                 UNITED STATES COURT OF APPEALS

                         For the Fifth Circuit




                              No. 92-5091




                    UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee,


                                VERSUS


                           GARY W. BECKETT,

                                                 Defendant-Appellant.




          Appeal from the United States District Court
              for the Western District of Louisiana
                            (July 7, 1993)


Before DAVIS and DeMOSS, Circuit Judges, and ZAGEL1, District
Judge.
DeMOSS, Circuit Judge:
     The question to be determined, one of first impression in this

circuit, is whether the district court has authority to depart



     1
      District Judge of the Northern District of Illinois,
sitting by designation.

                                   1
below the     statutory      minimum   sentence      imposed    by    18   U.S.C. §

924(c)(1) after the government has filed a motion which seeks a

downward departure from the Sentencing Guidelines under U.S.S.G. §

5K1.1 but which specifically asserts that it is not invoking 18

U.S.C. § 3553(e).

                          I.    FACTUAL BACKGROUND

     On May, 7 1992, an information was filed against Gary W.

Beckett ("Beckett") containing the following three counts: (1)

distribution of cocaine in violation of 21 U.S.C. § 841 (a)(1); (2)

carrying a firearm during a drug trafficking offense in violation

of 18 U.S.C. § 924 (c)(1); and (3) forfeiture of property used in

the drug distribution under 21 U.S.C. § 853.             At a hearing held on

May 20, 1992, Beckett pleaded guilty to these charges.

     In exchange for Beckett's plea, the government agreed to file

a motion pursuant to Sentencing Guidelines § 5K1.1.                   This section

allows the government to file a motion for departure from the

Sentencing Guidelines stating that the defendant has provided

substantial    assistance      in   the       government's    investigation        and

prosecution of another person who has committed an offense.                       Upon

such motion, the guidelines grant the district judge discretion to

"depart from the guidelines." U.S.S.G. § 5K1.1.

     In accordance with Rule 11(f), Federal Rules of Criminal

Procedure, the court accepted the plea and set Beckett's sentencing

hearing for October 2, 1992. On September 30, 1990, the government

filed its     motion   for     departure,       "[p]ursuant    to    5K1.1   of    the

Sentencing Guidelines," as required by the plea agreement.


                                          2
      The presentence report put the sentencing range under the

Sentencing Guidelines for the drug offense at 33 to 41 months.               The

report also stated that both Guideline § 2K2.4(a) and 18 U.S.C. §

924(c)(1)    required   a   five   year     sentence    on   the   gun   count.2

However, the report concluded by stating that "the plea agreement

has   a   substantial   impact     on   the   overall    sentencing      options

available to the court as it provides for a 5K1.1 Motion for

Departure from the Sentencing Guidelines as outlined above."

      On October 2, the day Beckett was to be sentenced, the

government filed an amended motion for departure, stating that the

motion was not made pursuant to 18 U.S.C. § 3553(e) and that it did

not authorize the court to impose a sentence below the five-year

statutory minimum under 18 U.S.C. § 924(c)(1). The court postponed

sentencing until October seventh to allow the defendant time to

respond to the government's amended motion.

      At the postponed sentencing, the district court found that the

government's motion for downward departure was warranted as to the

drug charge. Accordingly, the court sentenced Beckett to 20 months



      2
          U.S.S.G. § 2K2.4 (a) states: "If the defendant,
whether or not convicted of another crime, was convicted under 18
U.S.C. § 924(c) ..., the term of imprisonment is that required by
statute."

          18 U.S.C. § 924(c)(1) states in relevant part:
"Whoever, during and in relation to any ... drug trafficking
crime (including a ... drug trafficking crime which provides for
an enhanced punishment if committed by the use of a deadly or
dangerous weapon or device) for which he may be prosecuted in a
court of the United States, uses or carries a firearm, shall, in
addition to the punishment provided for such ... drug trafficking
crime, be sentenced to imprisonment for five years, ..."

                                        3
imprisonment and 3 years supervised release.          However, the court

concluded that it did not have the discretion to depart downward

from the statutory minimum of § 924 (c)(1).             In this regard,

however, the judge stated the following:

     I considered the question of whether I had the discretion
     to depart and I decided that I didn't have the discretion
     to depart, and if and when some court sitting in New
     Orleans says the judge in Shreveport was wrong, he has
     the discretion to depart, then I expect you to move for
     a resentencing or some other event.

Consequently, the district judge sentenced Beckett to the mandatory

5 years imprisonment to run consecutive to the sentence on the drug

count, with 3 years of supervised release to run concurrent with

the other supervised release term.

     On appeal, Beckett asserts that the government's 5K1.1 motion

for downward departure gave the district judge the authority to

depart not only from the Sentencing Guidelines, but also from the

statutory requirements of 18 U.S.C. § 924(c)(1).                  He further

contends   that   had   the   district   judge    believed   he    had   such

discretion, he would have exercised it.          We agree.

                               II. ANALYSIS

     The full text of § 3553(e) of title 18 provides:

     Limited authority to impose a sentence below a statutory
     minimum.--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.

18 U.S.C. § 3553(e).


                                    4
 Section 994(n) of title 28 reads as follows:

      The Commission shall assure that the guidelines reflect
      the general appropriateness of imposing a lower sentence
      than would otherwise be imposed, including a sentence
      that is lower than that established by statute as a
      minimum sentence, to take into account a defendant's
      substantial   assistance   in   the   investigation   or
      prosecution of another person who has committed an
      offense.

28 U.S.C. § 994(n).

And the relevant portion of § 5K1.1 is this:

      Substantial Assistance to Authorities (Policy Statement)

      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.

U.S.S.G. § 5K1.1.

The   commentary    accompanying   §    5K1.1   contains   the   following

"[a]pplication note[]":

      1.   Under circumstances set forth in 18 U.S.C. § 3553(e)
      and 28 U.S.C. § 994(n), as amended, substantial
      assistance in the investigation or prosecution of another
      person who has committed an offense may justify a
      sentence below a statutorily required minimum sentence.

U.S.S.G. § 5K1.1, comment. n. 1.

      Because Beckett pleaded guilty to two criminal statues, one of

which carries a mandatory minimum sentence, this case involves both

18 U.S.C. § 3553(e) and U.S.S.G. § 5K1.1.        The underlying question

to be resolved is whether these two provisions provide for separate

and distinct methods of departure, or whether they are intended to

perform the same function.




                                    5
     Three other circuits have tackled the issue with which we find

ourselves confronted.        In United States v. Cheng Ah-Kai, 951 F.2d

490 (2nd Cir. 1991), the Court was confronted with facts very

similar to ours.        The defendant pleaded guilty to violating two

criminal    statutes,      one    of   which   carries    a    mandatory     minimum

sentence.    In exchange for the defendant's cooperation with the

government, the government agreed to request the sentencing court

to depart below the sentencing guidelines.                Prior to sentencing,

the government sent a letter to the district court recommending a

downward    departure      from    the    guidelines;     it   made    no   mention,

however, of a departure below the statutorily required minimum

sentence.    On appeal both the government and the defendant agreed

that the letter was the equivalent of a 5K1.1 motion.

     At sentencing, the defendant requested a sentence below the

statutory minimum, and the government objected.                    The government

took the position it now takes today, that § 5K1.1 and § 3553(e)

are separate and distinct methods of departure and that in the

absence of a 3553(e) motion, the district court does not have the

authority to depart below the statutory minimum sentence.                         The

district    court    "reluctantly"        agreed   with    the    government      and

sentenced the defendant to the statutory term.

     On    appeal,   the    Second       Circuit   reviewed      the   language    of

sections 3553(e), 994(n), and 5K1.1, as well as the Ninth Circuit's

decision in United States v. Keene, 933 F.2d 711 (9th Cir. 1991)

and the Fourth Circuit's decision in United States v. Wade, 936

F.2d 169 (4th Cir 1991) and came to the following conclusion:

     Analyzing the statutory scheme and the powers of the
     Sentencing Commission conferred by Congress, we likewise


                                           6
       hold that a district court has discretion to depart below
       the statutory minimum sentence following a government
       motion pursuant to § 5K1.1.      In our view, it is not
       necessary for the government to specify that it is moving
       under § 3553(e) for departure below the statutory
       minimum, once the power of the court has been invoked
       under § 5K1.1.

Cheng Ah-Kai, 951 F.2d at 492.

       In reaching this conclusion, the Court found that § 5K1.1

implements the directive of § 994(n) and § 3553(e), and all three

provisions must be read together.            It found that Application Note

1 to § 5K1.1 supported this reading.           More specifically, it found

that by    the   inclusion    of     Application   Note   1,   the   Sentencing

Commission intended § 5K1.1 to be the "conduit" through which §

3553(e) may be applied.

       In Cheng Ah-Kai, the Court also found other factors supporting

"the   connection   between      §   5K1.1   and   §   3553(e)."     The   Court

considered it to be noteworthy that both sections required a

showing of substantial assistance before there can be a sentencing

departure from the guidelines or the statutory minimum.                It found

that § 5K1.1's Background Commentary's reference to § 3553(c)

"highlights the connection between § 5K1.1 and § 3553."                 It also

considered the Sentencing Commission's reference to § 5K1.1 as

governing departures below the statutory minimum in U.S.S.G. §

2D1.1, comment. (n.7) further support for "the contention that the

Sentencing Commission perceives § 5K1.1 as covering departures both

from   'mandatory    (statutory)       minimum'    sentences   and     from   the

guidelines."

       Finally, the Court considered its conclusion to reflect the

proper    balance   of   power     between   the   district    court    and   the



                                        7
prosecution. It noted that although the prosecution is in the best

position to determine whether a defendant's cooperation rises to

the level of substantial assistance, once that determination has

been made, it is within the sound discretion of the sentencing

judge to determine the extent of departure.                  The Court concluded

that to interpret § 5K1.1 and § 3553(e) as providing for two

separate      and   distinct      types   of    departure     would       allow   the

prosecution to determine the extent of departure and impermissibly

usurp the district court's sentencing discretion.

     The Second Circuit found much support for its decision in the

Ninth Circuit's earlier decision in Keene.                   Although the issue

before the Court in Keene is the same confronting us today, the

district court there was persuaded by Keene's argument and decided

that it did have the authority to depart below a statutory minimum

sentence upon a government's 5K1.1 motion for downward departure

based    on   substantial       assistance.      On    appeal,     the    government

contended that the court lacked such discretion in the absence of

a 3553(e) motion by the government.

     The Ninth Circuit engaged in much the same analysis described

above.     It first found that there is nothing in the legislative

history, nor in the language of § 3553 or § 994 to suggest that

Congress      intended    to    vest   with    the    prosecutor    not    only   the

authority to make a substantial assistance motion, but also the

authority      to   set   the    parameters      of    the   court's      sentencing

discretion by choosing to move under § 5K1.1. rather than §

3553(e).       The Court then examined the statutory relationship




                                          8
between § 3553(e), § 5K1.1, Application Note 1 to § 5K1.1, and §

994(n) and came to the following conclusion:

     In light of the substantial cross references between
     5K1.1, 3553(e) and 994(n), we conclude that 994(n) and
     5K1.1 do not create a separate ground for a motion for
     reduction below the guidelines exclusive of 3553(e)'s
     provision for reduction below the statutory minimum.
     Rather, 5K1.1 implements the directive of 994(n) and
     3553(e), all three provisions must be read together in
     order to determine the appropriateness of a sentence
     reduction and the extent of any departure.

Keene, 933 F.2d at 714.

     On the other hand, the Eighth Circuit considered the same

issue in   United States v. Rodriguez-Morales, 958 F.2d 1441, 1443

(8th Cir.1992), cert. denied, 113 S. Ct. 375 (1992) and came to the

opposite conclusion. It based its decision on a literal reading of

§ 5K1.1 which speaks of a departure from "the guidelines" and §

3553(e) which authorizes a departure "below a level established by

statute as minimum ..."     Furthermore, it considered Application

Note 1 to § 5K1.1 as "little more than an academic observation

that, under the circumstances set forth in sections 994(n) and

3553(e), `a sentence below the statutory required minimum sentence'

may be justified."     "Section 5K1.1 does not state that a 5K1.1

motion applies to mandatory minimum sentence, or is the equivalent

of a section 3553(e) motion," continued the Court.

     The Court concluded that the only authority for the district

court to depart below the statutory minimum sentence "exists in the

plainly stated limitation in section 3553(e)."           And since the

government   clearly   indicated   that   it's   substantial   assistance

motion was not based on § 3553(e) but rather on § 5K1.1, the




                                    9
district court was without authority to depart below the statutory

minimum sentence.

     The Court in Rodriguez-Morales also addressed the concern that

their conclusion would "place undue discretion in the hands of the"

government by asserting that "it has been placed there by Congress

and by the Sentencing Commission's failure to draft a guideline or

policy statement dealing with departure below statutorily mandated

minimum sentences." Finally the Court stated, "We are left with no

choice but to hold that the sentencing judge may not depart below

the statutory minimum pursuant to a motion under section 5K1.1

alone. Only a section 3553(e) motion allows for such a departure."

     We find the analysis of Ah-Kai and Keene more persuasive than

that of Rodriguez-Morales.    Recognizing that the critical language

of § 5K1.1 is not identical to that of § 3553(e) does not resolve

the issue.    We must consider that difference in light of the

"substantial cross reference between 5K1.1, 3553(e) and 994(n)" as

evidenced by Application Note 1 to § 5K1.1.     Based on a combined

reading of the aforementioned sections, we conclude that there is

a direct statutory relationship between § 5K1.1 and § 3553(e) of

such a character as to make § 5K1.1 the appropriate vehicle by

which § 3553(e) may be implemented.

     This interpretation of § 5K1.1 and § 3553(e) preserves the

appropriate scope of the government's and the sentencing judge's

authority.    The government is clearly authorized to determine

whether   a   defendant's    cooperation   amounts   to   substantial

assistance.   If it so determines, then it may file a 5K1.1 motion

for downward departure.     Without such a motion, the court cannot



                                  10
consider the defendant's assistance as a ground for downward

departure. United States v. White, 869 F.2d 822, 828-29 (5th Cir.

1989).      However, once the motion is filed, the judge has the

authority to make a downward departure from any or all counts,

without regard to any statutorily mandated minimum sentence.                    We

see nothing in these provisions that causes us to                   believe that

Congress intended to permit the government to limit the scope of

the   court's     sentencing    authority     by    choosing   to   package    its

substantial assistance representation in a 5K1.1 motion rather than

a 3553(e) motion.

       Therefore, we hold that when the prosecution moved under §

5K1.1 for     a     downward   departure     from   the   guidelines   based    on

Beckett's substantial assistance, the district court was authorized

to depart below the statutory minimum sentence imposed by 18 U.S.C.

§ 924 (c)(1).       This holding is based on our conclusion that § 5K1.1

is the appropriate tool by which § 3553(e) may be implemented.

       This holding is supported by our circuit's recent decision in

United States v. Santa Lucia, 991 F.2d 170 (5th Cir. 1993).

Although the Court was not faced with the precise facts we have

before us today, language from Santa Lucia is supportive of our

analysis.

       In Santa Lucia, the defendant pleaded guilty to a single count

charging a violation of a statute which carries a minimum sentence

of    20   years.      In   exchange   for    the    defendant's     substantial

assistance, the government agreed to seek a downward departure to

not more than 18 years.         At sentencing the government moved for a

downward departure to 18 years.            The defendant objected, however,



                                       11
insisting that he should be sentenced within the United States

Sentencing Guideline range of 151 to 188 months, the applicable

range had his offense not been subject to a statutory minimum

sentence.    Nevertheless, the district court imposed an 18 year

sentence, and the defendant appealed, arguing that the district

court impermissibly departed above the applicable guideline range.

       The Court in Santa Lucia first disabused the defendant of his

notion that the district court's departure was upward, rather than

downward, by drawing his attention to U.S.S.G. § 5G1.1(b) which

makes the statutorily required minimum sentence the guideline

sentence in the event the required minimum sentence is greater than

the maximum applicable guideline range.        The Court then addressed

a facet of the issue now before us: whether upon the filing of a

5K1.1 motion the district court is permitted to depart below a

statutorily required minimum sentence.

       In answering this question, the Court examined the language of

§ 3553(e), § 944(n), § 5K1.1, and Application Note 1 to § 5K1.1 and

came   to   the   conclusion   that,   "The   plain   language   of   these

provisions admits of only one interpretation: a sentence below the

statutory minimum is a downward departure from the guideline

sentence."    And since § 5K1.1 allows the district judge to "depart

from the guidelines," the Court concluded that upon a 5K1.1 motion

by the government, the court may depart below a statutory minimum

sentence, citing Cheng Ah-Kai, Keene, and Wade.




                                   12
                           III.   CONCLUSION

        Because it appears to us that the district court's erroneous

construction of U.S.S.G. § 5K1.1 affected the sentence imposed,

United States v. Johnson, 961 F.2d 1188, 1189, n. 1 (5th Cir.

1992), we therefore VACATE the sentence imposed by the district

court and REMAND the case for resentencing.




c:br:opin:92-5091:cf               13
