                UNITED STATES COURT OF APPEALS
                    FOR THE FIRST CIRCUIT
                                         

No. 93-1606

                  UNITED STATES OF AMERICA,

                          Appellee,

                              v.

                     ZULMA JORGE TORRES,

                    Defendant, Appellant.

                                         

         APPEAL FROM THE UNITED STATES DISTRICT COURT

               FOR THE DISTRICT OF PUERTO RICO

       [Hon. Gilberto Gierbolini, U.S. District Judge]
                                                     

                                         

                            Before

                    Torruella, Chief Judge,
                                          

                    Boudin, Circuit Judge,
                                         

                 and Keeton,* District Judge.
                                            

                                         

Gustavo A. Gelpi, Assistant Federal Public Defender, with whom
                
Benicio  Sanchez-Rivera, Federal  Public  Defender, was  on brief  for
                   
appellant.
Jeanette Mercado-Rios,  Assistant  United  States  Attorney,  with
                     
whom Jose A. Quiles-Espinosa, Senior Litigation Counsel, was  on brief
                        
for the United States.

                                         

                       August 31, 1994
                                         

                

*
Of the District of Massachusetts, sitting by designation.

     BOUDIN,  Circuit Judge.    On December  19, 1992,  Zulma
                           

Jorge-Torres  arrived in San  Juan, Puerto Rico,  on a flight

from Barbados.  Customs  inspection revealed that her handbag

contained a false bottom filled with heroin.  This,  together

with  the  heroin concealed  in her  tennis  shoes and  a pen

holder,  was later found by laboratory  analysis to amount to

1.5  kilograms of  heroin with  a purity  strength of  97 per

cent.  

     Jorge-Torres  was charged  with knowing  possession with

intent  to distribute  and with  importation, in  a two-count

indictment   under  21   U.S.C.      841(a)(1)   and  952(a).

Thereafter, Jorge-Torres  changed her initial not guilty plea

to a  plea of guilty to  both counts and  sought to cooperate

with  the  government.   It  appears  that Jorge-Torres  then

provided the government with whatever limited information she

had concerning  the  network, including  how the  transaction

occurred  and  who  supplied   the  drugs  or  was  otherwise

involved.

     Under the  Sentencing Guidelines,  a quantity of  heroin

between 1 and 3 kilograms corresponds to a base offense level

of  32.   See  U.S.S.G.    2D1.1(a)(3).   With  a  four-point
             

reduction for minimal participation and a further three-point

reduction  for  acceptance  of  responsibility,  U.S.S.G.    

3B1.2(a), 3E1.1(b), Jorge-Torres' total offense level was 25.

Given  a  criminal  history  category  of  I,  the  guideline

imprisonment range was 57-71 months.

     However, by  statute the minimum term  for the offenses,

based on  the quantity of drugs involved,  is ten years.  See
                                                             

21 U.S.C.     841(b)(1)(A), 960(b)(1)(A).   On motion  by the

government, the district court has the authority to "impose a

sentence below a  level established by statute as [a] minimum

sentence  so  as  to  reflect   the  defendant's  substantial

assistance" in  investigating  or prosecuting  another.    18

U.S.C.    3553(e).  See  also U.S.S.G.    5K1.1 (permitting a
                             

comparable  departure  from the  guidelines).   The  district

court  cannot sentence  below  a statutory  minimum based  on

substantial assistance  unless the government so  moves.  See
                                                             

Wade v. United States, 112 S. Ct. 1840 (1992).
                     

     At the sentencing hearing, the district judge encouraged

government counsel  to consider  a departure.   The assistant

U.S.  attorney  declined,  indicating  that  the  information

Jorge-Torres  provided had  not led  to further  arrests, and

that  consequently the  government  did not  believe that  it

could find that substantial  assistance had been furnished in

this case.  The prosecutor did not expressly dispute that the

defendant had in  good faith provided  the government all  of

the information that she possessed.

     Defense counsel pressed the judge to afford a hearing on

substantial assistance but offered no basis for thinking that

                             -3-

anything could be  adduced at  the hearing  beyond the  facts

already described, namely, that Jorge-Torres had done all she

could,  but the leads had not been helpful to the government.

The district court expressed frustration with the guidelines-

-in this instance the statutory minimum is the real culprit--

but  found  that  the  government's  refusal  to  move for  a

departure  made a  further  hearing pointless.   A  statutory

minimum sentence of 10 years was then imposed.

     On   appeal,   counsel   for   defendant   has  made   a

constitutional  attack on  the  statute and  guidelines.   It

violates  equal  protection, so  defense  counsel argues,  to

impose a  long sentence on Jorge-Torres,  a low-level courier

who tries her best to cooperate but has little information to

give, while  providing lower sentences to  major drug dealers

whose  offenses are far more  serious but who  happen to have

plenty of information to  trade.  Accordingly, defendant says

that  the   substantial   assistance  regime   as   currently

structured  provides  discrepant  treatment  that  serves  no

rational purpose consistent with the ends of Congress.

     The  equal protection test is not a demanding one where,

as here,  there is  no suspect classification  underlying the

disparate treatment, nor a  substantial burden on a protected

constitutional  right.   See  City  of  Cleburne v.  Cleburne
                                                             

Living Center,  473 U.S. 432 (1985).  It is not irrational to
             

provide  a reward to a  kingpin whose information permits the

                             -4-

government to shut down  a drug network nor is  it irrational

to withhold such leniency from a less important member of the

ring who tries  to assist but has nothing to  offer.  Indeed,

to offer  leniency in exchange for useful  information is not

inherently  a harsh  arrangement:   only the  10-year minimum

makes it  so.  In any  event, such a regime  plainly does not

lack a rational basis.

     But Jorge-Torres' argument has a somewhat sharper point.

A  reasonable classification,  says defendant's  brief, "must

rest  upon  some  ground  of  difference having  a  fair  and

substantial relation to the  object of the legislation .  . .
                                                      

."  Johnson v. Robison, 415 U.S. 361, 374-75 (1974) (emphasis
                      

added).    Here,  the  defendant argues,  Congress  aimed  at

achieving fairness in sentencing, and there is no fairness in

giving  the defendant a 10-year sentence  when a drug kingpin

could easily receive  a lesser sentence for the same quantity

of  drugs  as  long  as  the  kingpin  brought  along  useful

information to trade in exchange for a lighter sentence.

     It is not clear that this  equal protection argument was

ever  squarely  presented to  the  lower  court  but, as  the

government has  not claimed waiver,  we address the  point on

the merits.   There may  also be  some doubt about  the legal

premise that an  equal protection analysis has  to be focused

solely upon the specific objectives set forth by Congress and

without resort to  other possibilities.   We need not  pursue

                             -5-

this  point because even if  the legal premise  is sound, the

claim of irrationality still fails in this case when measured

against Congress' statutory purposes.

     In  broad  terms it  can be  said  that Congress  in its

sentencing provisions  aimed at  fairness.   Cf. 28  U.S.C.  
                                                

991(b)(1)(B)  (mentioning   fairness).     But  in   fact  an

examination  of the  various statutes  in which  Congress has

referred  to  the purposes  of  sentencing  reveals a  cross-

current   of  objectives  expressed   at  various  levels  of

generality,  e.g.,   18  U.S.C.      3553(a)  (listing  seven
                 

categories of matters  to be considered).  Worse  still, from

Jorge-Torres'  standpoint,  18  U.S.C.     3553(e)  expressly

provides  that departures  below a  statutory minimum  may be

allowed to  reflect a  defendant's substantial  assistance in

investigating or prosecuting others.

     Whatever  one  might  say  in  the  abstract  about  the

fairness of  the  present structure,  it  is plainly  not  an

irrational departure from the objectives that Congress itself
                                        

has  set forth.  On  the contrary, affording  great weight to

substantial assistance--it is virtually  the only occasion on

which the statutory minimums may be disregarded--is Congress'
                                                   

purpose.   While  section 3553(e)  may not  literally command

more  favorable treatment of  kingpins with  information than

for couriers without it, that outcome could easily  have been

foreseen when Congress adopted the provision.

                             -6-

     This  court  has  not  previously  considered  an  equal

protection  challenge  of  this  kind,  although  we  earlier

rejected  a   due  process  challenge   to  the  substantial-

assistance regime.  See United States v. La Guardia, 902 F.2d
                                                   

1010  (1st Cir.  1990).   However, four  other circuits  have

rejected equal protection challenges  not very different from

that  advanced  here.*    The government  has  correctly  not

questioned our authority to review a constitutional attack on

the provision,  even though  refusals to depart  are normally

not  reviewable.  La Guardia,  902 F.2d at  1012.  But having
                            

considered   the  issue   on  its   merits,  we   reject  the

constitutional claim.

     A somewhat  different issue might have  been raised and,

in the interests of justice, we feel compelled to remark upon

it.   From  a  review of  the  transcript of  the  sentencing

hearing,  one might think that  the government here felt that

it lacked  authority  to recommend  a  departure even  if  it

wished  to do so.   It might  appear that the  assistant U.S.

attorney was blaming  the statutory "substantial  assistance"

requirement and saying that his office was unable to move for

a  departure because  none of  the leads  provided by  Jorge-

                

United States v.  Musser, 856 F.2d  1484, 1486-87 (11th  Cir.
                        
1988), cert. denied, 489  U.S. 1022 (1989); United States  v.
                                                         
Rojas-Martinez,  968  F.2d  415,  419-20  (5th  Cir.),  cert.
                                                             
denied,  113 S. Ct.  828 (1992)  and 113  S. Ct.  995 (1993);
      
United  States v. Horn, 946  F.2d 738, 746  (10th Cir. 1991);
                      
United States v.  Broxton, 926 F.2d 1180, 1183-84  (D.C. Cir.
                         
1991).

                             -7-

Torres had resulted in  an arrest or otherwise made  any dent

in a drug cartel.

     The "substantial  assistance" phrase is  a very  general

one.  Despite some  arguments to the contrary, we  think that

it  is at least plausible  to contend that  the prosecutor is

entirely  free   to  treat  as  "substantial   assistance"  a

defendant's provision of a  substantial amount of information

pertaining to  the  operation of  a drug  ring and--at  least

where the defendant has told all he or she can tell--to treat

this  as substantial  assistance,  regardless of  whether  it

results  in a further arrest  or prosecution.   If we thought

that the government was generally confused about this matter,

we would  provide it with further  opportunity for reflection

in this case.

     The government points  out that the guideline  provision

that   paralleled  the  statutory  provision  had  originally

provided  for a  possible departure  where defendant  made "a

good faith  effort" to  provide substantial assistance.   See
                                                             

U.S.S.G. App. C, amendment  No. 290 (November 1989), deleting

the "good  faith" language  and substituting  the requirement

that the defendant provide  substantial assistance.  However,

the  Commission's  stated reason  for the  change--to require

more  than mere "willingness"  to provide  information, id.--
                                                           

does  not  cast  much  light  on  how  much   information  is

substantial.

                             -8-

     In  fact,  we  have  no  reason   to  believe  that  the

government  is in any way  confused about the  broad scope of

its authority  to discern "substantial assistance"  in a good

faith  proffer of specific information about a drug ring by a

low-level defendant.  Rather, we  have a firm impression that

prosecutors  have taken a hard line  in determining what they

will regard as substantial cooperation.  While this will seem

harsh  to  many,  it  is likely  that  the  prosecutors would

explain--if  they  had  any   duty  to  explain--that  it  is

difficult  for them to tell if a defendant has actually given

all  that he  or  she knows.   Thus,  they  might argue,  the

promise  of a reward for results,  and only for results, is a

necessary resort.

     On  this  appeal,  counsel   for  Jorge-Torres  has  not

suggested that  the prosector misunderstood the  scope of his

discretion.   Further, there is  no claim that the prosecutor

was motivated  by an unconstitutional purpose  such as racial
                                     

discrimination, a very small  loophole that the Supreme Court

has left open for possible judicial  review of a prosecutor's

refusal  to move for  a departure.   See Wade, 112  S. Ct. at
                                             

1843.  Defendant's brief does refer to this loophole but only

to assert  the equal  protection claim already  addressed and

rejected.

     Affirmed.
             

                             -9-
