No. 95-5661


on writ of certiorari to the united states court of appeals for the third circuit

[June 17, 1996]

Justice Breyer , with whom Justice O'Connor joins,

To understand that system, one must keep in mind two facts. First, many "substantial assistance" departures involve departures only from Guideline sentences, not from statutory mandatory minimum sentences. When a defendant seeks a "substantial assistance" departure from the minimum Guideline sentence for robbery, fraud, money laundering, tax evasion, or most other offenses, the defendant need not worry about a statutorily required minimum sentence, for either no such minimum sentence applies, or that sentence is so far below the minimum Guideline sentence that there is no practical likelihood of a departure drastic enough to make it relevant. The Guidelines govern departures from these Guideline sentences, and they permit judges to depart downward for "substantial assistance" only if the Government makes a "motion . . . stating that the defendant has provided substantial assistance in the investigation or prosecution of another person who has committed an offense." United States Sentencing Commission, Guidelines Manual §5K1.1, p. s. (Nov. 1995) (USSG). I call the policy statement that sets forth this rule the "Substantial Assistance Guideline."

Second, some criminal convictions implicate not only the Guidelines, but also the special statutes (applicable particularly to drug and weapon offenses) that set "mandatory minimum" sentences. See United States Sentencing Commission, Mandatory Minimum Penalties in the Federal Criminal Justice System, Appendix A, pp. A1-A8 (Aug. 1991) (Mandatory Minimum Penalties). The law does not normally permit a departure below such mandatory statutory minimums. But cf. 18 U.S.C. § 3553(f) (limitation on applicability of statutory minimums in certain cases); USSG §5C1.2 (same). The law does permit such a departure, however, for one special reason, namely, "substantial assistance," but only if the Government makes a "motion . . . so as to reflect a defendant's substantial assistance in the investigation or prosecution of another person who has committed an offense." 18 U.S.C. § 3553(e). I shall call the statute that states this rule the "Substantial Assistance Statute."

With these two basic facts in mind, one might ask what the Commission means by the term "substantial assistance" in its Substantial Assistance Guideline. In particular, do those words in that Guideline mean the same thing that those same words mean in the Substantial Assistance Statute? Or does the Commission intend those words in its Guideline to create a tougher, or perhaps a more lenient, standard where departures from Guideline minimums (rather than departures from statutory minimums) are at issue?

The answer to this interpretive question, in my view, is that the Commission means the term "substantial assistance" in its Substantial Assistance Guideline to create the same standard that the Substantial Assistance Statute creates using the same words. As so interpreted, the Guideline authorizes a sentencing judge to depart downward from a Guideline sentence for substantial assistance only if the Government files the same kind of motion that the Government would file to obtain a departure from a statutory minimum sentence, were such a sentence at issue.

My reasons for believing that the Commission intended to tie its Substantial Assistance Guideline to the Substantial Assistance Statute (thereby recognizing one kind of "substantial assistance," not two) are the following: First, as I have said, the language the Commission used to write its Substantial Assistance Guideline is virtually identical to the language that appears in the Substantial Assistance Statute. Compare USSG §5K1.1, p. s., with 18 U.S.C. § 3553(e). Second, the Commission nowhere suggests that the key words "substantial assistance" mean something different in the two places (the Guideline and the Statute) where they appear, and I cannot imagine any reason why the Commission would have wanted to create different standards through the use of identical words, thereby creating additional administrative complexity and risking unnecessary confusion. Third, the Commission's commentary refers to statutory and guideline departures indiscriminately. USSG §2D1.1, comment., n. 7 (citing Substantial Assistance Guideline for proposition that statutory minimum may be "waived"); see also Mandatory Minimum Penalties, supra, at 59 (discussing unitary "substantial assistance motions").

The Court's reason for reaching the contrary conclusion is that the Commission did not specify that courts could not depart below a minimum Guideline sentence without a Government motion for departure below any applicable statutory minimum. That is, the Substantial Assistance Guideline does not say: "Upon motion of the government stating that the defendant has provided substantial assistance . . . and authorizing the court to depart below the statutory minimum, if any, the court may depart from the guidelines." Ante, at 11 (emphasis added; internal quotation marks omitted). But it is not surprising that the Commission neglected to add these words of crystal clarity to the Substantial Assistance Guideline, since that Guideline governs many cases that have nothing to do with mandatory minimum sentences. It makes sense, instead, for the Commission to have noted the interplay of "substantial assistance" and statutory minimums in its commentary to the Substantial Assistance Guideline, see USSG §5K1.1, p. s., comment., n. 1, and in its section on drug offenses, for which statutory minimums are relatively common, see id., §2D1.1, comment., n. 7.

I recognize that the Court, through its interpretation of the Guideline, avoids having to decide "whether the Commission could create this . . . unitary motion system." Ante, at 10. But the legal question it avoids is not a difficult one. Congress delegated to the Commission broad authority to determine when sentencing courts may reward substantial assistance with a reduced sentence. See 28 U.S.C. § 994(n). The Commission's exercise of delegated authority is normally lawful as long as it is reasonable. See, e.g., United States v. Shabazz, 933 F. 2d 1029, 1035 (CADC) (Thomas, J.) (citing Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-845 (1984)), cert. denied sub nom. McNeil v. United States, 502 U.S. 964 (1991). And a unitary system seems perfectly reasonable. Indeed, the Federal Rules of Criminal Procedure recognize an identical "unitary" system for post-judgment substantial assistance motions. See Fed. Rule Crim. Proc. 35(b) ("[O]n motion of the Government made within one year after the imposition of the sentence," court may reduce sentence "to reflect a defendant's subsequent, substantial assistance"; this may include reduction "to a level below that established by statute as a minimum sentence"). Thus in my view, the Commission had the power to create a "unitary motion system," and is free to maintain such a system, or to change it, in light of evolving criminal justice policies.

In this case, the lower courts accepted the Government's "departure" motion as sufficient to justify a departure below the 135 month Guideline minimum applicable to petitioner's crime, but not sufficient to justify a departure below the applicable 10 year statutory minimum. On a "unitary" view, this disposition could not be correct. Either the motion was sufficient to warrant a departure below the statutory minimum, or it was insufficient to warrant a departure below the Guideline minimum. I would remand this case to the lower courts for further consideration of this case specific issue.

For these reasons, while agreeing with much of what the Court has written, I dissent from its disposition.