                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   _____________

                                   No. 99-3857NI
                                   _____________

United States of America,                *
                                         *
             Appellee,                   *
                                         * On Appeal from the United
      v.                                 * States District Court
                                         * for the Northern District of
                                         * Iowa.
Ivy Nelson Fountain,                     *
                                         *
             Appellant.                  *
                                    ___________

                              Submitted: May 9, 2000
                                  Filed: August 31, 2000
                                   ___________

Before RICHARD S. ARNOLD and HEANEY, Circuit Judges, and MAGNUSON,1
      District Judge.
                           ___________

RICHARD S. ARNOLD, Circuit Judge.

      The defendant, Ivy Nelson Fountain, was convicted of two counts of distribution
of cocaine base within 1000 feet of a school in violation of 21 U.S.C. §§ 841(a)(1) and
860(a). At the sentencing hearing, the defendant claimed that he had provided
substantial assistance to the government, and moved for a downward departure from
the Sentencing Guidelines pursuant to U.S.S.G. §§ 5K1.1 and 5K2.0. The District

      1
        The Hon. Paul A. Magnuson, Chief Judge, United States District Court for the
District of Minnesota, sitting by designation.
Court2 denied the motion, reasoning that it did not have the ability to grant a downward
departure for substantial assistance without a motion from the government. The Court
sentenced the defendant to 360 months' imprisonment, the bottom of the Guidelines
range.

       The defendant argues that the District Court erred in holding that it could not
grant a downward departure without a motion from the government. The defendant
concedes that a departure pursuant to U.S.S.G. § 5K1.1 usually cannot be granted
without a substantial-assistance motion from the government, but argues that a § 5K2.0
downward departure is different. The defendant reasons that "substantial assistance"
is an unmentioned factor in § 5K2.0, and therefore, under Koon v. United States, 518
U.S. 81 (1996), substantial assistance could be grounds for a § 5K2.0 departure in an
extraordinary circumstance. See In re Sealed Case, 149 F.3d 1198 (D.C. Cir. 1998),
vacated, 181 F.3d 128 (D.C. Cir.) (en banc), cert. denied, 120 S. Ct. 453 (1999).

       We decline to read Koon in this manner. Part K of the Sentencing Guidelines,
which covers departures, contains two provisions. The first is "substantial assistance
to authorities," and the second is "other grounds for departure." We believe that this
clear division means that "substantial assistance" must be considered under the first
part, and cannot be a ground for departure under the second. A defendant cannot avoid
the § 5K1.1 government-motion requirement by moving for a departure based on
substantial assistance pursuant to U.S.S.G. § 5K2.0. See United States v. Baker, 4
F.3d 622, 624 (8th Cir. 1993). We note that in declining to extend Koon so as to bring
a substantial-assistance departure without a government motion within U.S.S.G. §
5K2.0, we agree with every other Circuit to consider the issue. See In re Sealed Case,
181 F.3d at 140-42; United States v. Alegria, 192 F.3d 179, 189 (1st Cir. 1999); United
States v. Abuhouran, 161 F.3d 206, 213 (3d Cir. 1998), cert. denied, 526 U. S. 1077


      2
        The Hon. Michael J. Melloy, United States District Judge for the Northern
District of Iowa.

                                          -2-
(1999); United States v. Solis, 169 F.3d 224, 227 (5th Cir.), cert. denied, 120 S. Ct.
112 (1999); United States v. Cruz-Guerrero, 194 F.3d 1029, 1032 (9th Cir. 1999).

     We have considered the defendant's other contentions on appeal, and they have
no merit.

      Affirmed.

      A true copy.

             Attest:

                     CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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