130
Opinion of the Court
properly attempted to dispense with or modify the requirement for a departure below the statutory minimum spelled out in § 3553(e)—that of a Government motion requesting or authorizing a departure below the statutory minimum.
The Government has made no such motion here. Hence, the District Court correctly concluded that it lacked the authority to sentence petitioner to less than 10 years' imprisonment.
III
What is at stake in the long run is whether the Government can make a motion authorizing the district court to depart below the Guidelines range but withholding from the district court the power to depart below the statutory minimum. Although the Government contends correctly that the Commission does not have authority to "deem" a Government motion that does not authorize a departure below the statutory minimum to be one that does authorize such a departure, the Government apparently reads § 994(n) to permit the Commission to construct a unitary motion system by adjusting the requirements for a departure below the Guidelines minimum—that is, by providing that the district court may depart below the Guidelines range only when the Government is willing to authorize the court to depart below the statutory minimum, if the court finds that to be appropriate. See Tr. of Oral Arg. 26-31.
We need not decide whether the Commission could create this second type of unitary motion system, for two reasons. First, even if the Commission had done so, that would not help petitioner, since the Government has not authorized a departure below the statutory minimum here. Second, we agree with the Government that the Commission has not adopted this type of unitary motion system. Neither the
the Application Notes are meant to suggest that the court should also consider the § 5K1.1(a) factors in the analogous circumstance of a departure below the statutory minimum.
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