court is affirmed.



Notes:


1
 Unless otherwise indicated, all references are to the 1997 edition  of the Sentencing Guidelines Manual, which is the edition governing  defendant's case.  See U.S.S.G. § 1B1.11, p.s.  Because this case  remains under seal, we recite only those facts necessary to frame  the legal issues.


2
 See 21 U.S.C. § 846.  The district court initially sentenced  defendant to 60 months imprisonment, the statutory minimum  sentence for his offense (conspiracy to distribute and to possess  with intent to distribute 500 grams or more of cocaine).  See 21  U.S.C. § 841(b)(1)(B)(ii);  21 U.S.C. § 846.  That sentence was  vacated and remanded by a panel of this court on the ground that  defendant was eligible for treatment under the "safety valve"  provision of the Sentencing Guidelines, U.S.S.G. § 5C1.2, which  Congress added in 1994, see 18 U.S.C. § 3553(f).  In re Sealed Case  (Sentencing Guidelines' "Safety Valve"), 105 F.3d 1460 (D.C. Cir. 1997).  The safety valve provision requires district courts to disregard statutory minimum sentences, and instead to sentence pursuant to the Guidelines, when a defendant satisfies five indicators of  reduced culpability.  Id.  Following remand, the district court  applied an additional reduction applicable to safety valve cases, see  U.S.S.G. § 2D1.1(b)(6), recalculated defendant's guideline sentencing range, and sentenced him to the 40 months noted in the text.


3
 We left (and leave) untouched the panel's rejection of defendant's alternative argument that section 5K1.1 is invalid because the  Sentencing Commission issued it as a policy statement rather than  a formal guideline.  See 149 F.3d at 1200-01.  Defendant's suggestion for rehearing on that issue was denied.


4
 See Ortez, 902 F.2d at 64;  see also United States v. Dyce, 91  F.3d 1462, 1470 (D.C. Cir. 1996) (holding a substantial assistance  departure available "only where the Government certifies to the  district court that the help received has been of sufficient value to  warrant the departure");  United States v. White, 71 F.3d 920, 927  (D.C. Cir. 1995) ("[I]n the absence of a government motion the  district court has no authority to depart under section 5K1.1."); United States v. Jones, 58 F.3d 688, 691 (D.C. Cir. 1995) (holding  that "a motion of the Government is a prerequisite to the exercise  of judicial discretion to depart below the Guideline range");  United  States v. Watson, 57 F.3d 1093, 1096 (D.C. Cir. 1995) (same);United States v. Doe, 934 F.2d 353, 355 (D.C. Cir. 1991) (same).


5
 See United States v. Reina, 905 F.2d 638, 641 (2d Cir. 1990);United States v. Higgins, 967 F.2d 841, 845 (3d Cir. 1992);  United  States v. Wade, 936 F.2d 169, 171 (4th Cir. 1991);  United States v.  Levy, 904 F.2d 1026, 1035 (6th Cir. 1990);  United States v. Goroza,  941 F.2d 905, 908-09 (9th Cir. 1991);  United States v. Lee, 989 F.2d  377, 379 (10th Cir. 1993);  United States v. Alamin, 895 F.2d 1335,  1337 (11th Cir. 1990).  Although three circuits initially speculated in  dicta that there might be an "egregious" case or "extraordinary"  assistance exception to the motion requirement, see United States v.  Romolo, 937 F.2d 20, 24-25 (1st Cir. 1991);  United States v. White,  869 F.2d 822, 829 (5th Cir. 1989);  United States v. Justice, 877 F.2d  664, 668-69 (8th Cir. 1989), those circuits now appear to have  narrowed that exception to cases involving unconstitutional motives  or irrational or bad faith refusals to file by the government.  See  United States v. Amparo, 961 F.2d 288, 293-94 (1st Cir. 1992);United States v. Solis, 169 F.3d 224, 227 (5th Cir. 1999);  United  States v. Kelly, 18 F.3d 612, 617-18 (8th Cir. 1994).  We reach a  similar result in Parts IV and V infra.


6
 Defendant argues that the language of 28 U.S.C. § 994(n),  which requires the Commission to "assure that the guidelines  reflect the general appropriateness of imposing a lower sentence"  for defendants who provide substantial assistance to the government, compels the conclusion that section 5K1.1 cannot alone constitute adequate consideration of substantial assistance.  Def. Supp.  Br. at 11.  But Congress did not direct the Commission to assure  departures whenever a defendant provides substantial assistance. Rather, section 994(n) left it to the Commission to determine the  "general appropriateness" of lesser sentences, and it was within the  Commission's authority to conclude that lowering sentences for  substantial assistance would only be appropriate upon government  motion.  As we previously said in rejecting the claim that section  5K1.1 conflicts with section 994(n), "[t]he fact that Congress itself  drafted a substantial assistance provision containing a government  motion requirement [18 U.S.C. § 3553(e)]--located, as it so happens, immediately prior to section 994(n) in the original legislation--precludes any doubts as to the reasonableness of the Commission's inclusion of such a requirement in section 5K1.1."  Doe, 934  F.2d at 359 (D.C. Cir.).


7
 See Anti-Drug Abuse Act of 1986, Pub. L. No. 99-570, tit. I,  subtit. A, § 1008, 100 Stat. 3207, 3207-7 (1986) (codified at 28 U.S.C.  § 994(n));  id. § 1007(a), 100 Stat. at 3207-7 (codified at 18 U.S.C.  § 3553(e));  id. § 1009(a), 100 Stat. at 3207-8 (amending Fed. R.  Crim. P. 35(b)).


8
 Defendant attaches some significance to the fact that section  3553(e) provides that upon motion a court shall have "authority" to  impose a sentence below the statutory minimum, while section  5K1.1 provides that upon motion a court "may" depart from the  Guidelines.  This truly is a distinction without a difference.  Compare Black's Law Dictionary 132 (6th ed. 1990) (defining "authority" as "permission"), with id. at 979 (defining "may" as expressing  "permission").


9
 The provision permitting a reduction for substantial assistance,  including the phrase "on motion of the government," was added to  Rule 35 by the Sentencing Reform Act of 1984, Pub. L. No. 98-473,  tit. II, § 215(b), 98 Stat. 1837, 2016 (1984).  The 1986 amendment  brought the Rule to the form quoted in text.  Following amendments made in 1998, Rule 35(b) now reads in pertinent part:  "If the  Government so moves within one year after the sentence is imposed, the court may reduce a sentence to reflect a defendant's  substantial assistance...."  Fed. R. Crim. P. 35(b) (1999).


10
 See Doe, 465 U.S. at 616 ("The decision to seek use immunity  necessarily involves a balancing of the Government's interests in  obtaining information against the risk that immunity will frustrate  the Government's attempts to prosecute the subject of the investigation.");  Kaminski, 960 F.2d at 1064 (relying on Supreme Court  precedent that "the executive branch has exclusive authority and  absolute discretion to decide whether to prosecute a case") (quoting  United States v. Nixon, 418 U.S. 683, 693 (1974)).


11
 See also Doe, 934 F.2d at 358 (D.C. Cir.) ("[T]he government  motion provision of section 5K1.1 is predicated on the reasonable  assumption that the government is best positioned to supply the  court with an accurate report of the extent and effectiveness of the  defendant's assistance.") (internal quotation omitted).


12
 See, e.g., Abuhouran, 161 F.3d at 211 (3d Cir. 1998);  United  States v. Schaefer, 120 F.3d 505, 508 (4th Cir. 1997);  Solis, 169 F.3d  at 226 (5th Cir. 1999);  United States v. Benjamin, 138 F.3d 1069,  1073 (6th Cir. 1998);  United States v. Carter, 122 F.3d 469, 476 (7th  Cir. 1997);  United States v. Barrett, 173 F.3d 682, 684 (8th Cir.  1999);  United States v. Mikaelian, 168 F.3d 380, 385 (9th Cir.  1999);  United States v. Cerrato-Reyes, 176 F.3d 1253 (10th Cir.  1999), available at 1263-64;  United States v. Gonsalves,  121 F.3d 1416, 1419 (11th Cir. 1997).  In United States v. Santoyo,  146 F.3d 519 (7th Cir. 1998), a panel of the Seventh Circuit  considered a defendant's claim "that his assistance was so substantial that it justified a departure under § 5K2.0," even in the absence  of a government motion.  The court did not reject the legal theory  behind the claim, but noted that it would require proof of assistance  so unusual "as to take it out of the heartland of § 5K1.1 cases," and  concluded that defendant's assistance was not of that caliber.  Santoyo, 146 F.3d at 525-26.  We address this legal theory in Part IV  below.


13
 See Abuhouran, 161 F.3d at 213 ("The requirement of a  government motion under § 5K1.1 is a condition limiting a court's  authority to grant a defendant a substantial assistance departure.... and simply cannot be described as a 'sentencing factor.' ..  Rather, the factor ... is [defendant's] alleged substantial  assistance to the government.") (internal citations omitted).


14
 Indeed, more telling is that Koon's list of forbidden factors  omitted the one factor that is directly related to assistance to  authorities:  refusal to assist authorities.  See U.S.S.G. § 5K1.2, p.s.  ("A defendant's refusal to assist authorities in the investigation of  other persons may not be considered as an aggravating sentencing  factor.").  The Court's omission of this factor further supports the  conclusion that the analysis in Koon has little applicability to  departures for substantial assistance.


15
 See Schaefer, 120 F.3d at 508 ("[A] departure under § 5K1.1,  p.s. is different from the typical basis for departure....  Unlike all  other grounds for departure, in order for a district court to base a  departure upon a defendant's substantial assistance ... the Government must first move the district court to do so.").


16
 For these reasons, even if the relevant factor here were  "substantial assistance without a motion," we could not regard it as  unmentioned, but instead would have to regard it as forbidden.


17
 Koon's own subsequent treatment of the job-loss factor further  supports reliance on such methods.  Although the Court concluded  that consideration of job loss was not generally prohibited, it held  such consideration was barred when the offense at issue was one  like 18 U.S.C. § 242 (deprivation of rights under color of law).  "It  is to be expected that a government official would be subject to" job  loss for such an offense, the Court said, and "so we conclude these  consequences were adequately considered by the Commission in  formulating" the offense guideline applicable to section 242.  Koon,  518 U.S. at 110-11.  The Court reached this conclusion, however,  despite the absence of any reference to job loss in the applicable  offense guideline, U.S.S.G. § 2H1.4 (1992), and without any other  express evidence indicating the Commission actually had recognized  what the Court thought was logically "to be expected."


18
 U.S.S.G. Ch. 5, Pt. K, Subpt. 2 (emphasis added).  The title was  the result of a deliberate choice on the part of the Commission.Subpart 2 was originally entitled "General Provisions," and was  changed to "Other Grounds for Departure" as part of "editorial and  clarifying" changes made in 1990.  See U.S.S.G. App. C., amend.  358.


19
 This conclusion is also supported by considering the implications of accepting defendant's argument.  On that argument, it  would be appropriate for a court to depart as long as substantial  assistance were not adequately taken into account in formulating  the "relevant guideline applicable to the particular offense" committed by the defendant.  Def. Resp. to Pet. for Reh'g at 7.  But as the  Commission's promulgation of section 5K1.1 suggests, and as defense counsel conceded at oral argument, substantial assistance was  not taken into account in drafting any of the offense guidelines.Hence, the logical consequence of defendant's theory is that a  defendant's substantial assistance would take a case out of the  heartland of every offense.  This would both render the motion  provision of section 5K1.1 essentially irrelevant, and contravene  "the Commission's expectation that departures based on grounds  not mentioned in the Guidelines will be 'highly infrequent.' "  Koon,  518 U.S. at 96 (quoting U.S.S.G. Ch. 1, Pt. A).


20
 Compare Def. Br. at 37, with Def. Resp. to Pet. for Reh'g at 7.Defendant may have decided not to press this argument because he  never contended that he provided an extraordinary level of assistance to the government.


21
 See supra notes 5, 12 (citing cases discussing this theory).


22
 See White, 71 F.3d at 928 ("[The circumstances surrounding a  defendant's cooperation with the government can never be of a kind  or degree not adequately contemplated by the Commission.  'Cooperation with the prosecutors simply cannot be sufficiently extraordinary to warrant a departure under § 5K2.0 absent a government  motion under § 5K1.1.' ") (quoting United States v. Aslakson, 982  F.2d 283, 284 (8th Cir. 1992)).


23
 See, e.g., U.S.S.G. § 5K2.0, p.s. ("Where, for example, the  applicable offense guideline and adjustments do take into consideration a factor listed in this subpart, departure from the applicable  guideline range is warranted only if the factor is present to a  degree substantially in excess of that which ordinarily is involved in  the offense.") (emphasis added).


24
 Of course, a factor denominated as "discouraged" under the  Koon taxonomy may be used for departure "if the factor is present  to an exceptional degree."  Koon, 518 U.S. at 96.  But to do so is  not to "depart" from the relevant discouraged factor guideline, since  such guidelines state that specified factors are not "ordinarily"  relevant for departure--implying that under unusual circumstances  they may be.  See, e.g., U.S.S.G. § 5H1.6, p.s. (family ties "not  ordinarily relevant" for departure).  The same is true for encouraged factors already taken into account by applicable offense guidelines.  See, e.g., U.S.S.G. § 5K2.7, p.s. (departure for disruption of  governmental function "ordinarily would not be justified" when  offense is bribery "unless the circumstances are unusual").  See  generally Koon, 518 U.S. at 94-96.  There is no such language in  § 5K1.1.


25
 See United States v. Agu, 949 F.2d 63, 65-66 (2d Cir. 1991)  ("The 'to a degree' component of section 3553(b) offers no escape  from procedural limitations like the 'motion of the government'  requirement of section 5K1.1.  It is one thing to permit a departure  where the commission has assigned a value to some circumstance  and in a particular case that circumstance is present to such a  degree that the sentencing judge may fairly conclude that adequate consideration by the Commission was lacking.  It is quite another  thing to permit departures from procedural requirements....").


26
 Our analysis, although not our result, differs in this regard  from that of the Third Circuit.  In Abuhouran, that Circuit concluded that a prosecutor's refusal to file a substantial assistance motion,  because of unconstitutional motive or bad faith with respect to a  plea agreement, would take the case out of the heartland of § 5K1.1  and give a judge authority to depart under Guidelines § 5K2.0.  See  161 F.3d at 214.



57
Edwards, Chief Judge, and Tatel, Circuit Judge, concurring:


58
We originally viewed this case as turning on the difference  between two distinct departure factors--substantial assistance with a government motion versus substantial assistance  without a government motion--but we are now persuaded  otherwise.  Having benefitted from en banc review, we are  convinced by the Guidelines' language, structure, and drafting  history that the relevant departure factor is properly characterized simply as substantial assistance, that the government  motion requirement constitutes a procedural limitation on its  availability, and that the Sentencing Commission "did intend  to preclude departures without [government] motions."  Maj.  Op. at 6.


59
We continue to believe, however, that courts must exercise  particular caution before concluding that the Commission  actually has chosen to limit district judges' traditional sentencing discretion, and that the expressio unius maxim, by  itself, is "too thin a reed" to have much force in this context. Cf. Mobile Communications Corp. of Am. v. FCC, 77 F.3d  1399, 1405 (D.C. Cir. 1996) (internal quotation and citation  omitted).  To be sure, exercising caution is not the same as  applying a full-fledged "plain statement" canon, but in close  cases we should steer away from inferring that the Commission has limited traditional judicial sentencing discretion.  As  the Commission itself has recognized, the Guidelines were  never intended to remain static;  to the contrary, the Commission's ability continually to monitor an evolving federal sentencing common law is central to its goal of refining and  improving the Guidelines over time.  See U.S.S.G. Ch.1, Pt.A,  intro. cmt. 4(b).  Judge Garland's thorough opinion reflects  the scrutiny appropriate in these cases.


60
* * *


61
We do not understand why Judge Henderson feels the need  to accuse Senior Judge Buckley and us of "disregard[ing] our  established [Irons footnote] procedure and, far worse, fail[ing] to honor the bedrock principle of stare decisis."Henderson Op. at 1.  She is wrong on both counts.


62
To begin with, stare decisis simply has no applicability if a  prior precedent has been altered by an intervening decision  from a higher court.  No case Judge Henderson cites casts  doubt on this unassailable proposition.  Acting in good faith,  the three-judge panel in this case unanimously concluded that  Koon v. United States, 518 U.S. 81 (1996), effectively overruled this court's prior decision in United States v. Ortez, 902  F.2d 61 (D.C. Cir. 1990), by altering the analytical framework  governing the availability of sentencing departures.  The fact  that we ultimately turned out to be wrong in our application  of Koon does not mean that we "failed to honor" stare decisis.


63
Judge Henderson also misrepresents this court's Irons  footnote policy.  Although the policy certainly permits a  panel to use an Irons footnote to secure full-court endorsement before ruling that an intervening Supreme Court decision has overruled a circuit precedent, the policy does not  require it.  In fact, in a passage that Judge Henderson fails  to cite, the policy clearly states that:


64
Nothing in the foregoing statement of the court's policy is intended ... to limit a panel's discretion to decide a case without resort to en banc endorsement.  In other words, a panel may always....  determine ...that a prior holding has been superseded, and hence is no longer valid as precedent....


65
Policy Statement on En Banc Endorsement of Panel Decisions 2-3 (Jan. 17, 1996) (emphasis added);  see also Dellums  v. United States Nuclear Regulatory Comm'n, 863 F.3d 968,  978 n.11 (D.C. Cir.1988) (Silberman, J.) (rejecting the notion  that en banc review is required to "formally bur[y]" circuit  precedent that is "out of step" with intervening Supreme  Court precedent because "it is black letter law that a circuit  precedent eviscerated by subsequent Supreme Court cases is  no longer binding on a court of appeals") (citing City of  Lafayette v. Louisiana Power & Light Co., 532 F.2d 431, 435  (5th Cir. 1976) ("It is settled that the rule against inconsistent  panel decisions has no application when intervening Supreme Court precedent dictates a departure from a prior panel's  holding.")).  Intended to promote efficiency, the Irons footnote policy allows--but expressly does not require--three judge panels to conclude that it would be economical to  attempt to secure unanimous full-court consent before deciding that a circuit precedent is no longer good law.  Indeed,  just last month a panel of this court comprised of Judges  Ginsburg, Sentelle, and Randolph held, also without using an  Irons footnote, that an otherwise controlling circuit precedent  had been superseded by an intervening Supreme Court decision.  See Kooritzky v. Herman, 178 F.3d 1315 (D.C. Cir. June 18, 1999).  Again, the fact that the  panel's interpretation of an intervening Supreme Court decision turns out to have been mistaken in the instant case does  not indicate that we "disregarded" anything.


66
Equally misleading is Judge Henderson's statement that  the panel's treatment of circuit precedent was "sub silentio."Henderson Op. at 4.  To the contrary, the panel opinion  expressly stated that:  "Insofar as this [holding] contradicts  our holding in Ortez that district courts lack authority to  consider substantial assistance absent a government motion,  Koon effectively overrules that aspect of Ortez."  In re  Sealed Case, 149 F.3d 1198, 1204 (D.C. Cir. 1998).  Furthermore, pursuant to this court's rules, the opinion was circulated to the full court prior to its release;  every judge was fully  aware of and had an opportunity to comment on the opinion  before it issued.


67
Though in error, the panel opinion did not betray any  judicial policy, nor did it indicate that we were somehow  faithless to the rule of law.

Sentelle, Circuit Judge, concurring:

68
I do not disagree  with any part of the court's thorough opinion affirming the  district court.  I write separately only to say that I think this  is not nearly so close a case as the very thoroughness of the  majority opinion might imply.  As the court states, "Our  analysis begins with the language of section 5K1.1, ... 'Upon  motion of the government stating that the defendant has  provided substantial assistance in the investigation or prosecution of another person who has committed an offense, the  court may depart from the guidelines.' "  Maj. Op. at 4.  As  the court's opinion suggests, the venerable canon of construction expressio unius est exclusio alterius, that is, "the mention of one thing implies exclusion of another," would support  an inference that because the Commission expressly provided  for departure upon substantial assistance upon the motion of  the government, the Commission intended to exclude the  possibility of departure without such a government motion. While I find the majority's further reasoning convincing, and  perhaps helpful, in my view, that inference alone would be  sufficient to reach the holding entered by the court today.


69
While I accept, and indeed fully endorse, the holding of  Shook v. D.C. Financial Responsibility & Management Assistance Authority, 132 F.3d 775, 782 (D.C. Cir. 1998), to the  effect that the force of that canon "in particular situations  depends entirely on context, whether or not the draftsmen's  mention of one thing, like a grant of authority, does really  necessarily, or at least reasonably, imply the preclusion of  alternatives," in the context of the guideline, I think that the  mention of the government's motion indeed does imply such  an intent to exclude departure without such motion.  In  Shook, we emphasized that the expressio unius maxim  "should be used as a starting point in statutory construction."Id.  We, however, observed that the "force" of the canon  "turn[s] on whether, looking at the structure of the statute  and perhaps its legislative history, one can be confident that a  normal draftsman when he expressed 'the one thing' would  have likely considered the alternatives that are arguably  precluded."  Id.  After examining the relevant guideline language and the context in which it was adopted, I conclude that a normal draftsman providing for departure upon government motion would have likely considered the alternative--departure without government motion.  I therefore  conclude that the expressio unius maxim precludes departure  under section 5K1.1 absent a government motion.


70
In reaching this conclusion, my application of the expressio  unius canon is assisted by the equally venerable canon of  construction that courts, in construing a statute, or in this  case a guideline, "will avoid a reading which renders some  words altogether redundant."  Gustafson v. Alloyd Co., 513  U.S. 561, 574, 115 S. Ct. 1061, 1069 (1995).  The construction  offered by appellant in the present case, that is, that the  Commission did not by expressly including the authority of a  court to depart upon motion of the government intend to  exclude departure without that motion renders the Commission's inclusion of that condition "altogether redundant."Otherwise put, if the Commission intended for courts to be  empowered to depart on the basis of substantial assistance  without a government motion, why did the Commission include the phrase "upon motion of the government" in the  guideline at all?  Appellant not having supplied any satisfactory answer to that question, I would hold that in the context  of the guideline, the expressio unius canon applies with full  force, and the authority of the court to depart without such a  motion is impliedly excluded.


71
In short, I reiterate that I do not disagree with the more  detailed analysis offered by the court--indeed I find it both  persuasive and correct.  But I do not think it necessary to  our decision.


72
Karen LeCraft Henderson, Circuit Judge, concurring:


73
I wholeheartedly agree with the majority's holding which  disposes of this case with clarity and in full accord with the  decisions of courts, including ours, that have ruled on the  issue.  I write separately to register my concern about the  process leading up to the en banc affirmance of the district  court--which process, I am convinced, disregarded our established procedure and, far worse, failed to honor the bedrock  principle of stare decisis.  Let me explain.


74
The United States Supreme Court has repeatedly characterized stare decisis as "the preferred course because it  promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of  the judicial process."  See, e.g., Hohn v. United States, 118  S. Ct. 1969, 1977 (1998) (quoting Payne v. Tennessee, 501 U.S.  808, 827 (1991)).  For this court, "[t]he doctrine of stare  decisis 'demands that we abide by a recent decision of one  panel of this court unless the panel has withdrawn the opinion  or the court en banc has overruled it.' "  Department of  Treasury v. FLRA, 862 F.2d 880, 882 (D.C. Cir. 1988) (quoting Brewster v. Commissioner, 607 F.2d 1369, 1373 (D.C. Cir.  1979)).  Since at least the early 1980s, the court has from  time to time used the "Irons footnote" to overrule a prior  decision without a full-blown en banc rehearing.  See Irons v.  Diamond, 670 F.2d 265, 268 n. 11 (D.C. Cir. 1981).  Under  the Irons footnote procedure a panel decision departing from  precedent is circulated to the full court for endorsement  before issuance and issued with a footnote indicating the  endorsement.  Over the years, this court has invoked widely  varying justifications for using the procedure, including to  resolve conflicts in circuit law,1 to expand or limit earlier  decisions,2 to reject "dicta"3 or simply to overrule a decision deemed incorrect or outdated.4  To impose some order on  Irons footnote use, the court promulgated a "policy statement" in 1996 setting out specific circumstances "for which  the court reaffirm[ed] the propriety of [the footnote's] use,"  among them when "overruling a more recent precedent  which, due to an intervening Supreme Court decision, ... a  panel is convinced is clearly an incorrect statement of current  law."  Cf. Chemical Waste Management, Inc. v. United  States Envtl. Agency, 873 F.2d 1477, 1481 (rejecting circuit  precedent presuming that statutory reference to "hearing"  requires formal adjudicatory procedure largely because of  intervening holding in Chevron USA, Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843 (1984)).  As  the majority opinion notes, Maj. Op. at 3, the panel here  explicitly acknowledged that its holding "contradicts our holding in [United States v. Ortez, 902 F.2d 61, 64 (D.C. Cir.  1990)] that district courts lack authority to consider substantial assistance absent a government motion," In re Sealed  Case, 149 F.3d 1198, 1204 (D.C. Cir. 1998).  While it did  discuss, and then reject, Ortez, concluding that "Koon effectively overrules that aspect of Ortez," 149 F.3d at 1204, it did  so with no Irons footnote seeking en banc endorsement  (based presumably on "an intervening Supreme Court decision" making Ortez "clearly an incorrect statement of current  law").  Had the panel opinion been circulated to the full court  with an Irons footnote, the opinion would not have been  endorsed unanimously as required (as manifested by today's lopsided vote to the contrary) and it could not have issued in  the form it did.5  The fact that we are correcting our course  now does not, and should not, obscure what necessitated the  correction.


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Even worse, the panel made no mention of five more  recent circuit opinions (at least two of which the government  expressly relied on, see Panel Brief of Appellee at 7, 34),  which, again as the majority notes, reached the same conclusion as Ortez.  See Maj. Op. at 4 & n. 4.  See United States v.  Dyce, 91 F.3d 1462, 1469 (D.C. Cir. 1996) ("[T]he Sentencing  Guidelines make specific provision [in U.S.S.G. § 5K1.1] for a  downward departure where a defendant supplies substantial  assistance to the Government, but only where the Government certifies to the district court that the help received has  been of sufficient value to warrant the departure.") (emphasis  added);  United States v. White, 71 F.3d 920 (D.C. Cir. 1995)  (holding that "in the absence of a government motion the  district court has no authority to depart under section  5K1.1.");  United States v. Jones, 58 F.3d 688, 691 (D.C. Cir.  1995) ("[T]he U.S. Attorney enjoys extraordinary power under section 5K1.1 because, by its terms, a motion of the  Government is a prerequisite to the exercise of judicial discretion to depart below the Guidelines range.") (citation omitted);  United States v. Watson, 57 F.3d 1093, 1096-97 (D.C.  Cir. 1995) ("[I]t is well established that a court may not order  a departure on the ground of the defendant's assistance if the government does not so move under section 5K1.1.") (citing  Ortez, 902 F.2d at 64);  United States v. Doe, 934 F.2d 353,  356-58 (D.C. Cir. 1991) (holding that § 5K1.1's "government  motion requirement" does not violate due process, thereby  "adher[ing] to prior intimations in our own precedent") (citing  Ortez).6  With one sub silentio sweep, the panel reversed this  substantial body of circuit authority.  "Stare decisis" means  "to stand by things decided."  Bryan A. Garner, A Dictionary  of Modern Legal Usage 515 (1987).  Its protection extends to  Ortez as well as the five other cases decided by this court.



Notes:


1
 See, e.g., Irons v. Diamond, 670 F.2d at 268 n. 11;  Lorion v.  United States Nuclear Regulatory Comm'n, 712 F.2d 1472, 1479  (D.C. Cir. 1983).


2
 See, e.g., Londrigan v. FBI, 722 F.2d 840, 844-45 (D.C. Cir.  1983) (purporting to "add to what was said");  United States v.  Brawner, 32 F.3d 602, 603 (D.C. Cir. 1994) ("limiting the scope").


3
 See, e.g., United States Dep't of Navy v. FLRA, 952 F.2d 1434, 1439 (D.C. Cir. 1992);  Chemical Waste Management, Inc. v. United  States Envtl. Protection Agency, 873 F.2d 1477, 1482 (D.C. Cir.  1989);  Melcher v. Federal Open Market Committee, 836 F.2d 561,  563-64 (D.C. Cir. 1987);  Center for Science in Pub. Interest v.  Regan, 802 F.2d 518, 524 (D.C. Cir. 1986).


4
 See, e.g., Harbor Ins. Co. v. Schnabel Found. Co., Inc., 946 F.2d  930, 936 (D.C. Cir. 1991) ("wrongly decided" opinion);  United States  v. Marble, 940 F.2d 1543, 1547 (D.C. Cir. 1991) ("line of cases" that  "ha[d] become a victim of the shifting sands of statute and case  law").


5
 I believe our Irons footnote procedure has serious flaws.  It has  evolved from an expedient device to reconcile inconsistent circuit  holdings into a summary method of overruling unambiguous circuit  precedent, without any of the safeguards or formalities attending  the en banc process.  A three-judge panel determines that fullcourt consideration is warranted and non-panel members concur  without benefit of briefing or argument.  The resulting decision is  then announced by footnote.  Reasoned decision making and stare  decisis call for a more deliberate process.  If we wish to change our  precedent, we should invoke the en banc mechanism expressly  authorized for that purpose by the Federal Rules of Appellate  Procedure.  See Fed. R. App. P. 35.  As long as the Irons footnote  procedure exists, however, the least we should do is follow it.  See,  e.g., Byrd v. Reno, No. 99-5070 (D.C. Cir. June 22, 1999).


6
 Nor did the panel note the decision of the United States  Supreme Court, discussed at length in United States v. White, that  stated:  "[The petitioner's] position is consistent with the view,  which we think is clearly correct, that in both [18 U.S.C.] § 3553(e)  and § 5K1.1 the condition limiting the court's authority gives the  Government a power, not a duty, to file a motion when a defendant  has substantially assisted."  Wade v. United States, 504 U.S. 181,  185 (1992).


