noting that § 3553(e) and 35(b) were enacted together as part of the Anti-Drug Abuse Act of 1986, and further noting that "it is thus apparent that in drafting section 5K1.1 the [Sentencing] Commission intended that section to be read in pari materia with 18 U.S.C. § 3553(e) and Rule 35(b)”
How later courts described this case
- noting that § 3553(e) and 35(b) were enacted together as part of the Anti-Drug Abuse Act of 1986, and further noting that "it is thus apparent that in drafting section 5K1.1 the [Sentencing] Commission intended that section to be read in pari materia with 18 U.S.C. § 3553(e) and Rule 35(b)”
- stating that the “process of evaluating the extent and significance of a defendant’s ‘assistance in the investigation or prosecution of another person’ ” is the prosecutor’s decision
- rejecting a similar invitation by a defendant to parse the factor at issue under U.S.S.G. 5K1.1, and concluding that "the appropriate characterization of the factor is ... 'Substantial Assistance to Authorities,' simpliciter"
- applying the “legal maxim expressio unius est exclusio alterius (‘the mention of one thing implies the exclusion of another’),” while noting that it “is not always correct”
Written by the judges who cited it.
The opinion
EDWARDS, Chief Judge, and TATEL, Circuit Judge,
concurring:
We originally viewed this case as turning on the difference between two distinct departure factors — substantial assistance with a government motion versus sub *143 stantial 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 characterized 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 132.
We continue to believe, however, that courts must exercise particular caution before concluding that the Commission actually has chosen to limit district judges’ traditional sentencing 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 Commission has limited traditional judicial sentencing discretion. As the Commission itself has recognized, the Guidelines were never intended to remain static; to the contrary, the Commission’s ability continually to monitor an evolving federal sentencing common law is central to its goal of refining and improving the Guidelines over time. See U.S.S.G. Ch.l, 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 “disregarding] our established [Irons footnote] procedure and, far worse, failing] to honor the bedrock principle of stare decisis.” Henderson Op. at 145 — 46. 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 , 116 S.Ct. 2035 , 135 L.Ed.2d 392 (1996), effectively overruled 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 endorsement before ruling that an intervening Supreme Court decision 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 Decisions 2-3 (Jan. 17, 1996) (emphasis added); see also Dellums v. United States Nuclear Regulatory Comm’n, 863 F.2d 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 *144 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 footnote 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 deciding that a circuit precedent is no longer good law. Indeed, just last month a panel of this court comprised of Judges Ginsburg, Sen-telle, and Randolph held, also without using an Irons footnote, that an otherwise controlling circuit precedent had been superseded by an intervening Supreme Court decision. See Kooritzky v. Herman, 178 F.3d 1315 (D.C.Cir.1999). Again, the fact that the panel’s interpretation of an intervening Supreme Court decision 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 147. 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). Furthermore, pursuant to this court’s rules, the opinion was circulated 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.