In Re Sealed Case No. 97-3112

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued En Banc January 27, 1999

Decided July 9, 1999

No. 97-3112

In re Sealed Case No. 97-3112

(Sentencing Guidelines' "Substantial Assistance")

Appeal from the United States District Court

for the District of Columbia

(No. 95cr00031-02)

A.J. Kramer, Federal Public Defender, argued the cause

and filed the briefs for appellant.

John R. Fisher, Assistant U.S. Attorney, argued the cause

for appellee. With him on the brief was Wilma A. Lewis,

U.S. Attorney.

Before: Edwards, Chief Judge, and Wald, Silberman,

Williams, Ginsburg, Sentelle, Henderson, Randolph, Rogers,

Tatel, and Garland, Circuit Judges.

Opinion for the Court filed by Circuit Judge Garland, with

whom all members of the court join.

Concurring opinion filed by Chief Judge Edwards and

Circuit Judge Tatel.

Concurring opinion filed by Circuit Judge Sentelle.

Concurring opinion filed by Circuit Judge Henderson.

Garland, Circuit Judge: Under section 5K1.1 of the United

States Sentencing Guidelines (U.S.S.G.), a district court may

sentence a criminal defendant below the guideline range

prescribed for the offense, "[u]pon 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." U.S.S.G. s 5K1.1, p.s. (1997).1 This

court was convened en banc to consider whether a district

court also has authority under the Guidelines to depart from

the applicable range when the government declines to file

such a motion. We hold that it does not.

I

A district court is generally required to impose a criminal

sentence from within the range prescribed by the Sentencing

Guidelines. 18 U.S.C. s 3553(b). That range is calculated by

identifying the guideline keyed to the defendant's offense

conduct, applying certain specified adjustments, and coordi-

nating the adjusted offense level with a criminal history

category based on the defendant's prior criminal conduct.

See U.S.S.G. s 1B1.1. Employing that analysis in this case,

the district court calculated the applicable guideline range

and sentenced defendant to forty months in prison, a point in

the middle of the range.2

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1 Unless otherwise indicated, all references are to the 1997 edition

of the Sentencing Guidelines Manual, which is the edition governing

defendant's case. See U.S.S.G. s 1B1.11, p.s. Because this case

remains under seal, we recite only those facts necessary to frame

the legal issues.

2 See 21 U.S.C. s 846. The district court initially sentenced

defendant to 60 months imprisonment, the statutory minimum

sentence for his offense (conspiracy to distribute and to possess

Under certain circumstances, a court may depart down-

ward from the sentencing range generated by the Guidelines.

See 18 U.S.C. s 3553(b). Defendant contended that assis-

tance he rendered to the government in connection with the

investigation of other offenders qualified him for a departure

under Guidelines s 5K1.1. The government, however, de-

clined to file a motion stating that defendant had provided

substantial assistance. In accord with our decision in United

States v. Ortez, 902 F.2d 61, 64 (D.C. Cir. 1990), the district

court held that such a motion was a "prerequisite to down-

ward departure from a guidelines sentence for substantial

assistance," and denied defendant's request.

In In re Sealed Case (Sentencing Guidelines' "Substantial

Assistance"), 149 F.3d 1198 (D.C. Cir. 1998), a panel of this

court reversed. The panel acknowledged that our holding in

Ortez barred a departure for substantial assistance in the

absence of a government motion. In the panel's view, howev-

er, the Supreme Court effectively overruled Ortez in Koon v.

United States, 518 U.S. 81 (1996), leaving district courts free

"to depart from the Guidelines based on a defendant's sub-

stantial assistance where circumstances take the case out of

the relevant guideline heartland." 149 F.3d at 1204. Be-

cause the district court had concluded that it lacked authority

to depart without a motion, the case was remanded for

possible resentencing. Id. On November 3, 1998, we grant-

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with intent to distribute 500 grams or more of cocaine). See 21

U.S.C. s 841(b)(1)(B)(ii); 21 U.S.C. s 846. That sentence was

vacated and remanded by a panel of this court on the ground that

defendant was eligible for treatment under the "safety valve"

provision of the Sentencing Guidelines, U.S.S.G. s 5C1.2, which

Congress added in 1994, see 18 U.S.C. s 3553(f). In re Sealed Case

(Sentencing Guidelines' "Safety Valve"), 105 F.3d 1460 (D.C. Cir.

1997). The safety valve provision requires district courts to disre-

gard statutory minimum sentences, and instead to sentence pursu-

ant to the Guidelines, when a defendant satisfies five indicators of

reduced culpability. Id. Following remand, the district court

applied an additional reduction applicable to safety valve cases, see

U.S.S.G. s 2D1.1(b)(6), recalculated defendant's guideline sentenc-

ing range, and sentenced him to the 40 months noted in the text.

ed the government's suggestion for rehearing en banc, and

vacated the portion of the panel's opinion holding that depar-

tures for substantial assistance are available in the absence of

a government motion.3

The question at issue here--whether a district court may

depart without a motion under any circumstances--is a ques-

tion of law which we effectively review de novo. See United

States v. Sun-Diamond Growers, 138 F.3d 961, 975 (D.C. Cir.

1998) (citing Koon, 518 U.S. at 100), aff'd on other grounds,

119 S. Ct. 1402 (1999). Applying that standard, we now

reaffirm our prior holding in Ortez and affirm the judgment

of the district court.

II

Our analysis begins with the language of section 5K1.1,

which reads, in relevant part: "Upon motion of the govern-

ment stating that the defendant has provided substantial

assistance in the investigation or prosecution of another per-

son who has committed an offense, the court may depart from

the guidelines." The question is whether the United States

Sentencing Commission intended the phrase, "[u]pon motion

of the government," to mean only upon motion of the govern-

ment. In Ortez, and in five subsequent opinions issued prior

to the Supreme Court's decision in Koon, we held that a

government motion was a prerequisite for a substantial assis-

tance departure.4 Every other circuit to announce a holding

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3 We left (and leave) untouched the panel's rejection of defen-

dant's alternative argument that section 5K1.1 is invalid because the

Sentencing Commission issued it as a policy statement rather than

a formal guideline. See 149 F.3d at 1200-01. Defendant's sugges-

tion for rehearing on that issue was denied.

4 See Ortez, 902 F.2d at 64; see also United States v. Dyce, 91

F.3d 1462, 1470 (D.C. Cir. 1996) (holding a substantial assistance

departure available "only where the Government certifies to the

district court that the help received has been of sufficient value to

warrant the departure"); United States v. White, 71 F.3d 920, 927

(D.C. Cir. 1995) ("[I]n the absence of a government motion the

district court has no authority to depart under section 5K1.1.");

on the issue reached the same conclusion,5 and, as discussed

below, the circuits have continued to adhere to that position

since Koon was decided as well. See infra note 12.

To be sure, the language of section 5K1.1 is susceptible to

more than one reading. Although the section clearly provides

that if the government moves the court may depart, it does

not necessarily compel the inverse proposition--that if the

government does not move the court may not depart. The

legal maxim expressio unius est exclusio alterius ("the men-

tion of one thing implies the exclusion of another") is not

always correct. Rather, as we recently noted, "[t]he maxim's

force in particular situations depends entirely on context,

whether or not the draftsmen's mention of one thing, like a

grant of authority, does really necessarily, or at least reason-

ably, imply the preclusion of alternatives." Shook v. D.C.

__________

United States v. Jones, 58 F.3d 688, 691 (D.C. Cir. 1995) (holding

that "a motion of the Government is a prerequisite to the exercise

of judicial discretion to depart below the Guideline range"); United

States v. Watson, 57 F.3d 1093, 1096 (D.C. Cir. 1995) (same);

United States v. Doe, 934 F.2d 353, 355 (D.C. Cir. 1991) (same).

5 See United States v. Reina, 905 F.2d 638, 641 (2d Cir. 1990);

United States v. Higgins, 967 F.2d 841, 845 (3d Cir. 1992); United

States v. Wade, 936 F.2d 169, 171 (4th Cir. 1991); United States v.

Levy, 904 F.2d 1026, 1035 (6th Cir. 1990); United States v. Goroza,

941 F.2d 905, 908-09 (9th Cir. 1991); United States v. Lee, 989 F.2d

377, 379 (10th Cir. 1993); United States v. Alamin, 895 F.2d 1335,

1337 (11th Cir. 1990). Although three circuits initially speculated in

dicta that there might be an "egregious" case or "extraordinary"

assistance exception to the motion requirement, see United States v.

Romolo, 937 F.2d 20, 24-25 (1st Cir. 1991); United States v. White,

869 F.2d 822, 829 (5th Cir. 1989); United States v. Justice, 877 F.2d

664, 668-69 (8th Cir. 1989), those circuits now appear to have

narrowed that exception to cases involving unconstitutional motives

or irrational or bad faith refusals to file by the government. See

United States v. Amparo, 961 F.2d 288, 293-94 (1st Cir. 1992);

United States v. Solis, 169 F.3d 224, 227 (5th Cir. 1999); United

States v. Kelly, 18 F.3d 612, 617-18 (8th Cir. 1994). We reach a

similar result in Parts IV and V infra.

Fin. Responsibility & Management Assistance Auth., 132

F.3d 775, 782 (D.C. Cir. 1998).

In the present context, however, it is clear that by authoriz-

ing departures with government motions, the Commission did

intend to preclude departures without motions. This is clear

because the Commission borrowed the phrasing of section

5K1.1 from two other provisions whose preclusive meaning is

well-established, and which in turn borrowed from a tradition

of similar statutory provisos that have been interpreted in the

same way.

The Commission's authority to promulgate section 5K1.1

arises from Congress' instruction, in 28 U.S.C. s 994(n), that

the Commission "assure that the guidelines reflect the appro-

priateness of imposing a lower sentence than would otherwise

be imposed ... to take into account a defendant's substantial

assistance...." Notably, Congress did not require the Com-

mission to include an "upon motion of the government"

proviso for guideline departures based on substantial assis-

tance. See Melendez v. United States, 518 U.S. 120, 125 n.3

(1996). The Commission had the discretionary authority to

do so, however, and did not have far to look for appropriate

models.6

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6 Defendant argues that the language of 28 U.S.C. s 994(n),

which requires the Commission to "assure that the guidelines

reflect the general appropriateness of imposing a lower sentence"

for defendants who provide substantial assistance to the govern-

ment, compels the conclusion that section 5K1.1 cannot alone consti-

tute adequate consideration of substantial assistance. Def. Supp.

Br. at 11. But Congress did not direct the Commission to assure

departures whenever a defendant provides substantial assistance.

Rather, section 994(n) left it to the Commission to determine the

"general appropriateness" of lesser sentences, and it was within the

Commission's authority to conclude that lowering sentences for

substantial assistance would only be appropriate upon government

motion. As we previously said in rejecting the claim that section

5K1.1 conflicts with section 994(n), "[t]he fact that Congress itself

drafted a substantial assistance provision containing a government

motion requirement [18 U.S.C. s 3553(e)]--located, as it so hap-

pens, immediately prior to section 994(n) in the original legisla-

Section 994(n) was enacted as part of the Anti-Drug Abuse

Act of 1986. Adjacent to that section in the Act were two

other sentencing-departure provisions which, respectively, en-

acted 18 U.S.C. s 3553(e) and amended Rule 35(b) of the

Federal Rules of Criminal Procedure.7 Both included nearly

identical "upon motion of the government" clauses, and it is

thus apparent that in drafting section 5K1.1 the Commission

intended that section to be read in pari materia with 18

U.S.C. s 3553(e) and Rule 35(b). See United States v. Abu-

houran, 161 F.3d 206, 211 (3d Cir. 1998) ("The Commission

drew on the provision Congress itself enacted allowing courts

to sentence below statutory mandatory minima based on

substantial assistance if the government so moves."); see also

United States v. Doe, 940 F.2d 199, 203 n.7 (7th Cir. 1991);

United States v. Romolo, 937 F.2d 20, 23 (1st Cir. 1991);

United States v. Doe, 934 F.2d 353, 359 (D.C. Cir. 1991).

Section 3553(e) governs the circumstances under which a

district court may select a sentence below a mandatory

minimum set by a congressional statute--as compared to

section 5K1.1, which applies to the selection of a sentence

below a Sentencing Commission guideline. Section 3553(e)

states:

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 defen-

dant's substantial assistance in the investigation or pros-

ecution of another person who has committed an offense.

Such sentence shall be imposed in accordance with the

guidelines and policy statements issued by the Sentenc-

__________

tion--precludes any doubts as to the reasonableness of the Commis-

sion's inclusion of such a requirement in section 5K1.1." Doe, 934

F.2d at 359 (D.C. Cir.).

7 See Anti-Drug Abuse Act of 1986, Pub. L. No. 99-570, tit. I,

subtit. A, s 1008, 100 Stat. 3207, 3207-7 (1986) (codified at 28 U.S.C.

s 994(n)); id. s 1007(a), 100 Stat. at 3207-7 (codified at 18 U.S.C.

s 3553(e)); id. s 1009(a), 100 Stat. at 3207-8 (amending Fed. R.

Crim. P. 35(b)).

ing Commission pursuant to section 994 of title 28,

United States Code.

18 U.S.C. s 3553(e). In Melendez v. United States, the

Supreme Court interpreted section 3553(e) to "require[ ] a

Government motion ... before the court may impose such a

sentence." 518 U.S. at 125-26 (1996). The Supreme Court's

construction of language that is virtually identical to the

language of section 5K1.1, and is adjacent to its authorizing

provision, is powerful authority for the manner in which we

should read section 5K1.1 itself.8

Rule 35(b) of the Federal Rules of Criminal Procedure

governs the reduction of a defendant's sentence for substan-

tial assistance provided after the initial sentence was imposed.

After the 1986 amendment, the Rule read:

The court, on motion of the Government, may within one

year after the imposition of a sentence, lower a sentence

to reflect a defendant's subsequent, substantial assis-

tance in the investigation or prosecution of another per-

son who has committed an offense, in accordance with

the guidelines and policy statements issued by the Sen-

tencing Commission pursuant to section 994 of title 28,

United States Code.

Fed. R. Crim. P. 35(b)(1987).9 As with section 3553(e), courts

have interpreted Rule 35(b) as requiring a motion before a

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8 Defendant attaches some significance to the fact that section

3553(e) provides that upon motion a court shall have "authority" to

impose a sentence below the statutory minimum, while section

5K1.1 provides that upon motion a court "may" depart from the

Guidelines. This truly is a distinction without a difference. Com-

pare Black's Law Dictionary 132 (6th ed. 1990) (defining "authori-

ty" as "permission"), with id. at 979 (defining "may" as expressing

"permission").

9 The provision permitting a reduction for substantial assistance,

including the phrase "on motion of the government," was added to

Rule 35 by the Sentencing Reform Act of 1984, Pub. L. No. 98-473,

tit. II, s 215(b), 98 Stat. 1837, 2016 (1984). The 1986 amendment

brought the Rule to the form quoted in text. Following amend-

judge may depart. See, e.g., Doe, 940 F.2d at 202 (7th Cir.)

(holding that "a Government motion is required to trigger the

current Rule 35(b)"); United States v. Lewis, 896 F.2d 246,

248 (7th Cir. 1990) (same).

Moreover, sections 5K1.1 and 3553(e), and Rule 35(b), are

part of a congressional tradition of placing similar provisos in

statutes that implicate issues of prosecutorial discretion and

judgment. For example, 18 U.S.C. s 6003(a) provides that,

"upon the request of the United States attorney for such

district," a district court shall issue an order compelling the

immunized testimony of a witness who refuses to testify.

Likewise, the Ethics in Government Act provides that,

"[u]pon receipt of an application" from the Attorney General,

a special division of this court shall appoint an independent

counsel. 28 U.S.C. s 593(b)(1). As with section 3553(e) and

Rule 35(b), these statutes have been read to mean that courts

may act only upon a request from the government. See

United States v. Doe, 465 U.S. 605, 616-17 (1984); In re

Kaminski, 960 F.2d 1062, 1063 (D.C. Cir. Spec. Div. 1992).

In both cases, the courts adopted such readings in reliance

upon a tradition of legislative and judicial deference to prose-

cutorial discretion in matters involving the investigation and

prosecution of criminal cases.10

The process of evaluating the extent and significance of a

defendant's "assistance in the investigation or prosecution of

another person" falls well within this tradition. See Wade v.

__________

ments made in 1998, Rule 35(b) now reads in pertinent part: "If the

Government so moves within one year after the sentence is im-

posed, the court may reduce a sentence to reflect a defendant's

substantial assistance...." Fed. R. Crim. P. 35(b) (1999).

10 See Doe, 465 U.S. at 616 ("The decision to seek use immunity

necessarily involves a balancing of the Government's interests in

obtaining information against the risk that immunity will frustrate

the Government's attempts to prosecute the subject of the investi-

gation."); Kaminski, 960 F.2d at 1064 (relying on Supreme Court

precedent that "the executive branch has exclusive authority and

absolute discretion to decide whether to prosecute a case") (quoting

United States v. Nixon, 418 U.S. 683, 693 (1974)).

United States, 504 U.S. 181, 185 (1992) (noting that prosecu-

tor's authority to seek a section 5K1.1 departure is compara-

ble to "a prosecutor's other decisions"); Abuhouran, 162 F.3d

at 215 (noting that without a motion requirement, "the court

would need to inquire into the nature, credibility, and signifi-

cance of the defendant's assistance.... [I]n doing so a court

would be drawn into inappropriate scrutiny of prosecutorial

decisionmaking."). As we have said before, "the government

motion requirement is not a sinister impediment to a defen-

dant's exercise of her substantive due process rights, but

rather a practical device that allows the government to give

appropriate weight to its investigative and enforcement activi-

ties...." Doe, 934 F.2d at 358 (D.C. Cir.). See Wade, 504

U.S. at 187 ("The Government's decision not to move may

have been based not on a failure to acknowledge or appreciate

[the defendant's] help, but simply on its rational assessment

of the cost and benefit that would flow from moving.") (citing

Doe, 934 F.2d at 358 (D.C. Cir.)).11 The point is not that

courts are incapable of making such evaluations. Nor is it

that letting them do so will always result in debilitating

intrusions into core prosecutorial functions. It is simply that

the "upon motion of the government" proviso falls squarely

within a tradition of deferring to prosecutorial initiative in

order to avert such a possibility, and that this tradition

formed the backdrop for the Commission's drafting of section

5K1.1.

Although the Supreme Court has interpreted the nearly

identical language of section 3553(e) to require a government

motion before a court may depart from a statutory minimum

sentence, the Court has not yet ruled directly with respect to

a departure from the Guidelines under section 5K1.1. In two

cases, however, it has strongly suggested that a government

motion is required under section 5K1.1 as well.

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11 See also Doe, 934 F.2d at 358 (D.C. Cir.) ("[T]he government

motion provision of section 5K1.1 is predicated on the reasonable

assumption that the government is best positioned to supply the

court with an accurate report of the extent and effectiveness of the

defendant's assistance.") (internal quotation omitted).

In Wade v. United States, 504 U.S. 181 (1992), the defen-

dant challenged the government's refusal to file a motion

seeking a substantial assistance departure under both sec-

tions 5K1.1 and 3553(e). The Court held that the govern-

ment's refusal to file such a motion is subject to judicial

review, but only upon a substantial threshold showing that

the prosecutor had an unconstitutional motive for refusing to

file. Because the defendant conceded that the court could not

depart without a motion, and merely challenged the govern-

ment's refusal to file one, Wade does not decide the precise

issue before us.

But Wade's dicta in that direction could hardly have been

stronger. For example, the Court described the "upon mo-

tion" clause of both section 3553(e) and section 5K1.1 as "the

condition limiting the court's authority":

Wade concedes, as a matter of statutory interpretation,

that s 3553(e) imposes the condition of a Government

motion upon the district court's authority to depart, and

he does not argue otherwise with respect to s 5K1.1....

Wade's position is consistent with the view, which we

think is clearly correct, that in both s 3553(e) and

s 5K1.1 the condition limiting the court's authority

gives the Government a power, not a duty, to file a

motion when a defendant has substantially assisted.

504 U.S. at 185 (internal citations omitted) (emphasis added).

In like vein, the Court said, "although a showing of assistance

is a necessary condition for relief, it is not a sufficient one."

Id. at 187. Indeed, there would have been little reason for

the Court to decide whether the government's refusal to file a

motion was subject to judicial review if the Court had be-

lieved such a motion was unnecessary to authorize a depar-

ture in the first place.

As noted above, the Court held in Melendez v. United

States, 518 U.S. at 125-26, that section 3553(e) requires a

government motion before a court may depart below a statu-

tory minimum. The issue in Melendez was whether a motion

filed pursuant to section 5K1.1, requesting a departure below

the Sentencing Guidelines, is sufficient to permit the court to

depart below the statutory minimum as well. The court held

that it is not, and that a motion requesting a departure below

the statutory minimum also is required. Again, the precise

question here was not at issue there, since the government

had filed a section 5K1.1 motion on Melendez's behalf. But

the Court did repeat Wade's dictum, which Wade had applied

to both sections 3553(e) and 5K1.1, that "substantial assis-

tance 'is a necessary condition for [a departure, but] it is not a

sufficient one.' " 518 U.S. at 126 n.4 (quoting Wade, 504 U.S.

at 187) (alteration in original). And although Justices O'Con-

nor and Breyer dissented in part, they did not dispute that

dictum. To the contrary, they were even more explicit than

the majority, stating flatly that section 5K1.1 "permit[s]

judges to depart downward for 'substantial assistance' only if

the Government makes a 'motion'...." Id. at 133 (Breyer,

J., joined by O'Connor, J., concurring in part and dissenting

in part) (emphasis added).

Because the Sentencing Commission has not issued an

interpretation of the meaning of section 5K1.1, there is no

administrative construction to which we may defer. Cf. Stin-

son v. United States, 508 U.S. 36, 44-46 (1993). Our task,

then, is to decide upon the best reading of section 5K1.1's

language. That task is not difficult, given the Supreme

Court's interpretation of the virtually identical language of

section 3553(e), the drafting history suggesting a Commission

intention that section 5K1.1 be read in pari materia with that

statute (and with Rule 35(b)), the accepted interpretation of

similar language in other statutes, and strong Supreme Court

dicta regarding the meaning of section 5K1.1 itself. These

considerations compel us to conclude that a court may depart

for substantial assistance only upon the filing of an appropri-

ate motion by the government.

III

In arguing that a district court may depart even in the

absence of a government motion, the defendant contends that

Koon wrought a transformation in the law so fundamental as

to overrule our earlier decision in Ortez and, implicitly, to

render inappropriate the kind of interpretative method em-

ployed above. No other circuit has adopted this view. To

the contrary, in numerous post-Koon cases, the circuits have

continued to rule that departures require government mo-

tions.12 The Third Circuit has specifically addressed and

rejected claims that Koon changed the substantial assistance

landscape. See Abuhouran, 161 F.3d at 207-09. And while

the Fifth Circuit initially adopted a position like that of

defendant, see United States v. Solis, 161 F.3d 281 (5th Cir.

1998), after we vacated our panel's decision it vacated its own

as well, and held that Koon did not alter the requirement of a

government motion. United States v. Solis, 169 F.3d 224 (5th

Cir. 1999).

In this Part, we first set forth the Supreme Court's analysis

in Koon, and then discuss the defendant's contentions and our

own conclusions regarding the relevance of Koon to section

5K1.1.

A

In Koon, the Supreme Court considered the standard of

review applicable to a district court's decision to depart from

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12 See, e.g., Abuhouran, 161 F.3d at 211 (3d Cir. 1998); United

States v. Schaefer, 120 F.3d 505, 508 (4th Cir. 1997); Solis, 169 F.3d

at 226 (5th Cir. 1999); United States v. Benjamin, 138 F.3d 1069,

1073 (6th Cir. 1998); United States v. Carter, 122 F.3d 469, 476 (7th

Cir. 1997); United States v. Barrett, 173 F.3d 682, 684 (8th Cir.

1999); United States v. Mikaelian, 168 F.3d 380, 385 (9th Cir.

1999); United States v. Cerrato-Reyes, ___ F.3d ___ (10th Cir.

1999), available at 1999 WL 273427 *9; United States v. Gonsalves,

121 F.3d 1416, 1419 (11th Cir. 1997). In United States v. Santoyo,

146 F.3d 519 (7th Cir. 1998), a panel of the Seventh Circuit

considered a defendant's claim "that his assistance was so substan-

tial that it justified a departure under s 5K2.0," even in the absence

of a government motion. The court did not reject the legal theory

behind the claim, but noted that it would require proof of assistance

so unusual "as to take it out of the heartland of s 5K1.1 cases," and

concluded that defendant's assistance was not of that caliber. San-

toyo, 146 F.3d at 525-26. We address this legal theory in Part IV

below.

a guideline sentencing range, and concluded that the appro-

priate standard was abuse of discretion. 518 U.S. at 98-99.

In the course of reaching that conclusion, the Court adopted a

four-part taxonomy of grounds for departure originally sug-

gested by then-Chief Judge Breyer in United States v. Riv-

era, 994 F.2d 942 (1st Cir. 1993). According to this taxono-

my, departure factors are classified as either: (1) forbidden,

(2) encouraged, (3) discouraged, or (4) unmentioned. Because

this taxonomy is at the heart of defendant's analysis of

section 5K1.1, we consider it in some detail.

Koon began by noting that the authority of a district court

to depart from the Guidelines derives from 18 U.S.C.

s 3553(b), which permits departure if "the court finds that

there exists an aggravating or mitigating circumstance of a

kind, or to a degree, not adequately taken into consideration

by the Sentencing Commission in formulating the guide-

lines...." To determine "whether a circumstance was ade-

quately taken into consideration by the Commission," the

Court said, "Congress instructed courts to 'consider only the

sentencing guidelines, policy statements, and official commen-

tary of the Sentencing Commission.' " 518 U.S. at 92-93

(quoting s 3553(b)). "Turning [its] attention, as instructed,

to the Guidelines Manual," the Court noted the Commission's

statement that the Guidelines were formulated "to apply to a

heartland of typical cases," and hence that "factors that may

make a case atypical provide potential bases for departure."

Id. at 93.

Koon further noted, however, that "[s]entencing courts are

not left adrift" as to which factors may be considered in

making departures, and how such consideration should pro-

ceed. First, certain factors are "forbidden," and can never be

used as bases for departure. Id. at 94-95. Second, certain

factors are "encouraged." These are factors the Commission

was unable to take into account fully in formulating the

Guidelines. If a factor is encouraged, "the court is authorized

to depart if the applicable Guideline does not already take it

into account." Id. If the applicable guideline already does

take the encouraged factor into account, a court may still

depart in reliance upon it, "but only if 'it is present to a

degree substantially in excess of that which ordinarily is

involved in the offense.' " Id. at 95 (citing U.S.S.G. s 5K2.0,

p.s.). Third, certain factors are "discouraged." Such factors

are those " 'not ordinarily relevant to determination of wheth-

er a sentence should be outside the applicable guideline

range.' " Id. (quoting U.S.S.G. Ch. 5., Pt. H, intro. com-

ment.). They may be used for departure "only if the factor is

present to an exceptional degree." Id. at 96.

Finally, under the Koon taxonomy, if a factor is neither

forbidden, encouraged nor discouraged, it is "unmentioned."

An unmentioned factor may be used as the basis for depar-

ture if "it is sufficient to take the case out of the [applicable]

Guideline's heartland"--i.e., the range of typical cases to

which the guideline was meant to apply. Id. Koon cau-

tioned, however, that "the Commission's expectation [was]

that departures based on grounds not mentioned in the

Guidelines will be 'highly infrequent.' " Id. (quoting U.S.S.G.

Ch. 1, Pt. A).

B

In applying the Koon taxonomy to the instant case, defen-

dant begins with the proposition that the factor at issue

here--which he describes as "substantial assistance without a

government motion"--is not a forbidden factor. It is not

forbidden, he contends, because nothing in the Sentencing

Guidelines expressly prohibits departures in the absence of

government motions. Although he regards "substantial assis-

tance with a government motion" as an encouraged factor, he

does not contend that assistance without a motion is also

encouraged. He does, however, deny that it is discouraged,

since, again, "the Guidelines nowhere expressly discourage

departures based on 'substantial assistance without a govern-

ment motion.' " Def. Supp. Br. at 10 (internal quotation

omitted).

This leaves only the "unmentioned" category, which is

where defendant places substantial assistance without a mo-

tion. Koon, he contends, requires that the Guidelines be

interpreted precisely. If a factor has not been expressly

mentioned, then it has not been adequately taken into account

by the Commission. Because substantial assistance without a

motion has not been expressly mentioned, defendant argues

that like any other unmentioned factor it can be the basis of a

departure where circumstances take the case out of the

relevant guideline heartland. Thus, he concludes, Koon effec-

tively overrules Ortez.

We approach with some skepticism the contention that

Koon effectively overruled Ortez, and with it scores of cases

in this and other circuits. Section 5K1.1 was neither at issue,

nor mentioned, in the Koon opinion. The Court decided

Melendez, which repeated the dictum of Wade, just four days

after deciding Koon and without any suggestion that a funda-

mental transformation in the meaning of section 5K1.1 had

just occurred. Indeed, although Melendez was in large part

about the meaning of section 3553(e), it was also about the

meaning of section 5K1.1, yet the Court resolved the case

without once mentioning Koon. See 518 U.S. at 130-31.

Our general skepticism aside, we reject the defendant's

proposed application of Koon to section 5K1.1 for two specific

reasons. First, he misidentifies the departure factor at issue

in this case, and hence misplaces the factor within the Koon

taxonomy. Second, he incorrectly assumes that a "clear

statement" canon governs the reading of the entire Guidelines

Manual, and particularly of section 5K1.1.

The relevant departure factor here is neither "substantial

assistance to authorities without a government motion" nor

"substantial assistance to authorities with a government mo-

tion." Rather, the appropriate characterization of the factor

is the one the Commission itself used in titling section 5K1.1:

"Substantial Assistance to Authorities," simpliciter. The

government motion proviso is a procedural limitation upon

the applicability of the factor, but it is not a defining aspect of

the factor itself.13

__________

13 See Abuhouran, 161 F.3d at 213 ("The requirement of a

government motion under s 5K1.1 is a condition limiting a court's

authority to grant a defendant a substantial assistance depar-

ture.... and simply cannot be described as a 'sentencing factor.'

As Koon explained, a departure factor is an "aggravating

or mitigating circumstance of a kind, or to a degree, not

adequately taken into consideration by the Commission." 518

U.S. at 106 (quoting 18 U.S.C. s 3553(b)). In the case of a

downward departure, the factor must, of course, be a "miti-

gating" one. But if, as defendant concedes, "substantial

assistance with a government motion" is a factor the Commis-

sion did adequately take into consideration, the only thing

that distinguishes the factor defendant contends is at issue

here is the absence of a government motion. And we do not

see why the unwillingness of the government to file a motion

should itself be a basis for leniency. Cf. Abuhouran, 161 F.3d

at 213 ("[T]he existence vel non of a government motion

concerning assistance ... is not a sentencing factor. A

sentencing factor is a relevant offense or offender characteris-

tic.").

Once the factor actually at issue here is identified, its place

in the Koon taxonomy becomes clear. Substantial assistance

to authorities cannot be an unmentioned factor since it is

specifically mentioned in section 5K1.1. Nor is it in any way

telling, as the defendant contended at oral argument, that this

factor was not included in the list of forbidden factors cata-

logued in Koon. See 518 U.S. at 93 (listing, inter alia, race,

sex, and economic hardship as forbidden factors).14 Koon did

not list substantial assistance as a forbidden factor because it

is not one; section 5K1.1 specifically contemplates that it may

be used as a ground for departure. Rather, substantial

assistance is an encouraged factor and, like the other encour-

aged factors, the Guidelines provide that a court "may"

__________

... Rather, the factor ... is [defendant's] alleged substantial

assistance to the government.") (internal citations omitted).

14 Indeed, more telling is that Koon's list of forbidden factors

omitted the one factor that is directly related to assistance to

authorities: refusal to assist authorities. See U.S.S.G. s 5K1.2, p.s.

("A defendant's refusal to assist authorities in the investigation of

other persons may not be considered as an aggravating sentencing

factor."). The Court's omission of this factor further supports the

conclusion that the analysis in Koon has little applicability to

departures for substantial assistance.

depart when it is present. Compare U.S.S.G. s 5K1.1, p.s.,

with s 5K2.10, p.s. (court "may" depart based on victim

conduct), and s 5K2.13, p.s. (court "may" depart based on

defendant's diminished mental capacity). There is, therefore,

no warrant for treating substantial assistance as an unmen-

tioned factor within the Koon taxonomy.

This is not to deny that substantial assistance remains

unlike the other departure factors discussed in Koon. It is

the only one that comes with a procedural limitation--the

motion requirement discussed above.15 But it is hardly sur-

prising that the Guidelines should treat this factor differently

from the others. It is the only factor Congress permitted as

a basis for departures below a statutory minimum, see 18

U.S.C. s 3553(e); the only factor Congress specifically direct-

ed the Commission to address for guideline departures, see 28

U.S.C. s 994(n); and the only factor to which the Commission

devoted a separate subpart in the Guidelines Manual, com-

pare U.S.S.G. Ch. 5, Pt. K(1) ("Substantial Assistance to

Authorities"), with id. Pt. K(2) ("Other Grounds for Depar-

ture"). And since substantial assistance was not at issue in

Koon, it is not surprising that the Court did not address its

unique place in the taxonomy.

Our second disagreement with defendant is with his under-

lying assumption that, post-Koon, a "clear statement" canon

governs every aspect of the Guidelines Manual. He urges us

to permit departures without motions because the Guidelines

"nowhere expressly address 'substantial assistance without a

government motion.' " Def. Supp. Br. at 10 (citation omitted)

(emphasis added). The emphasized word, however, is not to

be found in Koon itself, and certainly not in Melendez which

was decided just four days later. See Melendez, 518 U.S. at

129 ("Although the various relevant guidelines provisions

could certainly be clearer, we also believe that the govern-

ment's interpretation of the current provisions is the better

__________

15 See Schaefer, 120 F.3d at 508 ("[A] departure under s 5K1.1,

p.s. is different from the typical basis for departure.... Unlike all

other grounds for departure, in order for a district court to base a

departure upon a defendant's substantial assistance ... the Govern-

ment must first move the district court to do so.").

one."). Indeed, Koon itself said that "an impermissible factor

need not be invoked by name to be rejected." Koon, 518 U.S.

at 110.

It is true that in Koon, the Court held that even though the

Guidelines (in s 5H1.10) make socioeconomic status a forbid-

den factor, a defendant's job loss remains an unmentioned,

permissible one. "[S]ocioeconomic status and job loss," the

Court said, "are not the semantic or practical equivalents of

each other." 518 U.S. at 110. But whether or not "semantic

equivalence" is the test for comparing a listed departure

factor against an asserted one, Koon did not make it the test

for determining whether a listed departure factor is limited

by a procedural condition--let alone a universal rule for

reading the Guidelines Manual as a whole.

Moreover, the reason the Supreme Court looked to seman-

tic or practical equivalence in Koon was that it was a sensible

way to determine whether the factors at issue there were

sufficiently similar to indicate that the Commission's consider-

ation of one meant it had also considered the other. In Koon,

it was not hard to imagine that the Commission could have

considered the relevance of a defendant's pre-offense socio-

economic status (which would go to the question of culpabili-

ty), without at the same time considering the relevance of

post-conviction job loss (which would go to the quite different

question of collateral punishment). As the Court said, "the

link is not so close." 518 U.S. at 510. But here the link is

quite close. "With a motion" and "without a motion" are not

equivalents precisely because they are opposites. And we

find it difficult to believe that the Commission could have so

compartmentalized its thinking as to address directly the

relevance of substantial assistance with a government motion,

yet fail to take account of the opposite possibility that the

government might not file a motion. To the contrary, we

concluded in Part II that the Commission did affirmatively

decide--consciously adopting the model of section 3553(e)--

that substantial assistance without a motion does not qualify

for a departure.16 And we find nothing in Koon to suggest

__________

16 For these reasons, even if the relevant factor here were

"substantial assistance without a motion," we could not regard it as

unmentioned, but instead would have to regard it as forbidden.

that the usual interpretive methods employed in that Part are

inappropriate for reading section 5K1.1.17

IV

In this Part, we consider defendant's additional argument

that even if a court lacks authority to depart without a motion

under section 5K1.1, it has an independent source of depar-

ture authority under Guidelines s 5K2.0. That section begins

by stating:

Under 18 U.S.C. s 3553(b), the sentencing court may

impose a sentence outside the range established by the

applicable guidelines, if the court finds 'that there exists

an aggravating or mitigating circumstance of a kind, or

to a degree, not adequately taken into consideration by

the Sentencing Commission in formulating the guide-

lines....'

Subsequent sentences note that the Commission has identi-

fied certain factors that may warrant departure from the

Guidelines, and discuss circumstances under which depar-

tures based on those factors, as well as additional factors,

may be appropriate. Subsequent guideline sections identify

eighteen such specific factors. U.S.S.G. ss 5K2.1-5K2.18.

As the now-familiar language quoted above suggests, de-

fendant's argument from section 5K2.0 is essentially the same

__________

17 Koon's own subsequent treatment of the job-loss factor further

supports reliance on such methods. Although the Court concluded

that consideration of job loss was not generally prohibited, it held

such consideration was barred when the offense at issue was one

like 18 U.S.C. s 242 (deprivation of rights under color of law). "It

is to be expected that a government official would be subject to" job

loss for such an offense, the Court said, and "so we conclude these

consequences were adequately considered by the Commission in

formulating" the offense guideline applicable to section 242. Koon,

518 U.S. at 110-11. The Court reached this conclusion, however,

despite the absence of any reference to job loss in the applicable

offense guideline, U.S.S.G. s 2H1.4 (1992), and without any other

express evidence indicating the Commission actually had recognized

what the Court thought was logically "to be expected."

argument we considered in Part III, dressed in not very

different clothes. Section 3553(b), quoted in the first line of

section 5K2.0, is the statutory source of authority for all

departures. And the subsequent sentences of section 5K2.0

form part of the basis for the departure taxonomy the Court

developed in Koon. But Koon did not suggest that section

5K2.0 was a source of authority for substantial assistance

departures independent of section 5K1.1. Accordingly, defen-

dant's specific reference to this section adds little to the

argument rejected in Part III. Indeed, as defense counsel

conceded at oral argument, if we read section 5K1.1 as saying

that a substantial assistance departure is permissible only

upon motion of the government, then we cannot read section

5K2.0 as countermanding that injunction. And as we have

already read section 5K1.1 that way, and as we find nothing

in section 5K2.0 to cast doubt on that reading, we conclude

that section 5K2.0 does not provide an independent source of

authority for substantial assistance departures.

This conclusion is strongly supported by the structure of

the Guidelines Manual itself. Chapter 5, Part K of the

Manual is entitled "Departures." Subpart 1 of Part K, which

includes section 5K1.1, is entitled "Substantial Assistance to

Authorities." Subpart 2, which begins with section 5K2.0 and

follows with the eighteen specific departure-factor sections, is

entitled "Other Grounds for Departure."18 This structure

confirms the conclusion that it is section 5K1.1, and not

section 5K2.0, that contains the Commission's guidance re-

garding departures based on substantial assistance. See

Solis, 169 F.3d at 227 (holding that "a district court has no

more authority to depart for substantial assistance under

s 5K2.0 than it has under s 5K1.1"); Abuhouran, 161 F.3d at

213 (same).19

__________

18 U.S.S.G. Ch. 5, Pt. K, Subpt. 2 (emphasis added). The title was

the result of a deliberate choice on the part of the Commission.

Subpart 2 was originally entitled "General Provisions," and was

changed to "Other Grounds for Departure" as part of "editorial and

clarifying" changes made in 1990. See U.S.S.G. App. C., amend.

358.

19 This conclusion is also supported by considering the implica-

tions of accepting defendant's argument. On that argument, it

Defendant briefly asserted a further, closely-related argu-

ment in his initial briefs, although he appeared to abandon it

in his response to the petition for rehearing.20 According to

this argument, even if section 5K1.1 bars substantial assis-

tance departures in the absence of a motion, that section--

like other guideline sections--has a "heartland" and section

5K2.0 permits a departure from it in an atypical case. That

is, even if "ordinary" substantial assistance is not enough for

a departure without a motion, extraordinary assistance could

be.21

We rejected this argument prior to Koon,22 and nothing in

Koon suggests we should revive it now. Koon itself discussed

__________

would be appropriate for a court to depart as long as substantial

assistance were not adequately taken into account in formulating

the "relevant guideline applicable to the particular offense" commit-

ted by the defendant. Def. Resp. to Pet. for Reh'g at 7. But as the

Commission's promulgation of section 5K1.1 suggests, and as de-

fense counsel conceded at oral argument, substantial assistance was

not taken into account in drafting any of the offense guidelines.

Hence, the logical consequence of defendant's theory is that a

defendant's substantial assistance would take a case out of the

heartland of every offense. This would both render the motion

provision of section 5K1.1 essentially irrelevant, and contravene

"the Commission's expectation that departures based on grounds

not mentioned in the Guidelines will be 'highly infrequent.' " Koon,

518 U.S. at 96 (quoting U.S.S.G. Ch. 1, Pt. A).

20 Compare Def. Br. at 37, with Def. Resp. to Pet. for Reh'g at 7.

Defendant may have decided not to press this argument because he

never contended that he provided an extraordinary level of assis-

tance to the government.

21 See supra notes 5, 12 (citing cases discussing this theory).

22 See White, 71 F.3d at 928 ("[The circumstances surrounding a

defendant's cooperation with the government can never be of a kind

or degree not adequately contemplated by the Commission. 'Coop-

eration with the prosecutors simply cannot be sufficiently extraordi-

nary to warrant a departure under s 5K2.0 absent a government

motion under s 5K1.1.' ") (quoting United States v. Aslakson, 982

F.2d 283, 284 (8th Cir. 1992)).

departures from offense guidelines and adjustments, not de-

partures from guidelines that themselves regulate departures.

That is the general context in which the Guidelines Manual

discusses departures as well,23 and we have some doubt as to

whether a "departure from a departure guideline" was con-

templated by the Commission or even constitutes a coherent

sentencing concept 24

We have no doubt, however, that even if otherwise appro-

priate, the departure-from-a-departure concept cannot apply

to section 5K1.1. Nothing about section 5K1.1 suggests that

its procedural bar is limited to "substantial but not extraordi-

nary" assistance25--just as there is no such limitation upon

__________

23 See, e.g., U.S.S.G. s 5K2.0, p.s. ("Where, for example, the

applicable offense guideline and adjustments do take into consider-

ation a factor listed in this subpart, departure from the applicable

guideline range is warranted only if the factor is present to a

degree substantially in excess of that which ordinarily is involved in

the offense.") (emphasis added).

24 Of course, a factor denominated as "discouraged" under the

Koon taxonomy may be used for departure "if the factor is present

to an exceptional degree." Koon, 518 U.S. at 96. But to do so is

not to "depart" from the relevant discouraged factor guideline, since

such guidelines state that specified factors are not "ordinarily"

relevant for departure--implying that under unusual circumstances

they may be. See, e.g., U.S.S.G. s 5H1.6, p.s. (family ties "not

ordinarily relevant" for departure). The same is true for encour-

aged factors already taken into account by applicable offense guide-

lines. See, e.g., U.S.S.G. s 5K2.7, p.s. (departure for disruption of

governmental function "ordinarily would not be justified" when

offense is bribery "unless the circumstances are unusual"). See

generally Koon, 518 U.S. at 94-96. There is no such language in

s 5K1.1.

25 See United States v. Agu, 949 F.2d 63, 65-66 (2d Cir. 1991)

("The 'to a degree' component of section 3553(b) offers no escape

from procedural limitations like the 'motion of the government'

requirement of section 5K1.1. It is one thing to permit a departure

where the commission has assigned a value to some circumstance

and in a particular case that circumstance is present to such a

degree that the sentencing judge may fairly conclude that adequate

the procedural bar of 18 U.S.C. s 3553(e). "Substantial"

assistance is the minimum necessary to qualify for a section

5K1.1 departure; it does not serve as both a floor and a

ceiling. Since we have concluded that the Commission in-

tended section 5K1.1 to bar a departure for substantial

assistance in the absence of a motion, and that section 5K2.0

does not serve as an alternative source of authority for

substantial assistance departures, there is no room for the

loophole defendant seeks. "To hold otherwise 'would under-

mine, if not eviscerate' the government motion requirement of

section 5K1.1." United States v. White, 71 F.3d 920, 928

(D.C. Cir. 1995) (quoting United States v. Watson, 57 F.3d

1093, 1096 (D.C. Cir. 1995)).

V

We conclude that in the absence of a government motion, a

district court lacks authority under the Guidelines to depart

from the applicable sentencing range on the basis of a defen-

dant's substantial assistance. This is not to say that a court

may never sentence below the Guidelines when a prosecutor

refuses to file an authorizing motion. As the Supreme Court

stated in Wade, district courts have the authority to grant

relief "if they find that the refusal was based on an unconsti-

tutional motive," or "if the prosecutor's refusal to move was

not rationally related to any legitimate Government end."

Wade, 504 U.S. at 185-86. A court may also grant relief if

the defendant's cooperation was provided pursuant to a plea

agreement, and the government's refusal to file is attributable

to bad faith or other breach of the agreement. See United

States v. Jones, 58 F.3d 688, 692 (D.C. Cir. 1995); United

States v. Sparks, 20 F.3d 476, 479 (D.C. Cir. 1994); Doe, 934

F.2d at 361 (D.C. Cir.); see also Wade, 504 U.S. at 185 (citing

Santobello v. New York, 404 U.S. 257, 262-63 (1971)). But

the authority to grant relief in such cases derives not from

the Sentencing Guidelines themselves, but from law exoge-

__________

consideration by the Commission was lacking. It is quite another

thing to permit departures from procedural requirements....").

nous to the Guidelines--namely, from principles of contract

and the Constitution.26

The defendant has not contended that any of these princi-

ples apply to his case. Nor has the government filed a

motion on his behalf. Accordingly, a departure is unavailable

and the judgment of the district court is affirmed.

__________

26 Our analysis, although not our result, differs in this regard

from that of the Third Circuit. In Abuhouran, that Circuit conclud-

ed that a prosecutor's refusal to file a substantial assistance motion,

because of unconstitutional motive or bad faith with respect to a

plea agreement, would take the case out of the heartland of s 5K1.1

and give a judge authority to depart under Guidelines s 5K2.0. See

161 F.3d at 214.

Edwards, Chief Judge, and Tatel, Circuit Judge, concur-

ring:

We originally viewed this case as turning on the difference

between two distinct departure factors--substantial assis-

tance with a government motion versus substantial assistance

without a government motion--but we are now persuaded

otherwise. Having benefitted from en banc review, we are

convinced by the Guidelines' language, structure, and drafting

history that the relevant departure factor is properly charac-

terized simply as substantial assistance, that the government

motion requirement constitutes a procedural limitation on its

availability, and that the Sentencing Commission "did intend

to preclude departures without [government] motions." Maj.

Op. at 6.

We continue to believe, however, that courts must exercise

particular caution before concluding that the Commission

actually has chosen to limit district judges' traditional sen-

tencing discretion, and that the expressio unius maxim, by

itself, is "too thin a reed" to have much force in this context.

Cf. Mobile Communications Corp. of Am. v. FCC, 77 F.3d

1399, 1405 (D.C. Cir. 1996) (internal quotation and citation

omitted). To be sure, exercising caution is not the same as

applying a full-fledged "plain statement" canon, but in close

cases we should steer away from inferring that the Commis-

sion has limited traditional judicial sentencing discretion. As

the Commission itself has recognized, the Guidelines were

never intended to remain static; to the contrary, the Commis-

sion's ability continually to monitor an evolving federal sen-

tencing common law is central to its goal of refining and

improving the Guidelines over time. See U.S.S.G. Ch.1, Pt.A,

intro. cmt. 4(b). Judge Garland's thorough opinion reflects

the scrutiny appropriate in these cases.

* * *

We do not understand why Judge Henderson feels the need

to accuse Senior Judge Buckley and us of "disregard[ing] our

established [Irons footnote] procedure and, far worse,

fail[ing] to honor the bedrock principle of stare decisis."

Henderson Op. at 1. She is wrong on both counts.

To begin with, stare decisis simply has no applicability if a

prior precedent has been altered by an intervening decision

from a higher court. No case Judge Henderson cites casts

doubt on this unassailable proposition. Acting in good faith,

the three-judge panel in this case unanimously concluded that

Koon v. United States, 518 U.S. 81 (1996), effectively over-

ruled this court's prior decision in United States v. Ortez, 902

F.2d 61 (D.C. Cir. 1990), by altering the analytical framework

governing the availability of sentencing departures. The fact

that we ultimately turned out to be wrong in our application

of Koon does not mean that we "failed to honor" stare decisis.

Judge Henderson also misrepresents this court's Irons

footnote policy. Although the policy certainly permits a

panel to use an Irons footnote to secure full-court endorse-

ment before ruling that an intervening Supreme Court deci-

sion has overruled a circuit precedent, the policy does not

require it. In fact, in a passage that Judge Henderson fails

to cite, the policy clearly states that:

Nothing in the foregoing statement of the court's

policy is intended ... to limit a panel's discretion to

decide a case without resort to en banc endorsement. In

other words, a panel may always.... determine ...

that a prior holding has been superseded, and hence is no

longer valid as precedent....

Policy Statement on En Banc Endorsement of Panel Deci-

sions 2-3 (Jan. 17, 1996) (emphasis added); see also Dellums

v. United States Nuclear Regulatory Comm'n, 863 F.3d 968,

978 n.11 (D.C. Cir.1988) (Silberman, J.) (rejecting the notion

that en banc review is required to "formally bur[y]" circuit

precedent that is "out of step" with intervening Supreme

Court precedent because "it is black letter law that a circuit

precedent eviscerated by subsequent Supreme Court cases is

no longer binding on a court of appeals") (citing City of

Lafayette v. Louisiana Power & Light Co., 532 F.2d 431, 435

(5th Cir. 1976) ("It is settled that the rule against inconsistent

panel decisions has no application when intervening Supreme

Court precedent dictates a departure from a prior panel's

holding.")). Intended to promote efficiency, the Irons foot-

note policy allows--but expressly does not require--three-

judge panels to conclude that it would be economical to

attempt to secure unanimous full-court consent before decid-

ing that a circuit precedent is no longer good law. Indeed,

just last month a panel of this court comprised of Judges

Ginsburg, Sentelle, and Randolph held, also without using an

Irons footnote, that an otherwise controlling circuit precedent

had been superseded by an intervening Supreme Court deci-

sion. See Kooritzky v. Herman, No. 98-5424, 1999 WL

397427 (D.C. Cir. June 18, 1999). Again, the fact that the

panel's interpretation of an intervening Supreme Court deci-

sion turns out to have been mistaken in the instant case does

not indicate that we "disregarded" anything.

Equally misleading is Judge Henderson's statement that

the panel's treatment of circuit precedent was "sub silentio."

Henderson Op. at 4. To the contrary, the panel opinion

expressly stated that: "Insofar as this [holding] contradicts

our holding in Ortez that district courts lack authority to

consider substantial assistance absent a government motion,

Koon effectively overrules that aspect of Ortez." In re

Sealed Case, 149 F.3d 1198, 1204 (D.C. Cir. 1998). Further-

more, pursuant to this court's rules, the opinion was circulat-

ed to the full court prior to its release; every judge was fully

aware of and had an opportunity to comment on the opinion

before it issued.

Though in error, the panel opinion did not betray any

judicial policy, nor did it indicate that we were somehow

faithless to the rule of law.

Sentelle, Circuit Judge, concurring: I do not disagree

with any part of the court's thorough opinion affirming the

district court. I write separately only to say that I think this

is not nearly so close a case as the very thoroughness of the

majority opinion might imply. As the court states, "Our

analysis begins with the language of section 5K1.1, ... 'Upon

motion of the government stating that the defendant has

provided substantial assistance in the investigation or prose-

cution of another person who has committed an offense, the

court may depart from the guidelines.' " Maj. Op. at 4. As

the court's opinion suggests, the venerable canon of construc-

tion expressio unius est exclusio alterius, that is, "the men-

tion of one thing implies exclusion of another," would support

an inference that because the Commission expressly provided

for departure upon substantial assistance upon the motion of

the government, the Commission intended to exclude the

possibility of departure without such a government motion.

While I find the majority's further reasoning convincing, and

perhaps helpful, in my view, that inference alone would be

sufficient to reach the holding entered by the court today.

While I accept, and indeed fully endorse, the holding of

Shook v. D.C. Financial Responsibility & Management As-

sistance Authority, 132 F.3d 775, 782 (D.C. Cir. 1998), to the

effect that the force of that canon "in particular situations

depends entirely on context, whether or not the draftsmen's

mention of one thing, like a grant of authority, does really

necessarily, or at least reasonably, imply the preclusion of

alternatives," in the context of the guideline, I think that the

mention of the government's motion indeed does imply such

an intent to exclude departure without such motion. In

Shook, we emphasized that the expressio unius maxim

"should be used as a starting point in statutory construction."

Id. We, however, observed that the "force" of the canon

"turn[s] on whether, looking at the structure of the statute

and perhaps its legislative history, one can be confident that a

normal draftsman when he expressed 'the one thing' would

have likely considered the alternatives that are arguably

precluded." Id. After examining the relevant guideline lan-

guage and the context in which it was adopted, I conclude

that a normal draftsman providing for departure upon gov-

ernment motion would have likely considered the alterna-

tive--departure without government motion. I therefore

conclude that the expressio unius maxim precludes departure

under section 5K1.1 absent a government motion.

In reaching this conclusion, my application of the expressio

unius canon is assisted by the equally venerable canon of

construction that courts, in construing a statute, or in this

case a guideline, "will avoid a reading which renders some

words altogether redundant." Gustafson v. Alloyd Co., 513

U.S. 561, 574, 115 S. Ct. 1061, 1069 (1995). The construction

offered by appellant in the present case, that is, that the

Commission did not by expressly including the authority of a

court to depart upon motion of the government intend to

exclude departure without that motion renders the Commis-

sion's inclusion of that condition "altogether redundant."

Otherwise put, if the Commission intended for courts to be

empowered to depart on the basis of substantial assistance

without a government motion, why did the Commission in-

clude the phrase "upon motion of the government" in the

guideline at all? Appellant not having supplied any satisfac-

tory answer to that question, I would hold that in the context

of the guideline, the expressio unius canon applies with full

force, and the authority of the court to depart without such a

motion is impliedly excluded.

In short, I reiterate that I do not disagree with the more

detailed analysis offered by the court--indeed I find it both

persuasive and correct. But I do not think it necessary to

our decision.

Karen LeCraft Henderson, Circuit Judge, concurring:

I wholeheartedly agree with the majority's holding which

disposes of this case with clarity and in full accord with the

decisions of courts, including ours, that have ruled on the

issue. I write separately to register my concern about the

process leading up to the en banc affirmance of the district

court--which process, I am convinced, disregarded our estab-

lished procedure and, far worse, failed to honor the bedrock

principle of stare decisis. Let me explain.

The United States Supreme Court has repeatedly charac-

terized stare decisis as "the preferred course because it

promotes the evenhanded, predictable, and consistent devel-

opment of legal principles, fosters reliance on judicial deci-

sions, and contributes to the actual and perceived integrity of

the judicial process." See, e.g., Hohn v. United States, 118

S. Ct. 1969, 1977 (1998) (quoting Payne v. Tennessee, 501 U.S.

808, 827 (1991)). For this court, "[t]he doctrine of stare

decisis 'demands that we abide by a recent decision of one

panel of this court unless the panel has withdrawn the opinion

or the court en banc has overruled it.' " Department of

Treasury v. FLRA, 862 F.2d 880, 882 (D.C. Cir. 1988) (quot-

ing Brewster v. Commissioner, 607 F.2d 1369, 1373 (D.C. Cir.

1979)). Since at least the early 1980s, the court has from

time to time used the "Irons footnote" to overrule a prior

decision without a full-blown en banc rehearing. See Irons v.

Diamond, 670 F.2d 265, 268 n. 11 (D.C. Cir. 1981). Under

the Irons footnote procedure a panel decision departing from

precedent is circulated to the full court for endorsement

before issuance and issued with a footnote indicating the

endorsement. Over the years, this court has invoked widely

varying justifications for using the procedure, including to

resolve conflicts in circuit law,1 to expand or limit earlier

decisions,2 to reject "dicta"3 or simply to overrule a decision

__________

1 See, e.g., Irons v. Diamond, 670 F.2d at 268 n. 11; Lorion v.

United States Nuclear Regulatory Comm'n, 712 F.2d 1472, 1479

(D.C. Cir. 1983).

2 See, e.g., Londrigan v. FBI, 722 F.2d 840, 844-45 (D.C. Cir.

1983) (purporting to "add to what was said"); United States v.

Brawner, 32 F.3d 602, 603 (D.C. Cir. 1994) ("limiting the scope").

3 See, e.g., United States Dep't of Navy v. FLRA, 952 F.2d 1434,

deemed incorrect or outdated.4 To impose some order on

Irons footnote use, the court promulgated a "policy state-

ment" in 1996 setting out specific circumstances "for which

the court reaffirm[ed] the propriety of [the footnote's] use,"

among them when "overruling a more recent precedent

which, due to an intervening Supreme Court decision, ... a

panel is convinced is clearly an incorrect statement of current

law." Cf. Chemical Waste Management, Inc. v. United

States Envtl. Agency, 873 F.2d 1477, 1481 (rejecting circuit

precedent presuming that statutory reference to "hearing"

requires formal adjudicatory procedure largely because of

intervening holding in Chevron USA, Inc. v. Natural Re-

sources Defense Council, Inc., 467 U.S. 837, 843 (1984)). As

the majority opinion notes, Maj. Op. at 3, the panel here

explicitly acknowledged that its holding "contradicts our hold-

ing in [United States v. Ortez, 902 F.2d 61, 64 (D.C. Cir.

1990)] that district courts lack authority to consider substan-

tial assistance absent a government motion," In re Sealed

Case, 149 F.3d 1198, 1204 (D.C. Cir. 1998). While it did

discuss, and then reject, Ortez, concluding that "Koon effec-

tively overrules that aspect of Ortez," 149 F.3d at 1204, it did

so with no Irons footnote seeking en banc endorsement

(based presumably on "an intervening Supreme Court deci-

sion" making Ortez "clearly an incorrect statement of current

law"). Had the panel opinion been circulated to the full court

with an Irons footnote, the opinion would not have been

endorsed unanimously as required (as manifested by today's

__________

1439 (D.C. Cir. 1992); Chemical Waste Management, Inc. v. United

States Envtl. Protection Agency, 873 F.2d 1477, 1482 (D.C. Cir.

1989); Melcher v. Federal Open Market Committee, 836 F.2d 561,

563-64 (D.C. Cir. 1987); Center for Science in Pub. Interest v.

Regan, 802 F.2d 518, 524 (D.C. Cir. 1986).

4 See, e.g., Harbor Ins. Co. v. Schnabel Found. Co., Inc., 946 F.2d

930, 936 (D.C. Cir. 1991) ("wrongly decided" opinion); United States

v. Marble, 940 F.2d 1543, 1547 (D.C. Cir. 1991) ("line of cases" that

"ha[d] become a victim of the shifting sands of statute and case

law").

lopsided vote to the contrary) and it could not have issued in

the form it did.5 The fact that we are correcting our course

now does not, and should not, obscure what necessitated the

correction.

Even worse, the panel made no mention of five more

recent circuit opinions (at least two of which the government

expressly relied on, see Panel Brief of Appellee at 7, 34),

which, again as the majority notes, reached the same conclu-

sion as Ortez. See Maj. Op. at 4 & n. 4. See United States v.

Dyce, 91 F.3d 1462, 1469 (D.C. Cir. 1996) ("[T]he Sentencing

Guidelines make specific provision [in U.S.S.G. s 5K1.1] for a

downward departure where a defendant supplies substantial

assistance to the Government, but only where the Govern-

ment certifies to the district court that the help received has

been of sufficient value to warrant the departure.") (emphasis

added); United States v. White, 71 F.3d 920 (D.C. Cir. 1995)

(holding that "in the absence of a government motion the

district court has no authority to depart under section

5K1.1."); United States v. Jones, 58 F.3d 688, 691 (D.C. Cir.

1995) ("[T]he U.S. Attorney enjoys extraordinary power un-

der section 5K1.1 because, by its terms, a motion of the

Government is a prerequisite to the exercise of judicial dis-

cretion to depart below the Guidelines range.") (citation omit-

ted); United States v. Watson, 57 F.3d 1093, 1096-97 (D.C.

Cir. 1995) ("[I]t is well established that a court may not order

a departure on the ground of the defendant's assistance if the

__________

5 I believe our Irons footnote procedure has serious flaws. It has

evolved from an expedient device to reconcile inconsistent circuit

holdings into a summary method of overruling unambiguous circuit

precedent, without any of the safeguards or formalities attending

the en banc process. A three-judge panel determines that full-

court consideration is warranted and non-panel members concur

without benefit of briefing or argument. The resulting decision is

then announced by footnote. Reasoned decisionmaking and stare

decisis call for a more deliberate process. If we wish to change our

precedent, we should invoke the en banc mechanism expressly

authorized for that purpose by the Federal Rules of Appellate

Procedure. See Fed. R. App. P. 35. As long as the Irons footnote

procedure exists, however, the least we should do is follow it. See,

e.g., Byrd v. Reno, No. 99-5070 (D.C. Cir. June 22, 1999).

government does not so move under section 5K1.1.") (citing

Ortez, 902 F.2d at 64); United States v. Doe, 934 F.2d 353,

356-58 (D.C. Cir. 1991) (holding that s 5K1.1's "government

motion requirement" does not violate due process, thereby

"adher[ing] to prior intimations in our own precedent") (citing

Ortez).6 With one sub silentio sweep, the panel reversed this

substantial body of circuit authority. "Stare decisis" means

"to stand by things decided." Bryan A. Garner, A Dictionary

of Modern Legal Usage 515 (1987). Its protection extends to

Ortez as well as the five other cases decided by this court.

__________

6 Nor did the panel note the decision of the United States

Supreme Court, discussed at length in United States v. White, that

stated: "[The petitioner's] position is consistent with the view,

which we think is clearly correct, that in both [18 U.S.C.] s 3553(e)

and s 5K1.1 the condition limiting the court's authority gives the

Government a power, not a duty, to file a motion when a defendant

has substantially assisted." Wade v. United States, 504 U.S. 181,

185 (1992).