United States v. Burns , 577 F.3d 887 ( 2009 )

WOLLMAN, Circuit Judge.

This case is once again before our court, this time by virtue of a remand from the Supreme Court for reconsideration of our en banc opinion in light of Gall v. United States, 552 U.S. 38, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). See Burns v. United States, — U.S. —, 128 S.Ct. 1091, 169 L.Ed.2d 804 (2008). Having completed our reconsideration, we now affirm.

I.

Background

As set forth in our initial review of this case, United States v. Burns, 438 F.3d 826 (8th Cir.2006) (Bums I), Travis Ray Burns was indicted on one count of conspiracy to manufacture and distribute fifty grams or more of methamphetamine in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846. Burns was subject to a mandatory life sentence under the enhanced penalty provided by 21 U.S.C. § 851. Absent the § 851 enhancement, Burns faced a sentencing range of 188 to 235 months’ imprisonment. In return for Burns’s cooperation, the government agreed to move for a downward departure under United States Sentencing Guidelines § 5K1.1 and 18 U.S.C. § 3553(e).¹

The government advised the district court² at sentencing that Burns had immediately admitted his involvement in the conspiracy and provided detailed information during two separate debriefing sessions regarding the several groups that were involved in manufacturing methamphetamine. Burns twice testified before the grand jury and provided information in several ongoing investigations. His cooperation assisted the government in establishing drug quantity evidence against one defendant, Brad Messerly, and he was a key witness against Victor DeFoe, which enabled the government to obtain an indictment against and secure a plea of guilty from DeFoe. The government characterized Burns’s cooperation as timely, truthful, and complete, and recommended a 15 percent reduction from the otherwise applicable 360-month sentence. Bums I, 438 F.3d at 827-28.

The district court rejected the government’s recommendation and imposed a sentence of 144 months’ imprisonment, which reflected a 60 percent reduction from the 360-month sentence. Id. at 828. We set forth at length the district court’s explanation of its considerations of the § 5K1.1 factors:

I’m going to use 360 months as a starting point. In this case I specifically find under the 5K1.1 factors, factor number 5, the timeliness of the defendant’s assistance, the defendant was exceptionally timely in this case. My understanding is he started cooperating as soon as he was arrested. To me that’s exceptional timeliness. While some defendants start that early, virtually no defendants start earlier than that....

So I find that his timeliness was exceptional and apparently started cooperating before he was advised of the impact of the United States Sentencing Guidelines, before he knew anything about how the guidelines might affect his sentence, before he exercised his Sixth Amendment right to have counsel present. So I think in this case the fifth factor weighs very heavily in favor of the defendant ...

Number 4 does not apply, any injury suffered or danger of risk because I haven’t heard anything about that. Number 3, the nature and extent of the defendant’s assistance, in this case based on the representations of the assistant U.S. attorney, I find that the defendant provided every single bit of information he knew, so you couldn’t — the extent of the defendant’s assistance could not be greater in the sense that he provided all of the information he knew.

Now, it’s true that some defendants have greater information which leads to indictments of more people. But I don’t think that’s necessarily the test. I think the test is did the defendant provide substantial assistance on everything he knew, and in this case he did. So the defendant scores very highly on the third prong.

Defendant scores very highly on the second prong, truthfulness, completeness, and reliability of the information. There’s no information that the defendant’s substantial assistance was anything but a hundred percent complete, a hundred percent truthful, and a hundred percent reliable. So Mr. Burns scores very highly on the second prong.

On — the first prong is the Court’s evaluation of significance and usefulness of the defendant’s usefulness taking into consideration the government’s evaluation of the assistance rendered. Here the government has indicated that the defendant testified twice in front of the grand jury, that he established the drug quantity on one defendant and led to the indictment and guilty plea of another defendant. I find that that was both very significant and very useful.

Now for some reason which the government refuses to disclose, they only recommend 15 percent, but they won’t tell me why they only recommend 15 percent. And the government refuses to indicate how any one of the five 5K1.1 factors affect the 15 percent recommendation.

So while I do take into consideration the government’s evaluation of the significance and usefulness, it’s hard to put any weight on the 15 percent recommendation because the government refuses to disclose how they arrive at that recommendation.

And looking back on the other sentencings that I’ve had, that recommendation is in my view substantially lower than other recommendations the government has made for similarly situated defendants.

Having said all that, I have the independent right under 5K1.1 to evaluate the substantial assistance based on the 5K1 factors as I see it.

Having taken into consideration the fact that the defendant scores very, very highly on the second factor, the third factor, and the fifth factor, I’m going to reduce the defendant’s sentence substantially beyond what the government recommends in this case. That ought to come as no surprise to the government because I have a ten-year history of doing that because I just evaluate the five factors differently than-than how the government does, and the government refuses to disclose how they do it to me.

Id. at 828-29 (quoting Sent. Tr. at 12-15).

The government appealed the sentence, contending that the district court had ignored its recommendation of a 15 percent reduction and that the 60 percent reduction was excessive in light of the assistance Burns had provided. Burns cross-appealed, contending that the district court should have departed from the 188 to 235-month guideline range rather than from the 360-month presumptive life sentence. Id. at 829.

A divided panel of this court affirmed the downward departure awarded by the district court and unanimously affirmed the district court’s use of the 360-month presumptive life sentence as its departure point. Id. at 831.

We granted the government’s petition for en bane rehearing and vacated the panel opinion. On rehearing, we reversed the district court’s departure and affirmed its starting point. United States v. Burns, 500 F.3d 756 (8th Cir.2007) (en banc) (Burns II).

In reversing the departure, we noted that “[djepartures under § 5K1.1 and reductions under § 3553(e) should not be untethered from the structure of the advisory guidelines.” Burns II, 500 F.3d at 761 (quoting United States v. Saenz, 428 F.3d 1159, 1162 (8th Cir.2005)). We also noted that “[bjecause departures and reductions based on § 5K1.1 and § 3553(e) appear contextually within a scheme designed ‘to reduce unwarranted sentence disparities among similar defendants’ ... and because the Sentencing Commission’s sentence adjustments for mitigating or aggravating factors fall close to the recommended guidelines, ‘[ajn extraordinary reduction must be supported by extraordinary circumstances.’ ” Id. at 761 (quoting Saenz, 428 F.3d at 1162).

We also referred to an earlier holding that “ ‘the farther the district court varies from the presumptively reasonable guidelines range, the more compelling the justification ... must be.’ ” Id. at 761 (quoting United States v. McMannus, 436 F.3d 871, 874 (8th Cir.2006)). We concluded our summary of our previous holdings by saying, “In sum, our 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.... [Ujnder this proportionality standard, Burns’s ten-level and 60 percent reduction exceeds the bounds of reasonableness.” Id. at 761-62.

We then went on to acknowledge that the appropriate degree of sentencing reduction cannot be calculated with mathematical precision and that there is a range of reasonableness available to the district court in any given case.... It may be that we have placed too great an emphasis on numerical or percentage lines in conducting the reasonableness inquiry with respect to sentencing reductions .... It may also be that the use of the term “extraordinary” suggests a false dichotomy. The term as applied to reductions should not be read to suggest a true dichotomy in which the location of an imaginary line demarcating “ordinary” from “extraordinary” may be divined by a statistical inquiry. Rather than representing a term of art with unique legal significance, the “extraordinary” label more accurately serves as a convenient characterization of departures that 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.

Id. at 762.

We also explained that aggregate statistics should not be the sole desideratum in weighing the strength of the circumstances justifying a given departure level, id. at 762 n. 3, but that evaluation by percentages may still at times be useful. We also noted that extraordinary circumstances are infrequently found and that the circumstances that we had found to have a strength proportional to the magnitude of the departure granted to Burns could not reasonably have been considered as other than extraordinary. Id. at 763. We observed that the requirement of such circumstances furthered the goal of reducing unjustified sentencing disparities. Id.

We then reviewed the district court’s weighing of Burns’s assistance in the light of the § 5Kl.l(a) factors and concluded the timeliness, truthfulness, and completeness, as well as the nature and extent of Burns’s assistance did not justify the 60 percent reduction in Burns’s sentence. Id. at 763-66. In doing so, we voiced our concern about the impact the reduction granted to Burns might have upon that required to be granted to even more reduction-worthy defendants. Id. at 766.

We concluded our review by agreeing with the district court’s selection of the presumptive life sentence of 360 months as the proper guidelines departure range.

II.

The Court’s Decision in Gall

In Gall, 552 U.S. 38, 128 S.Ct. 586, 169 L.Ed.2d 445, the Supreme Court reversed our holding in United States v. Gall, 446 F.3d 884 (8th Cir.2006). In doing so, the Court jettisoned the showing of proportionality and extraordinary circumstances that we required in Bums II and in our other decisions to justify a departure from the appropriate guidelines range:

In reviewing the reasonableness of a sentence outside the Guidelines range, appellate courts may therefore take the degree of variance into account and consider the extent of a deviation from the Guidelines. We reject, however, an appellate rule that requires “extraordinary” circumstances to justify a sentence outside the Guidelines range. We also reject the use of a rigid mathematical formula that uses the percentage of a departure as the standard for determining the strength of the justifications required for a specific sentence.

Gall, 128 S.Ct. at 594-95.

The Court rejected as inconsistent with the abuse-of-diseretion standard of review applicable to appellate review of all sentencing decisions the heightened standard of review resulting from the requirement of exceptional circumstances and the application of rigid mathematical formulations. Id. at 596. Rather, the sentencing court’s latitude in determining the extent of variance from a guidelines sentence is cabined by the requirement “that a major departure should be supported by a more significant justification than a minor one” and by the requirement that the chosen sentence be adequately explained so as to allow for meaningful appellate review and to promote the perception of fair sentencing. Id. at 597.

Under the abuse of discretion standard of review applicable once a sentence has been determined to be free from any significant procedural error, “[t]he fact that the appellate court might reasonably have concluded that a different sentence was appropriate is insufficient to justify reversal of the district court.” Id.

III.

Issues on Remand

Prior to hearing argument on remand, we asked the parties to submit supplemental briefs on the following issues:

1. Did Gall v. United States, 552 U.S. 38, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007), abrogate or overrule this court’s prior decision “that a reduction in sentence based on [18 U.S.C.] § 3553(e) may be based only on assistance-related considerations,” United States v. Williams, 474 F.3d 1130, 1131 (8th Cir.2007)?

2. To what extent does the Gall standard of appellate review apply to the review of a district court sentence under 18 U.S.C. § 3553(e)?

3. What obligation does the government have to apprise the district court as to the bases underlying its recommendation of a particular downward departure under 18 U.S.C. § 3553(e)?

We will treat these issues in different order, addressing the last issue first.

IV.

Government’s Duty to Disclose

We touched on this issue in our en banc decision, rejecting the government’s contention that the district court failed to give substantial weight to the government’s evaluation of the assistance that Burns had provided. Burns II, 500 F.3d at 765 n. 7. We pointed out that although the commentary to § 5K1.1 requires the district court to give substantial weight to the government’s evaluation of the extent of the defendant’s assistance, the “government’s recommendation is not controlling, however, and it is the district court’s responsibility to determine an appropriate reduction.” Id. (quoting United States v. Haack, 403 F.3d 997, 1005 (8th Cir.2005)). We concluded by saying that we would “not consider final departures substantially at variance with unexplained government recommendations to be de facto proof of discretionary abuse.” Id.

Turning to the specific question on which we requested supplemental briefing, we conclude that the government is under no obligation to apprise the district court with respect to the bases underlying its recommendation of a particular downward departure under § 3553(e) in the absence of a showing that its recommendation was based upon an unconstitutional motivation such as the defendant’s race or religion. Cf. United States v. Armstrong, 517 U.S. 456, 463-64, 116 S.Ct. 1480, 134 L.Ed.2d 687 (1996); Wade v. United States, 504 U.S. 181, 185-86, 112 S.Ct. 1840, 118 L.Ed.2d 524 (1992); United States v. Moeller, 383 F.3d 710, 712 (8th Cir.2004). As the Court noted in Armstrong, “[t]he Attorney General and United States Attorneys retain ‘broad discretion’ to enforce the Nation’s criminal laws. They have this latitude because they are designated by statute as the President’s delegates to help him discharge his constitutional responsibility to ‘take Care that the Laws be faithfully executed.’ ” 517 U.S. at 464, 116 S.Ct. 1480 (citations omitted). In holding that the district court had erred in compelling the government to file a § 3553(e) motion, we stated that “it is not the sentencing court’s function to look behind the prosecutor’s substantial assistance decisionmaking in this fashion. The prosecutor’s evaluation of the quantity and quality of a defendant’s assistance, like a prosecutor’s decision to prosecute, ‘is particularly ill-suited to judicial review.’ ” Moeller, 383 F.3d at 713 (citation omitted).

We conclude that the reasoning set forth in those cases applies with equal force to the question before us in this case. There has been no allegation, much less a showing, of any unconstitutional motive on the government’s part in declining to go beyond the reasons it provided to the district court in explaining its reasons for its 15 percent departure recommendation. Whether elaborating more fully on the reasons for its recommendation might have been a more prudent course to follow was for the government to decide.

V.

Williams Issue

We held in United States v. Williams, 474 F.3d 1130-31 (8th Cir.2007), that after reducing a sentence based on the factors set forth in 18 U.S.C. § 3553(e), a district court may not reduce the sentence further based on factors, other than assistance, set forth in 18 U.S.C. § 3553(a): “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. at 1130-31. We pointed out that the text of § 3553(e) states that the section provides only “[ljimited authority to impose a sentence below a statutory minimum.” Id. at 1131. Further, the body of § 3553(e) spells out that the district court’s authority is limited to imposing a sentence below the statutory minimum only “so as to reflect a defendant’s substantial assistance.” Id. at 1132 (quoting § 3553(e)). A district court would thus exceed the limited authority granted by § 3553(e) if it imposed a sentence below the statutory minimum based in part upon the history and characteristics of the defendant. See § 3553(a)(1). Id.³

We have revisited the holding in Williams post-Gall and have concluded that Gall has not affected the limitations imposed by 18 U.S.C. § 3553(e) upon the district court’s authority to impose a sentence below the statutory minimum. See United States v. Johnson, 517 F.3d 1020 (8th Cir.2008); United States v. Freemont, 513 F.3d 884 (8th Cir.2008). We adhere to the holdings in those cases.⁴ As we read Gall, the Court there was concerned about the heightened standard of review that appellate courts had imposed through the application of concepts such as extraordinary/exceptional circumstances, departure percentages, proportionality review, and the like and said nothing that would indicate that district courts are not bound by the strictures set forth in § 3553(e).

VI.

Post-Gall Review of § 3553(e) Departures

We turn then to the principal issue before us on remand, which is whether the standard of appellate review laid down in Gall applies to our review of a sentence imposed under the provisions of 18 U.S.C. § 3553(e). We conclude that it does.

The Court in Gall noted the district court’s superior position to find and judge the impact of facts under § 3553(a), the district court’s opportunity to see and hear the evidence and thus make credibility determinations, and the district court’s greater access to and familiarity with the individual case and the individual defendant. Gall, 128 S.Ct. at 597-98. The court also noted the district court’s “institutional advantage over appellate courts in making these sorts of determinations, especially as they see so many more Guidelines sentences than appellate courts do.” Id. at 598 (quoting Koon v. United States, 518 U.S. 81, 98, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996)).

The Court went on to note that we had given virtually no deference to the district court’s decision that the § 3553(a) factors justified a significant variance in Gall’s case, saying that although we had correctly stated the appropriate standard of review, we “engaged in an analysis that more closely resembled de novo review of the facts presented and determined that, in [our] view, the degree of variance was not warranted.” Id. at 600.⁵ The Court held that “while the extent of the difference between a particular sentence and the recommended Guidelines range is surely relevant, courts of appeals must review all sentences — whether inside, just outside, or significantly outside the Guidelines range — under a deferential abuse-of discretion standard.” Id. at 591 (emphasis added). See United States v. Livesay, 525 F.3d 1081, 1092 (11th Cir.2008) (reviewing a U.S.S.G. § 5K1.1 departure under the Gall standard of review).

Our recent en banc opinion recounted the limitations imposed by Gall upon the scope of our review of sentences, noting the Supreme Court’s explicit rejection of the use of the concepts extraordinary circumstances and rigid mathematical formulas. United States v. Feemster, 572 F.3d 455, 461-62 (8th Cir.2009) (en banc).

We see no basis upon which to say that the Court’s admonitions regarding the highly deferential view that appellate courts should take towards a district court’s appraisal of the § 3553(a) factors should not also apply to the district court’s findings and determinations regarding the five § 5K1.1 factors as it calculates the substantiality of the defendant’s assistance when ruling on the government’s motion for a reduction under § 3553(e). The institutional advantage that the Court spoke of in Koon and Gall applies with equal force in a § 3553(e) case. We appellate judges can claim no knowledge superior to that of the district court in making the evaluations and findings required by § 5K1.1. Accordingly, our review of the significance and usefulness of a defendant’s assistance should accord the district court’s assessment of that assistance the institutional deference it deserves. True, the district court must take into account the government’s evaluation of the assistance rendered, see § 5Kl.l(a)(l), but beyond that it is for the district court to bring to bear its special vantage-point competence in making the findings and judgments that § 5K1.1 requires of it. Likewise, it is for the district court in the first instance to be concerned about the impact that a reduction in a given case might have in other potential substantial assistance cases.

To say that this is not to say that we no longer have a role to play in reviewing the reasonableness of a § 3553(e) sentence reduction. There must be some limits to the district court’s discretion, for surely a district court’s willy nilly mood-of-the-day reduction should not be insulated from appellate review, and there well may be cases in which a reduction so far exceeds the justification offered in support thereof that it must be set aside.

The question then is whether, after putting aside all notions of exceptional/extraordinary circumstances, departure percentages, proportionality review, and similar data-based standards of review, the reduction granted to Burns is substantively unreasonable. We conclude that it is not. That the reduction was a major one is beyond dispute. Whether it was supported by a sufficiently significant justification is a closer question. After giving the district court’s explanations, which we find to be adequate for meaningful appellate review, the due deference that Gall commands, we conclude that it was. The sentence, although perhaps not that which we might have imposed, finds support in the district court’s assessment of Burns’s assistance. As revealed by the district court’s findings set forth at length above, that assessment was not capricious, whimsical, impressionistic, or ire-driven. We conclude that the sentence does not reflect an abuse of the district court’s discretion, and it is therefore affirmed.

Conclusion

We reaffirm our earlier holding that the district court correctly used the 360-month presumptive life sentence as its departure point in determining the reduction. Accordingly, the district court’s judgment is affirmed in its entirety.

1 . Section 5K1.1 of the Guidelines provides:

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.

(a) The appropriate reduction shall be determined by the court for reasons stated that may include, but are not limited to, consideration of the following:

(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;

(5) the timeliness of the defendant’s assistance.

2 . The Honorable Mark W. Bennett, then Chief Judge, United States District Court for the Northern District of Iowa.

3 . In United States v. Coyle, 506 F.3d 680 (8th Cir.2007), we held that a district court may rely upon the § 3553(a) factors to fashion a sentence above the statutory minimum.

4 . We note that the Tenth Circuit found the reasoning in Williams to be persuasive. See United States v. A.B., 529 F.3d 1275 (10th Cir.2008).

5 . We have observed on more than one occasion that the pr e-Gall articulation of our standard of review may not have been much different from that expressed in Gall. "One may question whether the standard articulated in this court's pr e-Gall proportionality review was substantively different from the Supreme Court’s direction to district courts in Gall that 'a major departure should be supported by a more significant justification than a minor one.’ ” United States v. Lee, 553 F.3d 598, 602 (8th Cir.2009) (quoting Gall, 128 S.Ct. at 597). See also United States v. Marron-Garcia, 555 F.3d 1040, 1041 (8th Cir.2009) (quoting Lee).