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
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 prosecution of another person who has committed an offense, the court may depart from the guidelines.’ ” Maj. Op. at 131. As the court’s opinion suggests, the venerable canon of construction expressio unius est exelusio alterius, that is, “the mention 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 Assistance 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 *145 one thing’ would have likely considered the alternatives that are arguably precluded.” Id. After examining the relevant guideline language and the context in which it was adopted, I conclude that a normal draftsman providing for departure upon government motion would have likely considered the alternative — 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 , 131 L.Ed.2d 1 (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 Commission’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 include the phrase “upon motion of the government” in the guideline at all? Appellant not having supplied any satisfactory 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.