UNITED STATES COURT OF APPEALS FOR THE D.C. CIRCUIT


IN RE: SEALED CASE


97-3112b

D.C. Cir. 1999


*	*	*


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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n 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-




__________

n 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


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 




__________

n 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. 




__________

n 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




__________

n 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.


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-




__________

n 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


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 




__________

n 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 


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. 




__________

n 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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n 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


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 




__________

n 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 


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


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.


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


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




__________

n 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" 




__________

n ... 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


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


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 




__________

n 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 




__________

n 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-


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 




__________

n 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




__________

n 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 




__________

n 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 




__________

n 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


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




__________

n 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.




__________

n 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


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


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


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


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




__________

n 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 




__________

n 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




__________

n 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.




__________

n 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