The opinion
MERRITT, Circuit Judge,
concurring.
I concur in Judge White’s opinion, but I would hope on remand that the government will reassess its decision — not subject to judicial review — to invoke the 10-year mandatory minimum in this non-violent marijuana case. The punishment seems unduly harsh. If given the benefit of Offense Level 32 minus 3 Levels, as promised in the plea agreement, the sentence would be more reasonable. Apparently, this cannot be done without a § 5K1.1 motion. The Department of Justice should give some eonsidei’ation to the possibility of rehabilitation in this case, as well as to the enormous expense to the taxpayer imposed by mandatory minimum sentences in non-violent marijuana cases, a drug that some states have now legalized. The present law effectively makes the prosecutor the sentencer in these cases, and so the prosecutor should not view .the case simply as an adversary but take the broader view using the great power of the Department of Justice to see that justice is done. It should take the opportunity to use the tools at hand — here, a 5K1.1 motion — to see that unreviewable, excessive, un-individualized mandatory minimum sentences are not imposed.