MELENDEZ v. UNITED STATES

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Argument of Patrick A. Mullin

Chief Justice Rehnquist: We'll hear argument next in Number 95-5661, Juan Melendez v. The United States.

Mr. Mullin, you may proceed whenever you're ready.

Mr. Mullin: Thank you, Mr. Chief Justice.

Mr. Chief Justice, and may it please the Court:

In this case, there is no dispute that the Government made a motion which asked the district court for a sentence that reflected the petitioner's substantial assistance.

The issue before this Court is whether that Government motion was sufficient to permit a sentence which both departed from the guidelines and was also below a statutory minimum.

Petitioner submits that the Government's motion was sufficient, and bases his position on the language in the pertinent statutory and Sentencing Guidelines provisions.

Unknown Speaker: It's agreed, is it not, Mr. Mullin, that the Government's motion was not filed under section 3553(e)?

Mr. Mullin: That... no, Mr. Chief Justice, I don't agree with that.

The motion that was filed by the Government was brought under section 5K1.1, but it encompassed the requirements under section 3553(e) that permitted--

Unknown Speaker: Well, the question presented, and I believe it was presented in your petition, is... let me get the petition.

It's, once the prosecutor moves for a sentencing departure in recognition of a defendant's substantial assistance to law enforcement, does a Federal court have authority to impose a sentence beneath both the guideline range and a minimum term set by statute, even when the Government does not seek the latter degree of departure?

You say, then, the Government did move under section 3553(e)?

Mr. Mullin: --Oh, no, no, I'm not saying that they brought... that they specific... they specify their application as being under section 3553(e), Mr. Chief Justice.

What I'm saying is that the court had authority to--

Unknown Speaker: Well then the Government... at least the Government's motion by its terms was not made pursuant to 3553(e), you agree with--

Mr. Mullin: --Oh, that is correct, Mr. Chief Justice, yes.

Their motion was brought by letter, I would note, but was accepted as a form of notice of motion by both parties as specifying that a motion was being brought under section 5K1.1 of the guidelines.

It is our position that that motion permitted Judge Sarokin in the District Court of New Jersey to depart not only from the applicable guideline range, which in that case was 135 to 168 months, but also below the 10-year statutory minimum that was in place in that case, or in this case.

The three provisions enacted in the Anti-Drug Abuse Act of 1986 establish a regime to reward substantial assistance by defendants.

Section 3553(e) imposes a Government motion requirement for sentences below statutory minimums.

In section 994(n), Congress directed the Sentencing Commission to, and I'm quoting from the statute now, which... it is found at the appendix Al... assure that the guidelines reflect the general appropriateness of imposing a sentence lower than would otherwise be imposed.

Unknown Speaker: --Whereabouts is that found, Mr. Mullin?

Mr. Mullin: I'm sorry, Mr. Justice, in my brief, my first brief to the Court.

In A1 I specifically cite, at the bottom of the page, the statute.

Unknown Speaker: Thank you, and would you tell us again what you're quoting from the statute?

Mr. Mullin: Moving down to the first line, Congress directed... let me state the language.

Assure that the guidelines reflect the general appropriateness of imposing a sentence lower than would otherwise be imposed... and this is the key language... including a sentence that is lower than that established by statute as a minimum sentence.

And it's petitioner's position that the Congress directed the Commission to establish a regime to regulate the substantial assistance motions to include, and as it states here, not only departures from the applicable guideline range but also departures below mandatory minimums.

Unknown Speaker: Well, that's quite consistent with 3553(e), isn't it, that the Commission was to have a role in both of those kinds of departures?

Mr. Mullin: That's correct, Mr. Chief Justice.

In the second sentence of 3553(e), and again I have that on Al of my brief--

Unknown Speaker: Well, counsel, do you agree that the Commission certainly could have set up an implementation of the statutes that would have set up this kind of two-tier approach that the Government urges?

Mr. Mullin: --Justice O'Connor, I agree with you.

Unknown Speaker: But you simply say to us that that isn't how the Commission implemented it.

Mr. Mullin: That is correct.

Unknown Speaker: And set up instead a one-tier--

Mr. Mullin: That is correct, yes.

That's what the Commission did.

The Commission took the motion requirement under section 3553(e) together with its directives under 994(n) and created a one motion, or a single motion approach, and required that once the Government brings a single motion, then the court has the authority to depart not only from the applicable guideline range, but also below statutory minimums, and this can be found not only in section 5K1.1, but also in the commentary to section 5K1.1 and other commentary found throughout the guidelines.

Unknown Speaker: --Mr. Mullin, what is the clearest indication that that is indeed what the Commission meant, because I found that there was at least some ambiguity.

Mr. Mullin: The clearest indication I would state, Justice Ginsburg, is found in Note 7 to section 2D1.1.

Section 2D1 1... and I apologize to the Court.

I failed to put it in my appendix.

I really should have.

Unknown Speaker: You certainly should have.

Mr. Mullin: And I apologize to the Court for failing to do that, but section 2D1.1 deals with drug cases.

Most of the cases that involve mandatory minimums that come before the Federal courts--

Unknown Speaker: Are we now... 2D1, are we talking about something that you did manage to put in your appendix, or is that the one that you left out?

Mr. Mullin: --Chief Justice, I didn't put it in my appendix.

I did note it in the relevant language in my reply brief, on page... well, it's noted in... on page 30 of my brief, so it is in there.

I'm sorry.

It's not in my appendix, but it is in page 30.

Unknown Speaker: In the reply brief, or brief?

Mr. Mullin: Of my original brief.

In Note 7, as I was stating, section 2D1.1 deals with drug cases.

Most of the mandatory minimum cases at the Federal courts entertained are drug cases.

That's the reality of it, and Note 7 deals with this issue of departure below mandatory minimums, and the language I think is very instructive as to what it says and what it doesn't say.

Note 7 says that a mandatory minimum sentence applies, this mandatory minimum sentence may be 28 U.S.C. section 994, by reason of a defendant's substantial assistance in the investigation and prosecution of another person who has committed an offense.

And then it cites section 5K1.1 for that proposition.

Nowhere in this note is there any reference to section 3553(e).

If the Commission were looking to create a two-track system, or if the Commission were looking to not get involved in departures below mandatory minimums, and to basically not accept the authority that is given to them by the Congress, they would not have put that in there, section 3553, and they did not.

Unknown Speaker: Does 994(n) not refer to 3553?

Mr. Mullin: I don't believe it does, judge.

Justice, I'm sorry.

Justice.

Unknown Speaker: Well, section 994(n) doesn't refer by number to 3553(e), I take it, but it does say the commission shall ensure that the guidelines reflect the general appropriateness of imposing a lower sentence, including a sentence that's lower than established by statute as a minimum sentence, to take account of a defendant's substantial assistance.

Mr. Mullin: Yes.

Unknown Speaker: And 3553(e) is titled, Limited Authority to Impose a Sentence Below a Statutory Minimum, suggesting that that may be the only source of authority to impose a sentence below the mandatory minimum to me.

Mr. Mullin: Well, it was... yes.

It was passed as the exception to the otherwise rule that a court can't depart, or can't sentence below mandatory minimums, so it does create the authority for that.

But what it requires is a Government motion based upon a defendant's substantial assistance.

Unknown Speaker: I'm not sure what your point about the guidelines is.

The statute itself requires a Government motion, right?

Mr. Mullin: Correct.

Unknown Speaker: Now, are you saying that the guidelines could dispense with the necessity for a Government motion despite the fact that the statute says you need it?

Mr. Mullin: Absolutely not.

Unknown Speaker: Then what do the guidelines achieve?

Can the guidelines say that even where there is not such a motion we will deem such a motion to exist?

Mr. Mullin: No, they cannot, Justice Scalia.

Unknown Speaker: Well then, what is it that you claim the guidelines do?

Mr. Mullin: What the guidelines do is require that the Government bring a motion based upon a defendant's substantial assistance, and that is what section 3553(e) requires, before there can be departure below a mandatory minimum, and it's the petitioner's position that under section 5K1.1 the Commission devised a scheme where only one motion has to be brought for a departure both from the applicable guideline range as well as below statutory minimums, so there is the motion requirement met under section 3553.

Unknown Speaker: You are saying that the guidelines have the power to say that a motion to move downward in the guidelines, to depart from the guidelines is, ipso facto, a motion under 3553.

Isn't that what you're saying?

Mr. Mullin: That's correct.

It envelops--

Unknown Speaker: Well, that isn't correct as a statement of law, is it?

I mean, as a statement of law the Commission can't monkey around at all with the statute, has nothing to do with it.

The Commission's job is simply to say what the circumstances are under which you can depart from a guideline.

Mr. Mullin: --That's correct, Justice Breyer.

Unknown Speaker: All right, and if that's true, they could say, I'll tell you one situation in which you can depart downward from a guideline.

One situation... and there may be others, but one situation in which you can depart downward from a guideline, 99 percent of which have nothing to do with mandatory minimum statutes, one situation is where the Government makes the same kind of motion and shows the same kind of assistance that they'd have to show if this were a statutory case and they were interested in the statute.

That's the situation in which you can depart from a guideline for that reason.

That would have been within the Commission's power.

Mr. Mullin: That's correct.

Unknown Speaker: All right.

Then how does that affect your case?

If, as I read this, the Commission said just that, we'll tell you... we'll tell you when you can depart downward from the guideline on the question of substantial assistance.

Judge, you can do that if you are in the same kind of situation where, if there were a mandatory minimum, which most of the time there isn't, it would suffice to get you below the mandatory minimum.

The Commission might well have thought that.

Now, how does that affect your case, because they're telling you that in this case it isn't that kind of situation.

That kind of motion wasn't made, and I guess the Government has the right not to make that kind of motion.

Mr. Mullin: Well, the Government here brought a motion under section 5K1.1.

Once--

Unknown Speaker: But they didn't do it right.

It's a motion, according to them, that doesn't satisfy 5K1.1, if 5K1.1 means what I think it means.

Mr. Mullin: --Well, section 5K1.1, as I--

Unknown Speaker: 5K1.1 says if you want to move under 5K1.1, bring a mandatory statutory type motion, and they're telling you they didn't do it.

Mr. Mullin: --As I read section 5K1.1, it doesn't require that, though, Justice--

Unknown Speaker: Oh, yes it does.

I'm trying... I mean, I think it does, all right.

I think it's saying you've got to bring a mandatory, statutory type motion.

I'm trying to show you something.

If they didn't bring that motion, what happens next, if they're right about that?

Mr. Mullin: --Well, if there's no... if there's--

Unknown Speaker: If they never brought a 5K1.1.

Mr. Mullin: --If they never brought the 5K1.1--

Unknown Speaker: Yes.

Mr. Mullin: --then the court has no authority to depart.

Unknown Speaker: That's right.

Mr. Mullin: Yes.

Unknown Speaker: And so now what happens to your client?

Mr. Mullin: At that point he has, at best, under this scenario, a 135-month sentence.

Unknown Speaker: Why?

Mr. Mullin: Because that's the bottom of the--

Unknown Speaker: Didn't they make a promise that they would bring such a motion?

Mr. Mullin: --They had... they said they would bring a motion if there was substantial assistance.

Unknown Speaker: Yes, and didn't they break that promise if they didn't do it?

Mr. Mullin: Well, that gets into the Wade case, and what this Court decided in Wade.

Unknown Speaker: To just... all right, I'll take it up with them, but I... what I... I'm not certain about this case.

If it's the case that 5K1.1 means you have to bring a statutory type motion to get any departure, it could be up to them whether they did or they didn't do it, but if they didn't do it, aren't they in violation of the plea agreement?

Mr. Mullin: Well, they're... to the extent that the Government agreed in the plea agreement here to bring a motion for departure under section 5K1.1, and didn't state, as they didn't in this plea agreement, that they would seek a cap on the reduction, I agree with Your Honor that they certainly are either in violation of the agreement or in effect may have waived their right to argue.

Unknown Speaker: Well, you didn't raise any question like that in your petition for certiorari, did you?

Mr. Mullin: I did not.

Unknown Speaker: No.

Mr. Mullin: That is correct.

Unknown Speaker: So what are we supposed to do if that's the... that's why... I mean, suppose I did think that was the correct interpretation, how should I decide this case?

Mr. Mullin: Well, the Government moves... its position is that section 3553(e) motion is necessary.

The Third Circuit found it that way, so I think what... this Court is charged with the responsibility of determining whether an application under section 5K1.1 involves departures from the guideline range and from mandatory minimums.

And it is our position that once that motion is brought, the sentencing court has the authority to depart not only from the guideline range but also below any statutory minimum that may be in effect.

Unknown Speaker: I have a question that I don't think will bear on the outcome of the case, but I think it's a necessary predicate for understanding the scheme here.

Suppose that the court in a guidelines case where there's no mandatory minimum imposed by statute, it's just a question of departing from the guidelines or not, suppose the court said, I think this defendant has cooperated with the Government, and the Government said, well, Your Honor, we're not making a motion for downward departure, and the court said, I disagree with that, he has cooperated with the Government, can the court depart downward absent the motion from the Government in a guidelines case?

Mr. Mullin: Absolutely not.

Section 5K1--

Unknown Speaker: Where does the Commission get the authority to tell the court that the court cannot depart downward in such an instance?

Mr. Mullin: --Under section 994(n), Congress directed the Commission to avouch that to create a scheme for dealing with rewarding substantial assistance, and Congress came up with, or the Commission came up with this scheme for departure.

Unknown Speaker: And you think 994(n), you concede that 994(n) authorizes the Commission to require a Government motion before there can be a downward departure under the guidelines for cooperation?

Mr. Mullin: 994(n) does not.

994(n) is silent as to the mechanism in which the Commission can establish the scheme.

Unknown Speaker: All it says is that the Commission shall ensure the guidelines reflect the general appropriateness of imposing a lower standard to take into account a defendant's substantial assistance.

I don't know where that gives authority for the executive to be involved in the judicial function of sentencing.

Now, I recognize that this is true under the statute, because the statute requires this.

Mr. Mullin: Yes.

Unknown Speaker: And I suppose you can say, well, the Commission is simply borrowing from the statute to assume that the Justice Department has a sufficient interest here that there can be no departure absent its motion, but I seriously question whether or not the judge is prohibited from downward departure absent the Government's motion in a guidelines case.

Well, I would think perhaps that 5K1 that you were just quoting, that requires a Government motion, does it not?

Mr. Mullin: Yes, it does.

That's the way the Commission devised the--

Unknown Speaker: But it doesn't... 5K1.1 doesn't say it's the exclusive way to get a downward departure for substantial assistance.

None of the 5K's say they're exclusive, and the beginning of the guideline specifically says at the beginning, in discussing departures, that the Commission... specifically says it, that the... with specific exceptions, and it doesn't mention 5K1.1 is one of them.

The Commission does not intend to limit the kinds of factors, whether or not mentioned anywhere else in the guidelines, that could constitute grounds for departure in an unusual case, so that to me has left open this question.

But limiting factors is quite different from saying whether or not there has to be a motion.

You agree that 5K1.1 requires a motion.

Yes.

Mr. Mullin: --Yes.

5K1.1 as drafted requires a motion.

Unknown Speaker: Justice Kennedy doesn't think that--

--I... could I ask you this hypothetical case?

Supposing in the plea agreement the Government says, we will not make such a motion, but we do agree that if you call these following facts to the attention of the court, we will confirm their accuracy, we will acknowledge that these are true, and there's no motion.

They then go to the judge at the time of sentencing, say, and the defendant asks for a downward departure on the basis of substantial cooperation and says, these facts are sufficient to establish what we think is going to justify a lower sentence.

Would the judge have the authority to impose a lower sentence?

Mr. Mullin: No.

Unknown Speaker: He does not.

Mr. Mullin: Under section 5K1.1 there has to be a Government motion.

Without the motion, the court doesn't have the--

Unknown Speaker: You read it as being exclusive, just the opposite of what Justice Breyer said.

It's a very good question.

It's never been answered as to the extent to which, in a very, very, very unusual case a judge might depart for substantial assistance outside the framework of 5K1.1, so I take it that's never been answered, and I don't know that we'd have to answer it here.

Mr. Mullin: --I'm not aware of any case that has addressed--

Unknown Speaker: No.

Mr. Mullin: --that issue, no.

So it's the petitioner's position that in section 994(n) Congress directed the Commission to establish a framework for departures from the guideline range and from mandatory minimums, and that section 5K1.1 in fact did it.

A motion was brought here under section 5K1.1 for departure, and it's our position Judge Sarokin had the authority to depart below the mandatory minimum range.

Unknown Speaker: Mr. Mullin, suppose the Commission should say, we understand there's some confusion about this downward departure for cooperation, so now we're going to speak clearly, and we're going to say the discretion is with the prosecutor, 1) to go below the guidelines, 2) to go below the mandatory minimum.

The discretion is not with the judge.

The judge cannot act unless... cannot go below the guidelines unless there is a motion to that effect, cannot go below the mandatory minimum unless there's a request to that effect, so it's not a question of whether one motion or two, but who has the discretion.

If the Sentencing Commission made it clear that it thought it had... the prosecutor had the discretion on both questions, do you have any case left?

Are you making a statutory argument independent of the Commission's authority?

Mr. Mullin: Is Your Honor's question... if I can rephrase it, is Your Honor's question if the Commission decided to establish a two-track system for a motion, one motion from the guidelines and a second motion below?

Unknown Speaker: Not numbering the motions.

Motions doesn't matter.

Who has the discretion if the Sentencing Commission said, we think the prosecutor and not the judge has the discretion to initiate a departure from the guidelines, and/or a departure from the mandatory minimum?

Mr. Mullin: Under those circumstances, then we would have a different case than we have now.

It would be... whatever... whether it's 5K--

Unknown Speaker: So essentially, then, you're arguing that we have an ambiguous statutory scheme, the Sentencing Commission could go either way on it, whatever way it goes the court should follow?

Mr. Mullin: --Yes, I don't know if it was... I don't know if ambiguous is the right term, but the Congress said to the Commission, here's what we want you to do, do it, and what the Commission did under 5K1.1 was to establish a scheme, and it was a single motion scheme that they set up to deal with departures for substantial assistance.

Unknown Speaker: I gather the court of appeals had some doubt as to whether it... the Commission could have gone either way on this question.

I think they expressed the view that very likely, even if the Commission had wanted to exercise its discretion to set up a single track system, they thought it might lack that power under 35... whatever it is.

Mr. Mullin: 53(e).

Unknown Speaker: 53(e).

Mr. Mullin: They raised some question about it, but then they focused on what the Commission actually did.

Unknown Speaker: Mr. Mullin, you're not relying on any language in the operative portion of 5K1.1.

You're just relying on the application note, which simply notes that under circumstances set forth in 3553 and 994, substantial assistance would justify a sentence below the statutory required minimum, but the text of 5K1.1 simply says, upon motion of the Government, blah, blah, blah, blah, the court may depart from the guidelines.

That's all that the operative provision says it may depart from.

Mr. Mullin: Justice Scalia, that is correct, and that is the operative language, departure from the guidelines.

There is nothing in that section which limits where the departure can take place, and 5K1.1--

Unknown Speaker: Right, nothing that limits it, but nothing that approves departure from something else, either.

It approves a departure from the guidelines upon motion.

Mr. Mullin: --That is correct, but bear in mind--

Unknown Speaker: And then as a reminder, it's set forth in the application note.

Under circumstances set forth in 3553, circumstances which include a motion by the Government, substantial assistance may justify a sentence below a statutory required minimum.

Mr. Mullin: --But please bear in mind that policy statements under section 1B1.7 of the guidelines had the same effect has the commentary, so when I cite to the commentary, it has the same impact as the policy statement here does, and it's--

Unknown Speaker: I'm sure it's just as authoritative, but the question that we're discussing here is whether the operative portion of 5K1.1 was meant to establish a one-tier system, as you call it--

Mr. Mullin: --Yes.

Unknown Speaker: --to make one motion do the work of two, and for that purpose, whatever the application notes say, it seems to me you look to the text of it, and that text does not suggest that it's a two-tier system.

It just says, upon motion the court may depart from the guidelines.

It could have said, from the guidelines and from any applicable statutory minimum, but that's not what it said.

How could it have said the latter, since the Commission has no authority whatsoever to govern the statutory part.

Well, and also, aren't... departures from the mandatory minimum are a subcategory of departures from the guidelines.

Mr. Mullin: That's correct.

Unknown Speaker: Yes.

Mr. Mullin: That's correct.

Unknown Speaker: So the term guidelines itself embraces both the broader category and the subcategory.

Mr. Mullin: That is correct, and section 5G1.1 is a perfect example.

Where you have a guideline sentence below the mandatory minimum under section 5G1.1 the guideline sentence becomes the minimum, so they are used in... it is a subcategory, and I agree with Your Honor.

I would ask that I be permitted to reserve some time for rebuttal.

Unknown Speaker: Very well, Mr. Mullin.

Mr. Mullin: Thank you.

Unknown Speaker: Mr. Gornstein, we'll hear from you.

Argument of Irving L. Gornstein

Mr. Gornstein: Mr. Chief Justice, and may it please the Court:

Our position is that a district court has the authority to impose a sentence below the statutory minimum only when the Government files a motion requesting such a sentence, so that when the Government moves for a departure from the guidelines to reflect the defendant's cooperation, but does not move for a sentence below the statutory minimum, a district court does not have the authority to impose a sentence below the statutory minimum.

We think that result is compelled by the text of 18 U.S.C. 3553(e), which is on page 2 of our brief.

Unknown Speaker: Is the one a subgroup of the other?

Is every departure from the guidelines... when you approve a departure from the guidelines do you automatically approve a departure from the statutory minimum?

Mr. Gornstein: No, you do not.

Unknown Speaker: No, but the converse is what's the subcategory... yes.

Mr. Gornstein: The converse is true, but to address Justice Stevens' point, what the Commission has said in application Note 1 is that the only time you can do that is under the circumstances set forth in 18 U.S.C. 3553 (e), so it sends you back to the statute, and what you have to decide is what is the meaning of the statute, and it says that, upon motion of the Government, a court shall have the authority to impose a sentence below a level established by statute as a minimum sentence so as to reflect a defendant's substantial assistance.

Unknown Speaker: Well, could the Commission expressly adopt a rule that says, we will deem a Government motion asking the court to consider the defendant's substantial assistance to be a motion that satisfies 3553(e) as well as any guideline?

Mr. Gornstein: We do not think it could.

We think that 3553(e) means that there has to be a Government request for a sentence below the statutory minimum.

If there is not that kind of request, the Commission cannot deem it one.

I would say... I would distinguish that from the situation where the Commission set up a guideline system and said we will only open up a guidelines departure for assistance if the Government first comes in and says, we move for a sentence below the statutory minimum, but the Commission clearly did not do anything like that.

Unknown Speaker: It didn't?

Mr. Gornstein: No, it didn't.

Unknown Speaker: Because I thought that what it could have said was this.

Couldn't it have said the following?

There is a thing, a certain animal.

We'll call this animal what happens when you want to go below a statute.

The animal has two parts.

The Government makes a motion, and the Government says, a special assistance, and there's a statute that describes in words just what that is.

Doesn't the Commission have the authority to say, we will tell you when you can depart from a guideline, you can depart from a guideline when you have the statutory animal?

Doesn't it have the authority to tell people when it can depart downward for substantial assistance, and doesn't it have the authority to choose that those times are when you have the kind of animal that would allow you to depart from the statute?

Mr. Gornstein: I think I would distinguish the two situations, again, where the Commission--

Unknown Speaker: I understand that they're different.

I understand that.

Mr. Gornstein: --And what I would say that what the Commission cannot say is that a motion for a departure from the guidelines is, ipso facto--

Unknown Speaker: Of course you're right.

Now--

Mr. Gornstein: --Okay, and now--

Unknown Speaker: --Now, but then the question becomes, did it choose to allow the departure from the guidelines only where, under 5K1.1, there is the statutory animal?

The evidence that they give is that they used almost identical words.

The words of 5K1.1 are identical to the statute, almost, with irrelevant differences.

The second piece of evidence is the note you cited refers to circumstances set forth both in 3553(e), which is the statute, and 994(n), which is the guideline, so there are two pieces of evidence that they meant the same animal, and I see no evidence that they didn't mean it.

Mr. Gornstein: --I... we disagree.

Unknown Speaker: Well, I know that, but I'm looking for the argument.

Mr. Gornstein: And now I'll explain why.

First of all, just by using the term, substantial assistance, the terms mean the same thing, but--

Unknown Speaker: Oh, no, it's more words than that.

Mr. Gornstein: --Well, let me start just, that was part of what was similar, and I'll take one bit of it at a time.

Just by using the term, substantial assistance, that is a necessary condition, but not a sufficient one for filing a motion to depart from the statutory minimum.

The Government must go on to decide whether, in light of that substantial assistance, the seriousness of the defendant's conduct, the level of operation, and a host of other factors, whether that warrants a motion by the Government to seek a sentence below the statutory minimum.

Now, there are many cases in which the Government, where there is a difference between the guidelines range, which is significantly above the statutory minimum because a defendant may have a long criminal history, he may be dealing in quantities that are much larger, and--

Unknown Speaker: May I interrupt... may I, just with this one thought, concentrating on the words, substantial assistance, you are in effect arguing there are two kinds of substantial assistance, one that justifies a departure from the statute, and the other just justifies a guideline departure, but there's nothing in the text of either document that describes two kinds of substantial assistance.

Mr. Gornstein: --And I'm not saying there are two kinds.

I'm saying the same kind of substantial assistance might lead the Government to move only for a guidelines departure or only... for both a guidelines departure and a departure from the statutory minimum in light of the serious... if... the Government might, for example, say, this conduct is so serious that we are not going to move... we are not going to seek to get this defendant's cooperation by moving for--

Unknown Speaker: Yes, but the... well, let me just interrupt you.

The seriousness of the defendant's conduct, it seems to me, has already been evaluated in the guidelines, and the general purpose here is to say, to what extent shall we go below what would normally be the correct evaluation of the seriousness of the conduct?

Mr. Gornstein: --But on the statutory minimum sentences the Government is perfectly free to take into account that the defendant has engaged in serious conduct and, notwithstanding that he may be giving substantial assistance, we're not going to reward that substantial assistance for somebody who has a 16 to 20-year guideline sentence with something that goes below the statutory minimum.

Unknown Speaker: Mr. Gornstein, I was surprised to hear you agree with Justice Breyer that the Commission could establish a rule, we will allow no departure below the guidelines unless there is also a departure below the minimum.

Isn't... you said--

Mr. Gornstein: That--

Unknown Speaker: --the Commission could do that.

Mr. Gornstein: --The Commission could do that.

I think that--

Unknown Speaker: Would that be in accordance with the requirement of section 994(n) that it assure... assure... that the guidelines reflect the general appropriateness of imposing a lower sentence than would otherwise be imposed, including a sentence that is... including a sentence that is lower... to take into account a defendant's substantial assistance.

I would think to say arbitrarily, well, unless the Government is willing to go below the minimum, we're not going to reduce this... allow the sentence to be reduced at all, even within the guidelines, above the minimum.

I don't think that would comply with (n).

Mr. Gornstein: --Well, we think the Commission would have that authority under 994(n), because we think it would satisfy the charge that it provide... that it's generally... for the general appropriateness of departures before the guidelines, because in--

Unknown Speaker: What relevance does the Government's unwillingness to go below the minimum have to do with the appropriateness of reducing it within the guidelines above the minimum?

I can't... I just don't see the--

Mr. Gornstein: --Well, I think that in a large category of cases the Government would be willing to do both, so you are talking about a discrete category of cases--

Unknown Speaker: --Well, I know that, but--

Mr. Gornstein: --where the Government--

Unknown Speaker: --that's no justification for treating them irrationally.

Mr. Gornstein: --Well, I think that it doesn't have much to recommend it, and we wouldn't advise the Commission to do something like that--

Unknown Speaker: Well, I wouldn't advise you to accept the proposition, because number 1, it hurts your case, and number 2, it doesn't seem to me to be there in the statute.

Mr. Gornstein, you argued a moment ago that because of the seriousness of the conduct, the Government might very well say, well, we'll go below the guideline but not below the minimum, and you say we shouldn't be placed in a position in which we're forced to do that.

But your argument seems to assume that if there is, we'll say, a one-motion procedure and if you speak the magic words, substantial assistance, in for a penny, in for a pound, that's not true.

I mean, the Government, on that assumption, does not have to stand moot after its motion is filed.

The Government can come in and say, look, judge, don't go below the statutory minimum.

The reason you shouldn't go below the statutory minimum is, the conduct is this serious, for reasons A, B, and C, and the second reason is, that isn't the deal we made.

The deal we made with this guy was that we would file the motion, and we would then come in and say just what I'm saying.

Go below the guideline, but don't go below the statutory minimum.

Mr. Gornstein: --The difficulty there, Justice Souter, is there are... the difference in perspective between the Government and the court.

In many instances, there is a difference in perspective, and the... where they're going to reach differing conclusions about the value of that assistance.

Unknown Speaker: Which was... as it was under the old law, as it were.

Mr. Gornstein: And... but I... and I--

Unknown Speaker: That's always been true.

When you came in, the Government might sort of run away with your deal in a way that was favorable to the defendant.

Mr. Gornstein: --But I think what that translates into is the behavior of the prosecutor as he makes the deal.

If... there... if you're in a situation where the prosecutor thinks that by filing any sort of motion at all it's going to open up a departure below the statutory minimum as well as the guidelines, then there will be a significant number of cases in which the prosecutor will be unwilling to make any deal at all.

Unknown Speaker: Yes, but couldn't you--

--Your argument at any rate is that Congress left that to the prosecutor and not to the court.

Mr. Gornstein: That's right.

Apart from the policy considerations that--

Unknown Speaker: But isn't there a possible answer to that, and that's why both Justices... I don't know if this why Justice Kennedy asked the question, but his question raises this.

Supposing you lost the case, and I'm not suggesting you will, would it not thereafter still be possible for you to say in a plea bargain, we're not going to make any motions, but if... but we will agree to tell the judge that you had done the following cooperative things, and then the defendant could ask the judge for a departure saying, I've given substantial assistance, and is there anything in the statute that would prevent the judge from going ahead and taking that into account without any motion at all?

Mr. Gornstein: --Well, yes, 3553(e) would certainly preclude the court from--

Unknown Speaker: He couldn't go below the minimum--

Mr. Gornstein: --That's right.

Unknown Speaker: --no, no, but he could go below the guidelines.

Mr. Gornstein: Well, no, 5K1.1 requires a Government motion to go below the guidelines.

Unknown Speaker: That's true--

--Well, it says he may do.

It doesn't say it must do it.

Mr. Gornstein: Well, we read 5K1.1--

Unknown Speaker: You read that as disabling that possible solution which would protect your interest and keep the scheme alive that you're arguing for.

Mr. Gornstein: --Well, 5K1.1 simply doesn't leave that option open.

Unknown Speaker: Okay.

Mr. Gornstein: And our interest is better protected by affirming the judgment in the court of appeals in this case.

Unknown Speaker: Mr. Gornstein--

--I have a feeling it really doesn't make any difference who wins this case.

What is the authority of the Commission to limit the power of the district judge to depart under the guidelines downward based on an encouraged factor without the motion... without the consent of the United States?

Mr. Gornstein: Without the consent--

Unknown Speaker: Without the consent of the United States, in a guidelines case.

I understand about the mandatory minimum.

Mr. Gornstein: --Well, I think 994(n) gives the Commission authority, general authority to decide how to proceed with substantial--

Unknown Speaker: No, it just says it should provide assurance, I think is what it says.

Mr. Gornstein: --That's right, but I think beyond that the Commission generally has authority--

Unknown Speaker: To assure that the guidelines reflect the general appropriateness.

I don't find in there a veto power given to the United States Attorney on a downward departure under the guidelines.

Mr. Gornstein: --No.

I think all it does is give the Commission the responsibility to decide how that should be done, and here the Commission decided that that should be done with a motion.

Unknown Speaker: That there be a veto power in the United States Attorney's Office.

Mr. Gornstein: That's correct.

Unknown Speaker: I don't find that under the statute.

Mr. Gornstein, my understanding that those instructions are what the U.S. Attorney... the U.S. Attorneys all over the country are telling district judges you do not have authority for any downward departure for substantial cooperation unless we ask you to.

Mr. Gornstein: That's correct.

Unknown Speaker: And I... one question I had about the current status of the Sentencing Commission's thinking on this subject, is there not ongoing some kind of review within the Commission of substantial cooperation departures?

Mr. Gornstein: There is not.

Unknown Speaker: There is not?

Mr. Gornstein: There is a study currently under way not addressing this particular problem, but the Commission has a study underway studying how substantial assistance departures have worked out in practice, and there is a preliminary report, not a final report, that--

Unknown Speaker: But it doesn't touch this problem at all.

Mr. Gornstein: --No, it does not.

Unknown Speaker: Is there any indication... I mean, there are circuits, most of them, perhaps, or some of them that just have the one motion rule, the Second Circuit, I think, right?

Mr. Gornstein: There are four circuits that have ruled against us in this case.

Unknown Speaker: And has there turned out to be a problem, a practical problem that's led you perhaps to think of asking the Commission to create a kind of substantial assistance light, a 5K1.1 light, if you were to... you know, that--

Mr. Gornstein: We actually have been involved legislatively, but that is on hold pending the outcome of this case.

Unknown Speaker: --Has the Commission considered it at... I mean, you could... there's nothing... it's not illogical to have a 5K1.1 light.

I mean, it is... that's maybe a good thing to do, but is there anything we can look at where you... that's public?

I mean--

Mr. Gornstein: We have not gone to the Commission with this.

I think what... we think the rule is right now that there is a window, and that that would only need to be changed if this Court ruled against us in this case.

Unknown Speaker: --Could you tell me, counsel, are there many cases in which this undertaking, this promise by the Government to move downward, either under the guidelines or the sentence, is made in the field during part of the investigation, or is this usually just done with a plea bargain after the defendant has counsel, et cetera?

Mr. Gornstein: Right.

It's done at the plea bargaining stage.

Unknown Speaker: Never in the field in this--

Mr. Gornstein: I wouldn't... I don't want to say never.

I think almost always--

Unknown Speaker: --Almost always.

Mr. Gornstein: --at the plea bargaining stage.

Unknown Speaker: If you're finished, I do have a... suppose I did think... I mean, I put these questions more forcefully, often, than I... when I'm accually uncertain, but if it turned out that I did think that the 5K1.1 is meant to pick up the statutory animal, you know, what I've been saying, still, it would be up to the Government to say what kind of motion they've made.

So how would... what would be the outcome in this case?

You see, I mean, it's... you're absolutely right that the Commission can't control--

Mr. Gornstein: That the consequence--

Unknown Speaker: --Yes.

Mr. Gornstein: --if you're saying that it requires a motion to go below the statutory minimum--

Unknown Speaker: Yes, but that--

Mr. Gornstein: --then the consequence in this case is the court had no authority, and then--

Unknown Speaker: --So we would affirm, but then you might be in violation of the plea agreement.

Is that how it would work?

Mr. Gornstein: --I think our plea agreement only committed us to file a motion under the guidelines.

Unknown Speaker: That's--

Mr. Gornstein: Which we did.

In our view we did.

Unknown Speaker: --What I'm trying to figure out is, if you took the view, if it turned out that 5K1.1 is meant to say you have to have a certain animal, and that is the statutory animal, and you tell us you don't have that animal therefore you don't have the 5K1.1 animal, if that's what we thought, if that's what I thought, I can't figure out how this case should come out.

Mr. Gornstein: Well, first of all, the question of the plea agreement is not here, because the--

Unknown Speaker: Yes, that's right.

Mr. Gornstein: --petitioner has never raised an issue in either the district court, the court of appeals, or anywhere else that there's been a breach of the plea agreement.

Unknown Speaker: That's right.

Mr. Gornstein: If we were going to address what the plea--

Unknown Speaker: I don't want to address it.

Mr. Gornstein: --Okay.

Unknown Speaker: I just want to know, how would we decide--

--No, but--

Mr. Gornstein: It's not here.

Unknown Speaker: --How in your opinion--

--we should... how should I decide this?

Mr. Gornstein: If the issue were here, or not?

If the issue were here, and we were deciding, did the Government breach its plea agreement?

The answer is no, it didn't, because it filed the relevant motion.

Now, it may be that that turned out to be worthless under the circumstances of this case.

But that's okay.

There's nothing wrong with the Government doing something that's worthless on some occasions as long as that's what the agreement required it to do.

And that would be the case under your hypothetical.

Unknown Speaker: Is the office of the Commission to issue a policy statement helping courts interpret what motions are, that there's a presumption that if you make the motion without distinguishing between the two that it means both guidelines and statutes, but that you still have the option to be more specific?

Mr. Gornstein: We don't think that the Commission does have that role.

We think the Commission's responsibility is with respect to 3553(e) motions it comes in after the Government makes its motion for a sentence below the statutory minimum.

It's at that point that the Commission's responsibility takes over in deciding what the sentence will be after that.

With respect to 5K1.1, yes, the Commission probably has authority with respect to the guidelines to decide what sort of motion should be filed.

Unknown Speaker: May I ask how you would deal with the following motion: motion of the Government for a sentence which will appropriately reflect the defendant's substantial assistance with the Government--

Mr. Gornstein: That would be a very--

Unknown Speaker: --and attach... yes, but supposing that was the way it was phrased, would the judge have any authority or not--

Mr. Gornstein: --No.

Unknown Speaker: --to go below... you think not.

Mr. Gornstein: Right, because I think that the statutory minimum penalties are so important, and were deemed so important by Congress, that you really need a very explicit and clear statement by the Government that it is seeking a sentence below the statutory minimum.

I think that's what 3553(e) contemplates, that specific judgment that we think that this is not just substantial assistance.

And it's not just substantial assistance that warrants a departure from the guidelines or a reduced sentence.

It is substantial assistance that, in our judgment, makes it appropriate for this defendant to receive a sentence below the statutory minimum.

Unknown Speaker: Do you think the Justice Department ought to have sort of a Miranda warning in its plea agreements:

"Watch out, there are two kinds of departures? "

Mr. Gornstein: Well, I think after the Court decides this case, everyone will know.

[Laughter]

Unknown Speaker: Well, would you object to having a Miranda warning in every plea agreement just in case someone doesn't?

Mr. Gornstein: We would object to including that sort of thing.

Unknown Speaker: Why would you object to informing the defendant of the fact that he may be trapped by your plea agreement?

Mr. Gornstein: It's not a matter of objecting.

As a matter of policy, it's a good idea, but the question comes up in those rare cases where that warning wasn't given what should happen, and we think that what should... happen should be dictated by the statute in that situation.

If the Court has nothing further--

Unknown Speaker: Thank you, Mr. Gornstein.

Mr. Mullin, you have 3 minutes remaining.

Rebuttal of Patrick A. Mullin

Mr. Mullin: Yes, Mr. Chief Justice, I know I have a couple of minutes.

I just want to address a point raised by Justice Breyer.

I believe that Your Honor was questioning the Solicitor General about statistical evidence showing the effect of the departures under section 5K1.1 not only below the guidelines but also below mandatory minimums.

I believe the annual report of the Commission, the Sentencing Commission, reflects those statistics, and if this Court wishes I can certainly produce an additional submission to that effect.

I would note, and again it's not in my papers, but of the research that I've done in a couple of the circuits, the Ninth Circuit and the Second Circuit that have ruled in favor of petitioner, the number of departure... number of departure applications by the Government has gone up, and has gone up significantly since those decisions were made.

But again, if the Court wishes for me to provide that information, I'd be delighted to do it in each one of the circuits where this decision was made in favor of the petitioner.

Otherwise, I'll simply rely upon my briefs and on the arguments that I submitted before this Court today, and ask that you rule in favor of Mr. Melendez.

Thank you.

Chief Justice Rehnquist: Thank you, Mr. Mullin.

The case is submitted.

Unknown Speaker: The honorable court is now adjourned until Monday next at ten o'clock.