United States v. Ronald Leland Kelley, United States of America v. Rodney Ray Jiruska

956 F.2d 748, 1992 U.S. App. LEXIS 1445, 1992 WL 17462

Opinions

JOHN R. GIBSON, Circuit Judge,

joined by FAGG, BOWMAN, WOLLMAN, MAGILL and LOKEN, Circuit Judges.

We again visit the question of whether a district court can grant a downward departure from the Sentencing Guidelines for the defendant’s substantial assistance to the government in the absence of either: (1) a government motion for a departure; or (2) a claim that the government’s refusal to make such a motion is arbitrary, in bad faith, or in breach of a plea agreement. We have touched on this question in a series of cases,¹ including United States v. Gutierrez, 908 F.2d 349 (8th Cir.1990), which we vacated for rehearing en banc. In Gutierrez, the en banc court affirmed the district court by an equally divided vote, thereby leaving the question for another day. 917 F.2d 379 (8th Cir.1990). The cases we decide today present the question in an unusually narrow form, since the appellants forego constitutional arguments and simply urge that we are not bound to follow United States Sentencing Commission, Guidelines Manual § 5K1.1 (Nov. 1991) because it is a policy statement rather than a guideline. We affirm the district court’s² judgment holding that it did not have the power to depart from the guidelines sentencing range in these cases.

Ronald Kelley and Rodney Jiruska pleaded guilty to involvement in a drug conspiracy, 21 U.S.C. § 846 (1988). Both entered plea agreements in which they agreed to assist the government in convicting co-defendants, but the government retained sole discretion concerning whether to move the court under U.S.S.G. section 5K1.1 to grant a downward departure for substantial assistance. Kelley and Jiruska made themselves available for interviews with investigators and testified at the trials of other defendants. The government attorneys stated that Jiruska was a truthful witness, but declined to move the court to depart from the guidelines, explaining that the government did not perceive Jiruska’s testimony to be particularly valuable. The government attorneys were not satisfied with the candor of Kelley’s testimony, since they claimed he understated the extent of the conspirators’ criminal activity at his co-defendants’ trials in comparison with his earlier statements. Moreover, while on pretrial release, Kelley attended a party at which a Mr. Melsha gave him cocaine, which Kelley said he flushed down a toilet. When he reported this to the government, the prosecutors asked him to wear a wire and engage Melsha in a conversation regarding the incident. Though Kelley did as requested, that investigation led the government to believe Kelley had paid for the cocaine and perhaps had used it. Due to his lack of candor and the fact that the prosecutors did not view Kelley’s cooperation as particularly helpful, the government refused to make a departure motion. Since the government refused to make the motion, Kelley and Jiruska each moved the court for a downward departure. They each conceded that there was no bad faith issue. The court held that it was powerless to grant a departure for substantial assistance in absence of a government mo tion. The court did take the defendants’ cooperation into account in choosing a sentence within the guidelines range.

Kelley and Jiruska appeal, arguing that the district court erred in holding that without a government motion it could not depart from the guidelines range on the grounds of assistance to the government. Because the issues they raise were the subject of a stalemate in Gutierrez, we granted original hearing en banc to address their arguments.

I.

Since our first look at the issue in United States v. Justice, 877 F.2d 664 (8th Cir.), cert. denied, 493 U.S. 958, 110 S.Ct. 375, 107 L.Ed.2d 360 (1989), this circuit has been troubled by the issue of whether U.S.S.6. § 5K1.1 permits a court to depart downward from the guidelines range on the grounds of substantial assistance to the government if the government refuses to move for a departure. Our standard of review is de novo, because the district court’s decision that it had no power to depart is a pure question of law. 18 U.S.C. § 3742(a)(1) (1988); United States v. Doe, 934 F.2d 353, 356 (D.C.Cir.), cert. denied, — U.S. -, 112 S.Ct. 268, 116 L.Ed.2d 221 (1991). Though the government argues that this case presents an unreviewable refusal to depart, the real question is whether the district court was correct in its opinion that it had no power to depart, not whether it would have chosen to depart if it had the power.

Section 5K1.1 provides: “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_” (emphasis added). The section is labeled as a “policy statement,” rather than a guideline.³

Kelley and Jiruska argue that because section 5K1.1 is a policy statement, rather than a guideline, it is not binding on the courts and therefore the courts can reject it on policy grounds.

We have considered U.S.S.G. § 5K1.1 in depth in earlier decisions and resolved certain preliminary questions about the section which Kelley and Jiruska do not re-argue. In Justice, 877 F.2d at 667, we held that the language permitting departure “upon motion of the government” makes the prosecutor’s motion a prerequisite to departure. Most of the other circuits have also held that under section 5K1.1, the prosecutor’s motion is a necessary step for a substantial assistance departure. United States v. La Guardia, 902 F.2d 1010, 1013-18 (1st Cir.1990); United States v. Huerta, 878 F.2d 89, 91 (2d Cir.1989), cert. denied, 493 U.S. 1046, 107 L.Ed.2d 839 (1990); United States v. Bruno, 897 F.2d 691, 696 (3d Cir.1990); United States v. Francois, 889 F.2d 1341, 1345 (4th Cir.1989), cert. denied, 494 U.S. 1085, 110 S.Ct. 1822, 108 L.Ed.2d 951 (1990); United States v. Levy, 904 F.2d 1026, 1035-36 (6th Cir.1990), cert. denied, — U.S. -, 111 S.Ct. 974, 112 L.Ed.2d 1060 (1991); United States v. Donatiu, 922 F.2d 1331, 1334-35 (7th Cir.1991); United States v. Vargas, 925 F.2d 1260, 1267 (10th Cir.1991); United States v. Chotas, 913 F.2d 897, 900 (11th Cir.1990), cert. denied, — U.S.-, 111 S.Ct. 1421, 113 L.Ed.2d 473 (1991); United States v. Doe, 934 F.2d at 361. However, the Fifth Circuit does not view the section as requiring a prosecutor’s motion. United States v. White, 869 F.2d 822, 829 (5th Cir.) (per curiam), cert. denied, 490 U.S. 1112, 109 S.Ct. 3172, 104 L.Ed.2d 1033 (1989). Cf. United States v. Keene, 933 F.2d 711, 715 n. 5 (9th Cir.1991) (characterizing issue of whether sua sponte departure could ever be appropriate as undecided in Ninth Circuit); Chotas, 913 F.2d at 903 (dissent arguing that government motion not intended as “absolute prerequisite” to departure).⁴

In Justice, we also stated that the court cannot avoid the prerequisite of the prosecutor’s motion by simply departing under another guideline section to reward the assistance. 877 F.2d at 666. 18 U.S.S.G. § 3553(b) (1988) and U.S.S.G. § 5K2.0 (Policy Statement) permit the court to depart if the case involves a relevant factor that the Sentencing Commission did not adequately take into account in formulating the guidelines. In Justice, we held that the Commission took substantial assistance into account by adopting section 5K1.1 and that therefore 18 U.S.S.G. § 3553(b) would not authorize departure on this ground. 877 F.2d at 666. Accord United States v. Khan, 920 F.2d 1100, 1107 (2d Cir.1990), cert. denied, — U.S.-, 111 S.Ct. 1606, 113 L.Ed.2d 669 (1991); United States v. Agu, 949 F.2d 63, 65-66 (2d Cir.1991); Chotas, 913 F.2d at 900.⁵

We have also approved generally the constitutionality of the prosecutor’s motion requirement, while noting that situations could arise in which the motion requirement together with other facts could be part of a constitutional violation. We have held that the motion requirement is not an unconstitutional infringement on the separation of powers. Grant, 886 F.2d at 1514. Accord United States v. Spillman, 924 F.2d 721, 724-25 (7th Cir.1991); Huerta, 878 F.2d at 91-93 (section 3553(e)); United States v. Musser, 856 F.2d 1484, 1487 & n. 3 (11th Cir.1988), cert. denied, 489 U.S. 1022, 109 S.Ct. 1145, 103 L.Ed.2d 205 (1989); United States v. Kuntz, 908 F.2d 655, 657 (10th Cir.1990). We have also rejected the substantive due process argument that defendants have a right to have a court consider evidence of their cooperation in deciding whether to depart. Grant, 886 F.2d at 1514. Accord La Guardia, 902 F.2d at 1015-16; Doe, 934 F.2d at 357; Levy, 904 F.2d at 1035-36. Other circuits have similarly rejected procedural due process challenges. E.g., Doe, 934 F.2d at 360-61; Donatiu, 922 F.2d at 1333-34. However, we and other circuits have suggested constitutional limits to the prosecutor’s discretion under section 5K1.1. Courts have pointed out that if the prosecutor acted from invidious motives or to punish the exercise of constitutional rights, there could be a constitutional violation, United States v. Bayles, 923 F.2d 70, 72 (7th Cir.1991); Doe, 934 F.2d at 361, and our own cases have suggested that prose-cutorial misconduct, including “arbitrary” failure to make the motion, could amount to a due process violation. E.g., United States v. Coleman, 895 F.2d 501, 504 n. 6 (8th Cir.1990). But see United States v. Smith, 953 F.2d 1060 (7th Cir.1992). Cf. United States v. Drown, 942 F.2d 55 (1st Cir.1991) (remanding for resentencing in case in which prosecutor’s failure to make motion was based on misapprehension of the relationship between section 5K1.1 and Fed.R.Crim.P. 35(b)).

Kelley and Jiruska do not urge us to reconsider these issues settled in our earlier cases, but instead argue that the language requiring the courts to sentence according to the guidelines, 18 U.S.C. § 3553(b), does not include the policy statements and that therefore the courts are not bound to follow the policy statements.⁶

Congress has made it clear that it intends the policy statements to be taken seriously. The statutes defining the Commission’s duties authorize it to promulgate guidelines and general policy statements. 28 U.S.C. § 994(a)(1), (2) and (3) (1988). 18 U.S.C. § 3553 (1988) requires in a number of passages that the court consider the policy statements in imposing a sentence. The court shall consider both “the kinds of sentence and the sentencing range” set forth in the guidelines, 18 U.S.C. § 3553(a)(4) (1988), and “any pertinent policy statement issued by the Sentencing Commission_” 18 U.S.C. § 3553(a)(5). The same statute provides that a sentence shall be imposed under the guidelines unless the court finds that an aggravating or mitigating circumstance has not been adequately taken into consideration by the Commission in formulating the guidelines, and in so determining “the court shall consider only the sentencing guidelines, policy statements, and official commentary of the Sentencing Commission” 18 U.S.C. § 3553(b) (emphasis added). Further, in the absence of applicable guidelines the court shall consider the relationship of the sentence to guideline sentences applicable to similar offenses and offenders “and to the applicable policy statements of the Sentencing Commission.” 18 U.S.C. § 3553(b). The final subsection dealing with the requirement of a motion by the government to impose sentences below the mandatory minimum states: “Such sentence shall be imposed in accordance with the guidelines and policy statements_” 18 U.S.C. § 3553(e).

Other more specific statutes require consideration of the guidelines. For instance, 18 U.S.C. § 3582(a) (1988) requires that the court “shall consider any pertinent policy statements” in determining whether to recommend an appropriate type of prison facility. The court may modify a term of imprisonment upon motion by the Director of the Bureau of Prisons after considering the factors set forth in section 3553(a) (which, as we have seen, includes policy statements) if it finds extraordinary and compelling reasons warrant a reduction and that such reduction is “consistent with applicable policy statements” of the Commission. 18 U.S.C. § 3582(c)(1)(A) (1988). If a sentencing range has been lowered by the Commission, the district court may reduce the term “if such reduction is consistent with applicable policy statements.” 18 U.S.C. § 3582(c)(2) (1988). Further, the court may order conditions of supervised release “consistent with any pertinent policy statements” issued by the Commission. 18 U.S.C. § 3583(d)(3) (1988).

These statutes, with their frequent use of mandatory language, all evidence congressional intent that policy statements be considered and that the courts’ actions be consistent with policy statements. There is, on the other hand, the statutory requirement that amendments to the guidelines, but not to the policy statements, be submitted to Congress as part of the amendment process. See 28 U.S.C. § 994(p) (1988). We simply do not believe that this provision undermines the authority elsewhere given to the policy statements. In any case, the policy statement at issue here was in fact submitted to Congress, along with the guidelines, see United States Sentencing Commission, Sentencing Guidelines and Policy Statement 5.29 (1987); U.S.S.G.App. C. (amendment no. 290); United States Sentencing Commission, 1989 Annual Report 19, thereby giving Congress the same chance to disapprove the policy statement as it had to disapprove guidelines. See 28 U.S.C. § 994(p) (1988).

Kelley and Jiruska argue that language of the Sentencing Commission shows that it considered the policy statements “nonbinding”. They point to U.S.S.G. § 1B1.7 in which the Commission states: “As with a 'policy statement, such commentary may provide guidance in assessing the reasonableness of any departure from the guidelines” (emphasis added). They also rely on U.S.S.G. Ch. 1, Pt. A, intro. 4(b) (Policy Statement) which refers to the grounds for departure listed in Ch. 5, Part K (which are denominated as “policy statements”) as “suggested” grounds. The use of the words “may” and “suggest” in these contexts does not give the courts authority to ignore the commentary and policy statements — rather, by using these words the Commission simply acknowledges that in any given case the policy statements and commentary may not, by their own terms, be relevant or determinative. See, e.g., U.S.S.G. § 2A1.1 (1990) (comment, n. 1) (“If the defendant did not cause the death intentionally or knowingly, a downward departure may be warranted”).

It is obvious that, as Kelley and Jiruska argue, there is significance in what material is designated as guidelines and what material is designated as policy statements accompanying the guidelines. Congress instituted the distinction between the two forms of authority in 28 U.S.C. § 994(a)(1) and (2), which designate different subject matters to be dealt with by guideline and policy statements, respectively. Congress enacted no statutory provision explaining the difference in authority between guidelines and policy statements, but there is an illuminating comment in the legislative history. In a discussion concerning 18 U.S.C. § 3742, which provides for appeal in the event a sentence is imposed “as a result of an incorrect application of the sentencing guidelines,” the Senate Report stated:

It should be noted that a sentence that is inconsistent with the sentencing guidelines is subject to appellate review, while one that is consistent with guidelines but inconsistent with the policy statements is not.⁷ This is not intended to undermine the value of the policy statements. It is, instead, a recognition that the policy statements may be more general in nature than the guidelines and thus more difficult to use in determining the right to appellate review. Nevertheless, the sentencing judge is required to take the policy statements into account in deciding what sentence to impose and it is expected that the policy statements will be consulted at all stages of the criminal justice system, including the appellate courts, in evaluating the appropriateness of the sentence and corrections program applied to a particular case.

S.Rep. No. 225, 98th Cong., 2d Sess. 167-68 (1984), reprinted in 1984 U.S.C.C.A.N. 3182, 3350 (footnotes omitted). This excerpt confirms the idea that the distinction between policy statements and guidelines is a meaningful one. It indicates that it is the relative specificity and generality of the provisions that distinguishes material to be included in a policy statement from that to be included in guidelines. The language in the Senate Report referring to policy statements is indeed language of guidance, not of command, because the policy statements are not a code and are not meant to be applied as a code. Similarly, as Judge Hea-ney’s dissent points out, infra at 36, Congress only required the courts to “consider ” the policy statements, but to “impose a sentence of the kind, and within the range” of the guidelines. 18 U.S.C. § 3553(a) & (b). Congress’ use of the word “consider” does not mean that the courts can reject the policy statements if they please, but only shows that Congress anticipated that the more general material to be included in a policy statement would frequently be of a nature to illuminate, though not necessarily determine, the proper outcome.

This said, what conclusion do we then draw concerning the defendants’ argu ments that we need not follow Policy Statement section 5K1.1? The statements in the legislative history might support arguments that a certain policy statement is too general to follow or was not drafted to foresee special eventualities relevant in a particular case. For instance, the general nature of policy statements would support an argument that section 5K1.1 simply does not deal with a situation in which the prosecutor breaches a plea agreement or in which reasonable minds could not differ on the extent and value of the defendant’s assistance.

This and other circuits have dealt with the question of whether section 5K1.1 was intended to apply to all possible fact situations or whether it may well be too general to govern certain atypical cases. The answer depends on the purpose of the motion requirement. Some circuits have seen the purpose of the motion requirement as giving the prosecutor a powerful law enforcement tool, which could be undermined by judicial interference in the prosecutor’s decision to move or withhold the motion. For instance, the Fourth Circuit views the provision as forcing a defendant who wants a departure to secure that relief by means of a plea agreement, rather than resort to the court. By these lights, the only implicit limits on the government’s discretion are to make the motion if it has promised to make it, and the court will intervene only if the government breaches a plea agreement. See United States v. Raynor, 939 F.2d 191, 195 (4th Cir.1991); United States v. Wade, 936 F.2d 169, 172 (4th Cir.1991), cert. granted, — U.S.-, 112 S.Ct. 635, 116 L.Ed.2d 653 (1991). See also United States v. Gonzales, 927 F.2d 139, 145-46 n. 5 (3d Cir.1991) (reserving question of whether court would intervene if defendant claimed breach of plea agreement). Other circuits, including ours, place less emphasis on section 5K1.1 as a prosecutorial tool and view U.S.S.G. § 5K1.1 as providing a just reward for a cooperative defendant. These courts reason that the prosecutor’s motion requirement is simply a device to promote administrative efficiency by putting the first decision about the extent of the defendant’s cooperation in the hands of the prosecutor, who is in the best position to evaluate that cooperation. E.g., Grant, 886 F.2d at 1514. The section 5K1.1 device depends on institutional incentives, which provide a check on the prosecutor’s discretion, in that prosecutors must treat defendants fairly for fear of discouraging future defendants from cooperating. See, e.g., Huerta, 878 F.2d at 93. However, if section 5K1.1 is viewed as establishing a reward for cooperation, the defendant can argue that if the government fails to make the requisite motion in a case in which reasonable minds could not differ about the substantiality and value of the assistance, there has been a failure of the section 5K1.1 mechanism that should be corrected by the courts. The possibility of an exception to the prosecutor’s motion requirement in an “egregious case” is suggested in our cases. E.g., Justice, 877 F.2d at 668-69. Our Coleman case, 895 F.2d at 504 n. 6, suggests that an egregious case might present due process concerns obviating the prosecutor’s motion requirement. Other circuits have also suggested that there is an implicit limit on the prosecutor’s discretion to withhold the motions in an extremely clear cut-case. See, e.g., United States v. Mena, 925 F.2d 354, 355-56 (9th Cir.1991); Vargas, 925 F.2d at 1267; see also Chotas, 913 F.2d at 901 (notes argument but says not an issue in case at bar).

Here, the defendants do not argue that their cases present peculiar facts that take them out of the intendment of section 5K1.1. Kelley and Jiruska have explicitly conceded that there is no question of prose-cutorial misconduct in their cases. Nor do they argue that the prosecution used its discretion to withhold the motion in any other way not envisioned by the Commission. Kelley and Jiruska’s argument seems to be that the court can reject the “suggestions” of the policy statement, not because the policy statement was never intended to apply to their cases, but because the approach adopted by the Sentencing Commission was simply not the best way to handle the problem at hand. Nothing could be more contrary to Congress’ intent in providing for the Sentencing Guidelines than to permit the courts to second-guess the Commission in that way.

Consistency of application in sentencing law was a paramount goal in establishing the Sentencing Commission and in providing for the Sentencing Guidelines, as reflected in 28 U.S.C. § 991(b)(1)(B) (1988) and myriad statements in the legislative history. E.g., S.Rep. No. 225, 98th Cong., 2d Sess. 38, 41-46, 52 (1984), reprinted in 1984 U.S.C.C.A.N. 3221, 3224-29, 3235; Burns v. United States, — U.S.-, 111 S.Ct. 2182, 115 L.Ed.2d 123 (1991); La Guardia, 902 F.2d at 1014. For us to hold that courts could refuse to follow the policy statements in a case in which the meaning of the policy statement is clear and undoubtedly applicable to the facts of the case would be to introduce the most far-ranging element of uncertainty into the application of the Guidelines. A significant number of crucial issues are dealt with only by policy statement {see, e.g., U.S.S.G. §§ 5H1.1-5H1.10, dealing with the proper consideration of age, educational and vocational skills, mental and emotional state, etc., by policy statement rather than guideline), and a ruling that courts could reject a legitimate policy statement merely because they disagree with it would leave these areas essentially unregulated.

Moreover, such a holding would spill over into the related area of guideline commentary, which would also have to be characterized as “non-binding” under Kelley and Jiruska’s theory. Guideline § 1B1.7⁸ outlines the functions the commentary may perform, including that of “suggesting” departures from the guidelines. Section 1B1.7 specifically notes that commentary governing departures “is to be treated as the legal equivalent of a policy statement.” Many of the guidelines are skeletal provisions for which the commentary provides crucial supplementation. For instance, U.S.S.G. § 1B1.1 comment, (n. 1) gives definitions of key terms used in the guidelines in the commentary, rather than in the guideline itself. This circuit recognized the importance of the commentary when it adopted a reading of a guideline which was mandated by the commentary, though not by the guideline read alone. United States v. Smeathers, 884 F.2d 363, 364 (8th Cir.1989) (per curiam).

The Ninth Circuit discussed the authoritativeness of guidelines commentary in its recent en banc opinion, United States v. Anderson, 942 F.2d 606 (9th Cir.1991). The Anderson case involved commentary used to explain or interpret guidelines. At 612; see U.S.S.G. § 1B1.7. The Ninth Circuit held that such commentary must always be consulted and followed, unless the commentary actually conflicts with a guideline. Id. at 612-14.

Other circuits considering the question raised in Anderson have concluded that “courts cannot ignore the Commentary”, United States v. DeCicco, 899 F.2d 1531, 1537 (7th Cir.1990), and have applied as law an element appearing only in the commentary, and not in the guideline itself. Id.; accord United States v. Bierley, 922 F.2d 1061, 1066 (3d Cir.1990). See also United States v. Rutter, 897 F.2d 1558, 1561 (10th Cir.), cert. denied, — U.S.-, 111 S.Ct. 88, 112 L.Ed.2d 60 (1990). These holdings recognizing the obligation to follow the commentary would logically compel the conclusion that courts similarly must follow valid policy statements; conversely, a holding that the courts could reject policy statements at will would also affect application of the commentary, throwing the whole guidelines system into disarray and uncertainty.

Thus, a holding today that the courts can disregard the prosecutor’s motion requirement in U.S.S.G. § 5K1.1 because they consider it ill-advised would seriously damage the efficiency of the Sentencing Guidelines in bringing about the consistency Congress sought. We decline to inflict this damage, and therefore reject the defendants’ argument that section 5K1.1 is not binding.

II.

Finally, there is one unelaborated statement in Jiruska’s original brief that 28 U.S.C. § 994(n) (1988)⁹ does not “require a motion on the part of the government as a prerequisite to the Court’s taking into account a defendant’s substantial assistance.” Jiruska’s counsel also made a comment at oral argument that the Commission “perhaps overreached” in adopting section 5K1.1. These cryptic comments do not add up to a Chevron ¹⁰-type argument that section 5K1.1 is not a reasonable interpretation of section 994(n). However, if Jiruska has indeed attempted to raise the Chevron issue in this case, we would respond as we did in Grant, 886 F.2d at 1514, that the similarity between U.S.S.G. § 5K1.1 and 18 U.S.C. § 3553(e) persuades us that the Commission acted reasonably and permissibly. Accord Doe, 934 F.2d at 359-60.¹¹

In sum, the district court did not err in holding that it could not entertain a substantial assistance departure motion made by the defendant rather than the government.

We affirm.

Footnotes

1

. United States v. Justice, 877 F.2d 664 (8th Cir.), cert. denied, 493 U.S. 958, 110 S.Ct. 375, 107 L.Ed.2d 360 (1989); United States v. Grant, 886 F.2d 1513 (8th Cir.1989); United States v. Smitherman, 889 F.2d 189, 191 (8th Cir.1989), cert. denied, 494 U.S. 1036, 110 S.Ct. 1493, 108 L.Ed.2d 629 (1990); United States v. Coleman, 895 F.2d 501, 504 & n. 6 (8th Cir.1990); United States v. Dobynes, 905 F.2d 1192, 1197 (8th Cir.), cert. denied, — U.S. -, 111 S.Ct. 206, 112 L.Ed.2d 167 (1990); United States v. Oransky, 908 F.2d 307 (8th Cir.1990); United States v. Gutierrez, 917 F.2d 379 (8th Cir.1990) (en banc) (affirming district court by equally divided vote); United States v. Spees, 911 F.2d 126, 128 (8th Cir.1990) (per curiam); United States v. Hill, 911 F.2d 129, 131 (8th Cir.1990) (per cu-riam), vacated and remanded for further consideration on other grounds, — U.S.-, 111 S.Ct. 2845, 115 L.Ed.2d 1014 (1991); United States v. Hubers, 938 F.2d 827 (8th Cir.1991) (per curiam), cert. denied, — U.S.-, 112 S.Ct. 427, 116 L.Ed.2d 447 (1991); United States v. Drake, 942 F.2d 517 (8th Cir.1991) (per curiam); United States v. Laird, 948 F.2d 444 (8th Cir.1991).

2

. The Honorable David R. Hansen, United States District Judge for the Northern District of Iowa. After this case was argued en banc. Judge Hansen was nominated to be a judge of this court, was confirmed by the Senate and assumed his position on December 2, 1991. Needless to say, Judge Hansen has not participated in the consideration of this case.

3

. 18 U.S.C. § 3553(e) (1988) is a parallel provision dealing with departing below a statutory minimum sentence for substantial assistance:

Limited authority to Impose a sentence below a statutory minimum. — 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 defendant’s substantial assistance in the investigation or prosecution of another person who has committed an offense. Such sentence shall be imposed in accordance with the guidelines and policy statements issued by the Sentencing Commission pursuant to section 994 of title 28, United States Code.

4

. The Sentencing Commission has recently published for comment a proposed amendment to section 5K1.1 that would eliminate the prosecutor’s motion requirement. See 57 Fed.Reg. 90, 112 (Jan. 2, 1992).

5

. The Second Circuit has recently rejected the argument that sections 3553(b) and 5K2.0 permit the courts to avoid the section 5K1.1 motion requirement based upon substantial assistance in the investigation or prosecution of another person. It discusses the distinction between the two guidelines, particularly pointing to the language in section 5K2.0 that it applies where there is a mitigating circumstance not taken into consideration by the guidelines. Agu, 949 F.2d at 67. Judge Beam’s dissent is based upon the availability of the procedure in section 5K2.0 to depart without a government motion. The parties to this case have not raised this issue. Agu pointed to the availability of a section 5K2.0 departure for cooperation in some circumstances. Agu observed that section 5K1.1 refers to cooperation with the prosecution, whereas section 5K2.0 could be the basis for a departure on the grounds of cooperation with the courts, and may apply in cases in which the cooperation was of a different nature than cooperation in prosecuting others (e.g., cooperation in saving the life of an informant). But see United States v. Romolo, 937 F.2d 20, 25 (1st Cir.1991) (it is theoretically possible for a prosecutor's refusal to make a U.S.S.G. § 5K1.1 motion to become a circumstance warranting departure under U.S.S.G. § 5K2.0). See also United States v. Goroza, 941 F.2d 905, 909 (9th Cir.1991). These issues involving section 5K2.0 are simply not before us in this case.

6

. The Second Circuit recently rejected this argument without discussion. Agu, 949 F.2d at 66-67. The Seventh Circuit rejected a similar argument — that "by writing [section 5K1.1 as] a policy statement rather than a guideline the Commission has signalled that it does not think its treatment definitive." United States v. Smith, 953 F.2d 1060, 1063 (7th Cir.1992).

7

. This would not preclude appeal in our case since Kelly and Jiruska are arguing that the court erred in ascertaining the law — not in failing to follow a policy statement, but in mistaking the effect to be given to a policy statement.

8

. § 1B1.7. Significance of Commentary

The Commentary that accompanies the guideline sections may serve a number of purposes. First, it may interpret the guideline or explain how it is to be applied. Failure to follow such commentary could constitute an incorrect application of the guidelines, subjecting the sentence to possible reversal on appeal. See 18 U.S.C. § 3742. Second, the commentary may suggest circumstances which, in the view of the Commission, may warrant departure from the guidelines. Such commentary is to be treated as the legal equivalent of a policy statement. Finally, the commentary may provide background information, including factors considered in promulgating the guideline or reasons underlying promulgation of the guideline. As with a policy statement, such commentary may provide guidance in assessing the reasonableness of any departure from the guidelines.

9

. 28 U.S.C. § 994(n) provides:

The Commission shall assure that the guidelines reflect the general appropriateness of imposing a lower sentence than would otherwise be imposed, including a sentence that is lower than that established by statute as a minimum sentence, to take into account a defendant’s substantial assistance in the investigation or prosecution of another person who has committed an offense.

10

. Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-45, 104 S.Ct. 2778, 2781-83, 81 L.Ed.2d 694 (1984).

11

. Judge Heaney’s dissent argues that section 5K1.1 “runs counter to congressional directive,” infra at 763, because the Commission failed to assure that the guidelines take into account a defendant’s assistance, as required by section 994(n). But Congress only directed the Commission to construct a system taking into account the general propriety of reducing sentences in return for cooperation, not to assure that the sentence would be reduced in every such case.

Section 994(n) requires only that the guidelines recognize the ‘general appropriateness’ of lowering a sentence for substantial assistance. It is possible for the guidelines to recognize that as a general principle it is appropriate to impose a lower sentence on a defendant who substantially assists the government while at the same time not absolutely requiring the district court to consider this factor in every case.

United States v. Lewis, 896 F.2d 246, 247 (7th Cir.1990) (emphasis in original). Moreover, section 5K1.1 does not under any circumstances keep the sentencing court from considering the defendant’s substantial assistance in sentencing within the guidelines range. See U.S.S.G. § 1B1.4; United States v. La Guardia, 902 F.2d at 1016; see also United States v. Huerta, 878 F.2d at 93 (same issue with regard to § 3553(e)).

Judge Heaney further states that the section 5K1.1 motion requirement violates 18 U.S.C. § 3661 by limiting the information a court can consider "concerning the background, character, and conduct of a person convicted of an offense.” Infra at 763. In fact, this objection is groundless since the sentencing court can consider substantial assistance in sentencing within the guidelines range.