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No.95-5661. Argued February 27, 1996-Decided June 17, 1996

Mter agreeing with others to buy cocaine, petitioner was charged with a conspiracy violative of 21 U. S. C. § 846, which carries a statutory minimum sentence of 10 years' imprisonment. He ultimately signed a plea agreement providing, inter alia, that in return for his cooperation with the Government's investigation and his guilty plea, the Government would move the sentencing court, pursuant to § 5K1.1 of the United States Sentencing Guidelines, to depart downward from the otherwise applicable Guideline sentencing range, which turned out to be 135 to 168 months' imprisonment. Although the agreement noted the applicability of the 1O-year statutory minimum sentence, neither it nor the ensuing § 5K1.1 motion mentioned departure below that minimum. Pursuant to the motion, the District Court departed downward from the Guideline range in sentencing petitioner. It also ruled, however, that it had no authority to depart below the statutory minimum because the Government had not made a motion, pursuant to 18 U. S. C. § 3553(e), that it do so. It thus sentenced petitioner to 10 years, and the Third Circuit affirmed.

Held: A Government motion attesting to the defendant's substantial assistance in a criminal investigation and requesting that the district court depart below the minimum of the applicable Guideline sentencing range does not also authorize the court to depart below a lower statutory minimum sentence. Pp. 124-131.

(a) Guideline § 5K1.1 does not create a "unitary" motion system.

Title 18 U. S. C. § 3553(e) requires a Government motion requesting or authorizing the district court to "impose a sentence below a level established by statute as minimum sentence" before the court may impose such a sentence. Nothing in §3553(e) suggests that a district court has the power to impose such a sentence when the Government has not authorized it, but has instead moved for a departure only from the applicable Guidelines range. Nor does anything in §3553(e) or 28 U. S. C. § 994(n) suggest that the Commission itself may dispense with § 3553(e)'s motion requirement or, alternatively, "deem" a motion requesting or authorizing different action-such as a departure below the Guidelines minimum-to be a motion authorizing departure below the statutory minimum. Section 5K1.1 cannot be read as attempting to exercise this nonexistent authority. That section states that "[u]pon motion of the


government ... the court may depart from the guidelines," while its Application Note 1 declares that "[u]nder circumstances set forth in ... § 3553(e) and ... § 994(n) ... substantial assistance ... may justify a sentence below a statutorily required minimum sentence." One of the circumstances set forth in §3553(e) is that the Government has authorized the court to impose such a sentence. The Government is correct that the relevant statutory provisions merely charge the Commission with constraining the district court's discretion in choosing a specific sentence once the Government has moved for a departure below the statutory minimum, not with "implementing" §3553(e)'s motion requirement, and that § 5K1.1 does not improperly attempt to dispense with or modify that requirement. Pp. 124-130.

(b) For two reasons, the Court need not decide whether the Government is correct in reading § 994(n) to permit the Commission to construct a unitary motion system by providing that the district court may depart below the Guidelines range only when the Government is willing to authorize the court to depart below the statutory minimum, if the court finds that to be appropriate. First, even if the Commission had done so, that would not help petitioner, since the Government has not authorized a departure below the statutory minimum here. Second, the Commission has not adopted this type of unitary system. Pp. 130-131.

55 F.3d 130, affirmed.

THOMAS, J., delivered the opinion of the Court, in which REHNQUIST, C.J., and SCALIA, KENNEDY, SOUTER, and GINSBURG, JJ., joined, and in which O'CONNOR and BREYER, JJ., joined as to Parts I and II. SOUTER, J., filed a concurring opinion, post, p. 131. STEVENS, J., filed an opinion concurring in the judgment, post, p. 132. BREYER, J., filed an opinion concurring in part and dissenting in part, in which O'CONNOR, J., joined, post, p. 132.

Patrick A. Mullin argued the cause for petitioner. With him on the briefs were David Zlotnick and Peter Go ldberger.

Irving L. Gornstein argued the cause for the United States. With him on the brief were Solicitor General Days, Acting Assistant Attorney General Keeney, and Deputy Solicitor General Dreeben. *

* Alan I. Horowitz, James R. Lovelace, and Barbara E. Bergman filed a brief for the National Association of Criminal Defense Lawyers as amicus curiae urging reversal.

Chester M. Keller filed a brief for the Association of Criminal Defense Lawyers in New Jersey as amicus curiae.

Full Text of Opinion

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