United States v. Melendez ( 1995 )


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  •                                                                                                                            Opinions of the United
    1995 Decisions                                                                                                             States Court of Appeals
    for the Third Circuit
    5-22-1995
    United States v Melendez
    Precedential or Non-Precedential:
    Docket 93-5755
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    Recommended Citation
    "United States v Melendez" (1995). 1995 Decisions. Paper 137.
    http://digitalcommons.law.villanova.edu/thirdcircuit_1995/137
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    UNITED STATES COURT OF APPEALS
    FOR THE THIRD CIRCUIT
    N0. 93-5755
    UNITED STATES OF AMERICA
    v.
    JUAN MELENDEZ
    Appellant
    On Appeal From the United States District Court
    For the District of New Jersey
    (D.C. Crim. Action No. 92-cr-00713-2)
    Argued February 16, 1995
    BEFORE:    STAPLETON and COWEN, Circuit Judges, and
    HUYETT, District Judge*
    (Opinion Filed     May 22, 1995)
    Patrick A. Mullin (Argued)
    25 Main Street
    Court Plaza North
    Hackensack, N.J. 97601
    Attorney for Appellant
    Faith S. Hochberg
    United States Attorney
    Victor Ashrafi (Argued)
    Chief, Appeals Division
    970 Broad Street
    Newark, N.J. 07102
    Attorneys for Appellee
    * Honorable Daniel H. Huyett, 3rd, United States District Judge
    for the Eastern District of Pennsylvania, sitting by designation.
    OPINION OF THE COURT
    STAPLETON, Circuit Judge:
    Juan Melendez appeals his sentence.    The first issue
    presented concerns a district court's authority to depart
    downward from a statutory minimum sentence based upon the
    defendant's substantial assistance with a criminal investigation
    where the government has moved under USSG §5K1.1 for a departure
    below the U.S. Sentencing Guideline range but has not moved under
    18 U.S.C. § 3553(e) for a departure below the statutory minimum.
    We hold that, under such circumstances, a district court's
    authority under §5K1.1 to depart below the Sentencing Guideline
    range does not permit it to depart below a lower minimum sentence
    set by statute.   The second issue concerns Melendez's motion for
    a downward departure pursuant to application note 17 to USSG
    §2D1.1.   We agree with the district court that §2D1.1 application
    note 17 does not permit a district court to depart downward from
    a statutory minimum sentence.   The final issue concerns
    Melendez's contention that the district court should have
    permitted him to withdraw his guilty plea.    The record
    establishes that Melendez in fact did not attempt to withdraw his
    plea before the district court.
    I.
    Melendez and codefendant Edwin Moya were approached by
    confidential informants of the United States Customs Service
    posing as importers and transporters of cocaine.    This initial
    contact led to several meetings, during which Melendez, Moya, and
    the confidential informants discussed the availability of cocaine
    for distribution.   The discussions culminated in a meeting during
    which Melendez and Moya gave the confidential informants $10,000
    as a deposit toward the transportation expenses for 24 kilograms
    of cocaine.   The next day, the two codefendants deposited an
    additional $2500 for the transportation of the cocaine.
    Shortly thereafter, Moya and Melendez were arrested by
    New York authorities on unrelated drug charges.    After their
    arrest, Moya's common law wife, Anna Maria Ferrara, her brother
    Raphael Ferrara, and her uncle Bienvenido Polanco, held further
    negotiations with the confidential informants for a 225-kilogram
    cocaine purchase.   Government agents ultimately made a controlled
    delivery of 30 kilograms of cocaine to Raphael Ferrara and
    Polanco.   Raphael Ferrara and Polanco were arrested shortly after
    taking possession of the drugs and Anna Maria Ferrara was
    arrested on the following day.
    Melendez was charged with conspiring, in violation of
    21 U.S.C. § 846, to distribute and to possess with intent to
    distribute more than five kilograms of cocaine, a crime that
    carries a statutory minimum sentence of 10 years' imprisonment.
    21 U.S.C. § 841(b)(1)(A).   He originally pleaded not guilty.
    Plea negotiations ensued, however, and Melendez ultimately signed
    a cooperating plea agreement.    The agreement provided, in
    pertinent part, that in return for Melendez's cooperation with
    the government's investigation and his pleading guilty, the
    government would move for a downward departure from the
    applicable Guideline range pursuant to USSG §5K1.1.    The
    agreement did not require the government to file a § 3553(e)
    motion to depart below the statutory minimum, however.       Melendez
    retracted his plea of not guilty and pleaded guilty to the
    charged conspiracy.
    The probation officer determined that the Guideline
    sentencing range applicable to Melendez's crime was 135 to 168
    months.    The government, in accordance with the agreement, moved
    for a downward departure from that Guideline range, pursuant to
    §5K1.1, in recognition of Melendez's substantial assistance in
    the investigation or prosecution of another person.    The district
    judge granted that motion, and departed downward from the
    sentencing range set by the Guidelines.   However, because the
    government had not also moved pursuant to § 3553(e), the judge
    ruled that he had no authority to depart below the statutory
    minimum and meted out the 10-year minimum sentence required by
    statute.   Melendez maintains that this was error.    He argues that
    a §5K1.1 motion not only triggers the court's authority to depart
    downward from the sentencing level set by the Guidelines but also
    triggers the court's authority to depart below a lower, statutory
    minimum.
    II.
    The government maintains that Melendez waived or
    forfeited his right to appeal this issue, claiming that Melendez
    never formally argued to the district court that the government's
    §5K1.1 departure motion empowered the court to depart below the
    10-year statutory minimum.    To preserve the right to appeal a
    district court ruling, "it is sufficient that a party, at the
    time the ruling . . . is made or sought, makes known to the court
    the action which that party desires the court to take . . . and
    the grounds therefor."   Fed. R. Crim. P. 51.   Moreover, "[t]he
    general rule requiring counsel to make clear to the trial court
    what action they wish taken should not be applied in a
    ritualistic fashion.   If the problem has been brought to the
    attention of the court, and the court has indicated in no
    uncertain terms what its views are, to require an objection would
    exalt form over substance."   3A Charles A. Wright, Federal
    Practice & Procedure § 842, 289-90 (1982 & Supp. 1994); see also
    Government of Virgin Islands v. Joseph, 
    964 F.2d 1380
    , 1384-85
    (3d Cir. 1992) (rejecting the government's contention that an
    issue was not preserved for appeal because the court had been
    made aware of the issue and because a contemporaneous objection
    would not have further aided the district court); cf. United
    States v. 57.09 Acres of Land, 
    757 F.2d 1025
    , 1027 (9th Cir.
    1985) (noting that the government did not waive its right to
    object to jury instructions because the court had been made
    "aware of the government's objection"); Bass v. Department of
    Agriculture, 
    737 F.2d 1408
    , 1413 (5th Cir. 1984) (noting the
    established rule in civil cases "that formal objection is not
    necessary if the trial judge was fairly apprised of the nature of
    the objection").
    Our review of the record reveals that Melendez in fact
    "[made] known to the court the action which [he] desire[d] the
    court to take."    As the Assistant United States Attorney admitted
    during the sentencing hearing:    "Both defendants through counsel
    have argued that the Court depart downward from this mandatory
    minimum."   (App. at 24a.)   Moreover, the district court was made
    well aware of the underlying legal debate over whether a §5K1.1
    motion permits a district court to depart below a statutory
    minimum.    The government admitted during the sentencing hearing
    that "[s]ome arguments indicate that the law doesn't require the
    Court to impose the mandatory minimum."    (App. at 24a.)   Most
    importantly, the district court clearly understood that Melendez
    was asserting these arguments; it expressly addressed and
    resolved the issue of the court's authority to depart below the
    statutory minimum.    In this context, there was no need for
    Melendez to take the additional step of repackaging the
    government's statement as his own formal objection to preserve
    his right to appeal.    Any such requirement would elevate form
    over substance.    Thus, we conclude that this issue is properly
    preserved for appeal and we will proceed to the merits of
    Melendez's argument.
    III.
    Congress has decreed that a person who distributes, or
    conspires to distribute, five kilograms or more of cocaine "shall
    be sentenced to a term of imprisonment which may not be less than
    10 years."    21 U.S.C. § 841(b)(1)(A).   This statute represents a
    Congressional judgment about the seriousness of this offense and
    the degree of sanction necessary to punish and deter this kind of
    conduct.
    At the same time, Congress has recognized that the
    value to society of the cooperation of an individual charged with
    this kind of offense can, under some circumstances, outweigh the
    benefit to be derived from imposing the statutory minimum
    sentence.    Accordingly, Congress has authorized sentences below
    this and other statutory minima.    Section 3553(e) of Title 18
    provides:
    (e) 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 a 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.
    Notably, Congress has authorized sentences below a
    statutory minimum only upon a prosecution's motion; that is,
    before a court may depart below a statutory minimum, the
    prosecutor first must determine that the value of the cooperation
    is sufficiently great to warrant overriding Congress's judgment
    concerning the minimum appropriate sentence.    By requiring a
    government motion, Congress thus gave the prosecutor the sole key
    that affords access to a sentence below a statutory minimum.
    Wade v. United States, 
    112 S. Ct. 1840
    , 1843 (1992).
    That the prosecutor holds the sole key to the area
    below the statutory minimum does not mean that the sentencing
    court, once the prosecutor has made a § 3553(e) motion, has
    unbridled discretion to set a defendant's sentence, however.    As
    the final sentence of § 3553(e) reflects, Congress contemplated
    that the limited downward departure authority there bestowed on a
    sentencing court would be exercised in the context of, and in a
    manner consistent with, a system of Guidelines sentencing that
    was being constructed at the time of the passage of § 3553(e).
    Consistent with this approach, section 994(n) of Title 28 of the
    Sentencing Reform Act of 1984 directs the Sentencing Commission
    to formulate Guidelines that will reflect the general
    appropriateness of rewarding cooperation with sentences lower
    than they would otherwise be, including sentences below a
    statutory minimum.   Section 994(n) of Title 28 provides in
    pertinent part:
    The [Sentencing] 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.
    Although § 994(n) directs recognition of the principle
    that a lower sentence for cooperation can be appropriate, it says
    nothing about a process for identifying particular cases in which
    such a sentence may be appropriate.    Accordingly, nothing in the
    text of § 994(n) suggests that Congress intended by the passage
    of § 994(n) to take back the access key given to the prosecutor
    in § 3553(e).    The same can be said for the legislative history
    of § 994(n).    The most one can argue, from Melendez's
    perspective, is that § 994(n) may authorize the Commission to
    take back that key.    The text of § 994(n) does not seem to us to
    require that reading, however, and the legislative history
    provides no evidence of such an intent on the part of Congress.
    Under § 994(n), the principle that a lower sentence for
    cooperation may be appropriate applies as well to sentences
    established by the Guidelines.    Here also § 994(n) says nothing
    about how particular cases appropriate for such sentences will be
    identified.    Thus, nothing in § 994(n) requires the Commission to
    give the prosecutor an exclusive access key to sentences below
    the Guideline range in return for cooperation.
    The Commission exercised the authority given to it in
    this area by promulgating USSG §5K1.1.    That Guideline and its
    first application note provide in relevant part:
    §5K1.1. Substantial Assistance to
    Authorities (Policy Statement)
    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.
    * * * *
    Application Notes:
    1. Under circumstances set forth in 18
    U.S.C. § 3553(e) and 28 U.S.C. § 994(n), as
    amended, substantial assistance in the
    investigation or prosecution of another
    person who has committed an offense may
    justify a sentence below a statutorily
    required minimum sentence.
    There are two things about this action of the
    Commission that seem to us important in the current context.   The
    first is that the sole authority granted in §5K1.1 is for
    departures "from the guidelines."   Given the express reference in
    the application note to statutes authorizing departures "below a
    statutorily required minimum sentence," we believe this
    limitation must represent an advertent decision on the part of
    the Commission to provide authority in the Guidelines only for
    departures below the Guideline range, leaving departures below
    statutory minima to the authority conferred by § 3553(e).1
    Second, §5K1.1 reflects a policy decision on the part
    of the Commission to give the prosecutor a veto power over
    departures below the Guidelines range based on cooperation.    The
    Commission thus recognized the value of letting the prosecutor's
    1
    . Where a statutory minimum is above the Guideline range, it
    becomes "the guideline sentence." USSG §5G1.1(b). We do not
    suggest that two motions are required in such circumstances. A
    motion under either § 3553(e) or §5K1.1 will suffice to
    demonstrate that the requisite exercise of prosecutorial
    discretion has occurred.
    discretion control access to the area between the applicable
    Guideline range and any applicable, lower statutory minimum, just
    as § 3553(e) allows that discretion to control access to the area
    below a statutory minimum.
    With this background, we turn to Melendez's argument.
    He must first ask us to conclude that Congress in § 944(n)
    authorized the Commission to take back the access key granted to
    the prosecutor in § 3553(e).   While we question this proposition,
    we may accept it arguendo here.    Melendez next insists that the
    Commission, while recognizing the value of allowing the
    prosecutor to control access to departures for cooperation below
    the Guideline range, created a system under which he or she can
    grant access to the area between the Guideline range and a lower
    statutory minimum only by surrendering his or her access control
    to the area below the statutory minimum.    Melendez tenders no
    persuasive reason, however, why the Commission might have chosen
    to create such a seemingly incongruent system.
    The root issue for decision here is whether the
    prosecutor in a given case will be able to grant access to a
    Guideline departure for cooperation and at the same time retain
    control of access to a departure from a lower, statutory minimum.
    A literal reading of §5K1.1 would indicate that a prosecutor has
    this option.   This conclusion is consistent as well with the
    Congressional judgment reflected in § 3553(e).    Moreover, no
    policy considerations appear to counsel against this conclusion
    and a number counsel in favor.    Indeed, beyond this case, a
    denial of this option for the prosecution would appear to be in
    no one's best interest.   As Judge Easterbrook observed in his
    dissent in United States v. Wills, 
    35 F.3d 1192
    , 1198 (7th Cir.
    1994):
    Section 3553(e) and Guideline 5K1.1 permit a
    prosecutor to offer a reward for assistance.
    This process works best if the amount of the
    reward can be graduated to the value of the
    assistance -- a value the prosecutor (who
    sees the full menu of crimes and potential
    cases in the district) can assess better than
    a judge. . . . [H]olding that a motion under
    either § 3553(e) or § 5K1.1 permits the judge
    to give any sentence he deems appropriate
    [will curtail] the prosecutor's ability to
    match the reward to the assistance. When
    cooperation can be procured for a modest
    reduction, a lower sentence overcompensates
    the defendant, at the expense of the
    deterrence force of the criminal law.
    Another consequence is that there will be
    fewer motions of any kind. If filing a
    motion under § 5K1.1 permits the judge to cut
    the sentence by three-quarters (as happened
    here), the prosecutor will insist on a great
    deal of assistance. Many defendants are
    unlucky enough to have little of value to
    offer. . . . They are now condemned to serve
    the full authorized sentence, even though a
    prosecutor possessed of power to
    differentiate might reward slight aid with a
    slight reduction.
    We hold that a motion under USSG §5K1.1 unaccompanied
    by a motion under 18 U.S.C. § 3553(e) does not authorize a
    sentencing court to impose a sentence lower than a statutory
    minimum.2
    2
    . In so concluding, we join the Court of Appeals for the Eighth
    Circuit. United States v. Rodriguez-Morales, 
    958 F.2d 1441
    (8th
    Cir. 1992). We respectfully disagree with the other courts of
    appeals that have addressed the same issue. United States v.
    Wills, 
    35 F.3d 1192
    (7th Cir. 1994); United States v. Beckett,
    
    996 F.2d 70
    (5th Cir. 1993); United States v. Cheng Ah-Kai, 
    951 F.2d 490
    (2d Cir. 1991); United States v. Keene, 
    933 F.2d 711
                                      IV.
    Melendez next argues that the government's confidential
    informants offered to sell him cocaine at prices substantially
    below market price, thereby leading him to purchase a
    significantly greater quantity of cocaine than he ordinarily
    would have been able to purchase given his available funds.      He
    maintains further that the $12,500 he had available for the drug
    deal would have enabled him to purchase, on the open market, only
    between one-half and three-quarters of a kilogram of cocaine
    instead of the more than 50 kilograms attributed to him by the
    district court.   These facts, he contends, mandate a downward
    departure under Application Note 17 to USSG §2D1.1.3
    Melendez is not in a position to make these arguments,
    however.   In his plea agreement, he specifically stipulated that
    (..continued)
    (9th Cir. 1991). We note our accord with the thoughtful dissents
    in Wills and Keene.
    3
    .   Application Note 17 states:
    If, in a reverse sting (an operation in which
    a government agent sells or negotiates to
    sell a controlled substance to a defendant),
    the court finds that the government agent set
    a price for the controlled substance that was
    substantially below the market value of the
    controlled substance, thereby leading to the
    defendant's purchase of a significantly
    greater quantity of the controlled substance
    than his available resources would have
    allowed him to purchase except for the
    artificially low price set by the government
    agent, a downward departure may be warranted.
    his applicable Guideline range was 50 kilograms to 150 kilograms
    of cocaine.   Moreover, the probation report determined that the
    applicable quantity of cocaine to be 75 kilograms and neither
    Melendez's objections to the presentence report nor his
    sentencing letter to the district court requested that less than
    five kilograms should be attributed to him.   We accordingly
    conclude that the district court properly attributed more than
    five kilograms of cocaine to Melendez.
    Having determined that the district court properly
    attributed in excess of five kilograms of cocaine to Melendez,
    the district court then was constrained to impose the statutory
    minimum sentence of 10 years' imprisonment.   See, e.g., United
    States v. DeMaio, 
    28 F.3d 588
    , 591 (7th Cir. 1994) (holding that
    a sentencing court may not depart below a statutory minimum on
    any ground other than substantial assistance to criminal
    investigation); United States v. Rudolph, 
    970 F.2d 467
    , 470 (8th
    Cir. 1992) (holding that defendant's diminished capacity, while
    grounds for departure from the Guidelines sentencing range, is
    not grounds for departure below the minimum sentence set by
    Congress), cert. denied, 
    113 S. Ct. 1023
    (1993); United States v.
    Valente, 
    961 F.2d 133
    , 135 (9th Cir. 1992) (holding that
    defendant's aberrant behavior will not justify a departure below
    a statutory minimum).
    V.
    Finally, Melendez argues that the district court should
    have given him an opportunity to withdraw his guilty plea once he
    learned that the government did not intend to recommend a
    sentence below the 10-year statutory minimum.    This issue also
    was not properly preserved for appeal.     Although Melendez, in a
    brief filed pro se, maintains that he expressed his desire to
    withdraw his plea both in conversations with his attorney and in
    a letter to the court, nothing in the docket sheet or the record
    before this court supports those claims.    Moreover, Melendez
    failed to express his alleged desire to withdraw his plea when he
    addressed the court at his sentencing.   Because Melendez failed
    to raise this issue before the district court, we cannot address
    it here.   See, e.g., United States v. Johnson, 
    359 F.2d 845
    , 846
    (3d Cir. 1966) (noting that questions cannot be presented on
    appeal that have not first been determined by the district
    court).
    VI.
    We will affirm the judgment of the district court.
    No. 93-5755
    HUYETT, District Judge, dissenting:
    I join in Parts I, II, and V of the majority opinion,
    and respectfully dissent with respect to Parts III, IV, and VI.
    Although the issue is a close one, I believe the majority has
    erred in holding that when a sentencing court grants a USSG §
    5K1.1 motion to depart below the guideline sentence, the court
    may not impose a sentence below the statutory minimum unless the
    § 5K1.1 motion is accompanied by a motion under 18 U.S.C. §
    3553(e).   I believe the court should follow the position accepted
    in the majority of circuits that have considered this issue.   See
    United States v. Wills, 
    35 F.3d 1192
    (7th Cir. 1994); United
    States v. Beckett, 
    996 F.2d 70
    (5th Cir. 1993); United States v.
    Cheng Ah-Kai, 
    951 F.2d 490
    (2d Cir. 1991); United States v.
    Keene, 
    933 F.2d 711
    (9th Cir. 1991).    But see United States v.
    Rodriguez-Morales, 
    958 F.2d 1441
    (8th Cir.), cert. denied, ---
    U.S.---, 
    113 S. Ct. 375
    , 
    121 L. Ed. 2d 287
    (1992).
    The majority correctly reasons that 18 U.S.C. § 3553(e)
    and 28 U.S.C. § 994(n) are silent with respect to whether the
    prosecutor should be given exclusive access to sentences below
    the Guideline ranges.   I believe the majority errs, however, in
    determining that § 5K1.1 reflects the Sentencing Commission's
    advertent decision to give the prosecutor a veto over departures
    below the Guideline ranges and to leave departures below the
    statutory minima to the authority conferred by § 3553(e).
    A careful reading of the sentencing guidelines and its
    commentary leads to an opposite conclusion.           Guideline commentary
    "that interprets or explains a guideline is authoritative unless
    it   violates   the     Constitution    or   a   federal    statute,     or    is
    inconsistent    with,    or   a   plainly    erroneous     reading   of,      that
    guideline."     Stinson v. United States, --- U.S. ---, ---, 113 S.
    Ct. 1913, 1915, 
    123 L. Ed. 2d 598
    (1993).           With this direction in
    mind, I believe the court should give more careful consideration
    to the commentary to the guidelines.
    Section 5K1.1 must be read together with application
    note 1 which reads:
    Under circumstances set forth in 18 U.S.C. §
    3553(e) and 28 U.S.C. § 994(n), as amended,
    substantial assistance in the investigation
    or prosecution of another person who has
    committed an offense may justify a sentence
    below   a   statutorily   required   minimum
    sentence.
    USSG § 5K1.1 comment. (n.1).           I believe this note expresses the
    Sentencing Commission's intent that § 5K1.1 serve as a "conduit"
    for the application of § 3553(e), see Cheng 
    Ah-Kai, 951 F.2d at 493
    , and not an attempt to create two separate motions concerning
    substantial assistance.        Application Note 7 to USSG § 2D1.1, the
    guideline     concerning      drug   offenses,    further     supports     this
    interpretation and reads as follows:
    Where   a   mandatory   (statutory)   minimum
    sentence applies, this mandatory minimum
    sentence may be "waived" and a lower sentence
    imposed (including a sentence below the
    applicable guideline range), as provided in
    28 U.S.C. §       994(n), by reason of a
    defendant's "substantial assistance in the
    investigation  or   prosecution   of   another
    person who has committed an offense." See §
    5K1.1     (Substantial      Assistance      to
    Authorities).
    USSG § 2D1.1 comment. (n.7).             The reference to § 5K1.1 rather
    than to § 3553(e) illustrates the Commission's determination that
    departures from the statutory minimum sentence are a mere subset
    of departures from the guidelines.            This cross referencing, along
    with    the       substantial   cross   referencing     between   §   5K1.1,    §
    3553(e), and § 994(n) supports the conclusion that the district
    court has discretion.           See 
    Keene, 933 F.2d at 714
    .
    I    also   disagree   with   the   majority's   view   that   "no
    policy considerations appear to counsel against this conclusion
    and a number counsel in favor" of its conclusion.                 Majority Op.
    at ---.       Other circuits have ably raised policy considerations
    that counsel against the majority's position.             The Ninth Circuit,
    for example, reasoned that with regard to the powers conferred on
    the government by § 5K1.1 and § 3553(e), "[o]nce the motion is
    made by the government, a transfer of discretion regarding the
    range   of     departure     could   well   frustrate    Congress'    goal     of
    eliminating sentencing disparity given the absence of appellate
    review over the prosecutor's activity."              
    Keene, 933 F.2d at 715
    .
    In addition, an interpretation that provides two separate and
    distinct types of departure "would lead to a usurpation of the
    discretion of the district court."                Cheng 
    Ah-Kai, 951 F.2d at 494
    .
    Although   permitting    the   judge   to   depart   below   the
    guidelines or the statutory minimum on the basis of a § 3553(e)
    or § 5K1.1 motion curtails the prosecutor's ability to match the
    reward to the assistance, the defendant's sentence will still
    reflect his cooperation.        Judges are quite capable of making this
    determination and should be permitted to exercise their sound
    discretion.      See id.; 
    Keene, 933 F.2d at 714
    .
    I would vacate the sentence imposed by the district
    court   and    remand    this   case   for   resentencing.    Therefore,     I
    dissent.