                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 07-1077
                                   ___________

United States of America,                *
                                         *
            Appellant,                   *
                                         *   Appeal from the United States
      v.                                 *   District Court for the
                                         *   Eastern District of Missouri.
Kempheny Stewart,                        *
                                         *
            Appellee.                    *
                                    __________

                             Submitted: October 18, 2007
                                Filed: December 5, 2007
                                 ___________

Before RILEY, MELLOY, and COLLOTON, Circuit Judges.
                            ___________

RILEY, Circuit Judge.

       Kempheny Stewart (Stewart) pled guilty to conspiring to distribute 500 grams
or more of methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A)(viii),
and 846. Stewart’s advisory sentencing Guidelines range was 262 to 327 months’
imprisonment with a mandatory minimum sentence of 240 months’ imprisonment.
After the government filed a motion for downward departure under U.S.S.G. § 5K1.1
and 18 U.S.C. § 3553(e), the district court imposed a sentence of 99 months’
imprisonment. For the reasons stated below, we vacate Stewart’s sentence and
remand the case to the district court for resentencing.
I.    BACKGROUND
      Neither party challenges the facts leading to Stewart’s guilty plea nor do they
dispute Stewart’s advisory sentencing Guidelines range. The only disputed issue is
whether Stewart’s sentence is reasonable. Thus, we briefly state the relevant facts for
our decision to remand this case for resentencing.

      Stewart pled guilty to one count of conspiring to distribute 500 grams or more
of methamphetamine. The unobjected-to presentence investigation report (PSR)
indicated, due to prior felony drug trafficking convictions, Stewart was a career
offender, making his total offense level 34 and his criminal history category VI.
Stewart’s advisory Guidelines range was 262 to 327 months, and his mandatory
minimum sentence was 240 months’ imprisonment. As part of his plea agreement,
Stewart cooperated with the government, and the government filed motions for a
downward reduction based on substantial assistance under U.S.S.G. § 5K1.1 and 18
U.S.C. § 3553(e).

      At sentencing, and based on Stewart’s substantial assistance, the government
recommended a sentence of 180 months’ imprisonment, four offense levels
(approximately 30%) below the bottom of the advisory Guidelines range and 25%
below the mandatory minimum sentence. Stewart argued his sentence should be 120
months’ imprisonment. The district court reduced the sentence further and imposed
a sentence of 99 months’ imprisonment. Stewart’s sentence represented an eleven
level downward departure, more than a 60% reduction from the bottom of the
advisory Guidelines range and almost a 60% reduction from the mandatory minimum
sentence.

      Arguing Stewart’s sentence reduction of eleven levels is unreasonable, the
government appeals.




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II.    DISCUSSION
       “When sentencing a defendant, the district court must first determine the
applicable advisory Guidelines range . . . relying upon [the defendant’s] offense level
and criminal history.” United States v. Dalton, 478 F.3d 879, 881 (8th Cir. 2007)
(Dalton II). “The district court can then decide if a traditional departure from that
advisory range is warranted, including one based upon substantial assistance motions,
by utilizing the Guidelines and the policy statements contained therein, and if so,
arrive at a final advisory Guidelines sentence.” Id. A district court is without
authority to impose a sentence below a mandatory minimum sentence unless, for
example, the government files a motion for downward reduction based on a
defendant’s substantial assistance. See United States v. Williams, 474 F.3d 1130,
1130-31 (8th Cir. 2007) (citing 18 U.S.C. § 3553(e)). “Where a court has authority
to sentence below a statutory minimum only by virtue of a government motion under
§ 3553(e), the reduction below the statutory minimum must be based exclusively on
assistance-related considerations.” Id.; see also United States v. Peterson, No. 06-
3916, 2007 WL 3376981, at *1 (8th Cir. 2007) (Peterson II).

       “When determining the appropriate extent of a substantial-assistance downward
departure, the district court should consider the following five factors: (1) the court’s
evaluation of the significance and usefulness of the defendant’s assistance, taking into
consideration the government’s evaluation of the assistance rendered; (2) the
truthfulness, completeness, and reliability of any information or testimony provided
by the defendant; (3) the nature and extent of the defendant’s assistance; (4) any injury
suffered, or any danger or risk of injury to the defendant or his family resulting from
his assistance; [and] (5) the timeliness of the defendant’s assistance.” United States
v. Dalton, 404 F.3d 1029, 1033 (8th Cir. 2005) (Dalton I) (citing U.S.S.G. §
5K1.1(a)). “These five factors are not ‘an exhaustive list,’ and the district court is not
required ‘to examine each of the listed factors in § 5K1.1 on the record and explain
exactly just what weight it gives to each in its departure decision.’” Id.




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       In addition, we follow the rule that extraordinary circumstances are required to
justify extraordinary reductions from the advisory sentencing Guidelines range. See
United States v. Meyer, 452 F.3d 998, 1001 (8th Cir. 2006). By extraordinary
reductions we mean departures or variances “we have considered particularly large
relative to the two to four offense level adjustments generally envisioned by the
structure of the sentencing guidelines for mitigating or aggravating circumstances.”
United States v. Burns, 500 F.3d 756, 762 (8th Cir. 2007) (en banc) (citing United
States v. Saenz, 428 F.3d 1159, 1162 (8th Cir. 2005)). We must conduct a
proportionality analysis. Id. at 761-62; see also Peterson II, 2007 WL 3376981, at *2.
“[O]ur extraordinary reduction/extraordinary circumstances formulation requires
circumstances of a strength proportional to the extent of the deviation from reductions
envisioned by the guidelines’s structure.” Burns, 500 F.3d at 761-62. “Extraordinary
circumstances are infrequently found and involve assistance going well beyond that
provided by other defendants.” Id. at 763.

       If a defendant’s sentence is appealed, “[w]e review de novo the district court’s
interpretation and application of the Guidelines, we review for clear error the district
court’s factual findings, and we review for an abuse of discretion the district court’s
decision to depart from the appropriate Guideline range.” United States v. Peterson,
455 F.3d 834, 837 (8th Cir. 2006) (Peterson I). We have previously stated, “what the
district court is required to do is act reasonably when exercising the discretion it is
given, and we will not infer a reasoned exercise of discretion from a record that
suggests otherwise or is silent.” Dalton I, 404 F.3d at 1033.

       With these precepts in mind, we find two flaws in Stewart’s sentence. First, the
district court failed to state how it arrived at a 99-month sentence. The record is silent
with respect to the district court’s evaluation of Stewart’s assistance to the
government. Thus, the record does not show a reasoned exercise of the district court’s
sentencing discretion.




                                           -4-
       Second, the record does not indicate any extraordinary circumstances in
Stewart’s assistance that could possibly justify the district court’s extraordinary
reduction of eleven levels. In the U.S.S.G § 5K1.1 and § 3553(e) motions, the
government assessed Stewart’s assistance as timely, truthful, complete, reliable, useful
to secure other guilty pleas by other co-conspirators, and instrumental in securing the
guilty plea of a person considered a “ringleader.” On the other hand, in its substantial
assistance motion, the government also states, “[t]he defendant did not engage in any
proactive assistance such as conducting a ‘controlled buy’ of narcotics or wearing a
listening device to gather evidence. While the [d]efendant agreed to testify if
requested to do so, he ultimately did not testify in any proceeding.” “A substantial
assistance reduction is judged by the degree and quality of the assistance actually
provided, not the defendant’s willingness to do more and inability to do so.” Peterson
II, 2007 WL 3376981 at *2. Stewart’s assistance, based on the government’s motion
alone, could not reasonably be characterized as sufficiently extraordinary to merit an
eleven level sentence reduction. The record also does not indicate Stewart or his
family were ever injured, in danger, or at risk. Stewart’s assistance, as related in this
record, is not extraordinary.

III.   CONCLUSION
       Because the district court did not indicate (1) how Stewart’s assistance was
evaluated and (2) what extraordinary circumstances could exist justifying this
extraordinary reduction of eleven levels in Stewart’s sentence, we cannot determine
the district court reasonably exercised its discretion in sentencing Stewart.1 We,



       1
        The government also argues the district court may have impermissibly blended
Stewart’s criminal history with notions of substantial assistance in imposing Stewart’s
sentence. For purposes of a substantial assistance motion, considering criminal
history would be wrong. See Peterson II, 2007 WL 3376981 at *1; Williams, 474
F.3d at 1130-31. However, from this record, we cannot discern specifically how the
district court considered Stewart’s criminal history in rendering the sentence. Thus,
we cannot conduct a meaningful review of this issue.

                                          -5-
therefore, vacate Stewart’s sentence and remand for resentencing consistent with this
opinion.
                       ______________________________




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