128
Opinion of the Court
the assumption that the district court retains "full discretionary power" over the extent of the sentencing reduction (i. e., the authority to choose any sentence once the Government makes any motion confirming the defendant's substantial assistance); 7 (4) that the reference to § 5K1.1 alone (rather than to § 3553(e)) in USSG § 2D1.1's Application Note 7 further supports petitioner's claim that § 5K1.1 is a conduit for implementation of § 3553(e); 8 and (5) that if the factors described in § 5K1.1(a) limiting the district court's discretion do not apply to sentences imposed after the Government moves to depart below the statutory minimum, then the district court's discretion will be wholly unlimited in those circumstances.
In the Government's view, § 3553(e) already gives the district court authority to depart below the statutory minimum on motion to do so by the prosecutor. The Government urges us to read the last sentence of § 3553(e), and the inclusion of the phrase "including a sentence that is lower than that established by statute as a minimum sentence" in § 994(n), as merely requiring the Commission to constrain the district court's discretion in choosing a sentence after the Government moves to depart below the statutory minimum. The Government contends that the first paragraph of § 5K1.1 does not authorize departures below the statutory minimum, but that § 5K1.1(a) does apply to sentences imposed after the
7 Application Note 3 provides: "Substantial weight should be given to the government's evaluation of the extent of the defendant's assistance, particularly where the extent and value of the assistance are difficult to ascertain." USSG § 5K1.1, comment., n. 3.
8 Application Note 7 provides in pertinent part: "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. Section 2D1.1 is a Guideline addressed to a variety of drug offenses.
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