United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT

      ___________

      No. 00-1001
      ___________

United States of America,             *
                                      *
            Appellee,                 *
                                      *
      v.                              *
                                      *
John Herman Buckendahl,               *
                                      *
            Appellant.                *
                                          Appeals from the United States
      ___________                         District Court for the Northern
                                          District of Iowa.
      No. 00-1057
      ___________

United States of America,             *
                                      *
            Appellee,                 *
                                      *
      v.                              *
                                      *
John Joseph Ringis,                   *
                                      *
            Appellant.                *
      ___________

      No. 00-1151
      ___________

United States of America,             *
                                      *
            Appellee,                 *
                                      *
      v.                              *
                                      *
Joseph John Johnson,                  *
                                      *
            Appellant.                *

      ___________

      No. 00-1266
      ___________

United States of America,             *
                                      *
            Appellee,                 *
                                      *
      v.                              *
                                      *
Juan Carlos Valdivia-Cardona, also    *
known as Steven Paul Garcia, also     *
known as Stevan Garcia,               *
                                      *
            Appellant.                *




                                     -2-
      ___________

      No. 00-1392
      ___________

United States of America,                *
                                         *
             Appellant,                  *
                                         *
      v.                                 *
                                         *
Jeffrey Alan Clark,                      *
                                         *
             Appellee.                   *
                                    ___________

                              Submitted: November 14, 2000

                                   Filed: May 31, 2001
                                    ___________

Before BEAM, HEANEY, and BYE, Circuit Judges.
                           ___________

BEAM, Circuit Judge.

       This opinion addresses appeals from five separate criminal cases in the Northern
District of Iowa. At issue is whether a district court may depart downward from the
United States Sentencing Guidelines (Guidelines) based on an interdistrict sentencing
disparity arising from the practice of the United States Attorney for the Northern
District of Iowa to rarely agree to grant use immunity under section 1B1.8 of the
Guidelines. We hold that the court does not possess such authority. Accordingly, we
affirm in part and reverse in part.




                                         -3-
I.    BACKGROUND

       The defendant in each criminal case pleaded guilty to at least some of the
charges against him. John Joseph Ringis, Juan Carlos Valdivia-Cardona and Joseph
John Johnson all entered pleas without cooperating with the government. They each
made the decision to not cooperate, at least in part, because they were not offered
section 1B1.8 use immunity. Without this protection, any information they gave to the
authorities about the activities of others, which was also self-incriminating, could be
used against them in calculating their offense levels (and thus in determining their
sentences) under the Guidelines. Johnson and Valdivia-Cardona offered to cooperate
with the government in exchange for section 1B1.8 protection, but when no protection
was offered, they pleaded without cooperating. John Herman Buckendahl cooperated
with the government by providing information on the criminal activities of others. The
cooperation agreement contained a "limited use immunity" provision that prohibited the
government from bringing further drug charges against Buckendahl based on the
information he provided, but allowed the information to be used in calculating his
sentence. In the course of his debriefing, he furnished information that tended to
increase his sentence under the Guidelines.1

       The district court held a consolidated hearing in these cases for the limited
purpose of addressing the court's ability to depart downward from the Guidelines due
to this purported policy or practice of the federal prosecutors in the Northern District
of Iowa. The court determined that the prosecutor's office had such a policy or practice
resulting in a significant disparity between the Northern and Southern Districts of Iowa
in the availability of section 1B1.8 immunity. In fact, the court received testimony that



      1
        More details about the situation of each individual defendant are contained in
the district court opinion. United States v. Ringis, 

(N.D. Iowa
1999).

                                          -4-
prosecutors in only three or four other districts in the country followed a similar
practice.

       The court found that it possessed the authority to depart downward based on the
disparate practices of the prosecutors. However, it declined to depart in the cases of
Ringis, Valdivia-Cardona and Johnson because, by refusing to cooperate with the
government, they had revealed no additional information that increased their sentences
and thus suffered no actual prejudice as a result of the policy. The court also refused
to depart in Buckendahl's case because, although he provided information in his
debriefing that would have increased his sentence, the court concluded that the
government already possessed this information through independent sources. Thus, he
also suffered no prejudice as a result of the practice.

        Jeffrey Alan Clark's case came before the court at a later date. He entered a plea
of guilty and cooperated with the government by submitting to a debriefing session and
testifying before a federal grand jury. As a result of information he provided through
this cooperation, Clark's offense level under the Guidelines increased from 28 to 36.
The court found this to be actual prejudice to Clark, and departed downward.

II.   ANALYSIS

      A.     Standard of Review

       We give substantial deference to the district court's decision as to whether to
depart from the Guidelines in an individual case. Koon v. United States, 

,
98 (1996). However, "whether a factor is a permissible basis for departure under any
circumstances is a question of law, and the court of appeals need not defer to the
district court's resolution of the point." 

                                           -5-
      B.     Heartland Approach

       In response to the perception that "federal judges mete out an unjustifiably wide
range of sentences to offenders with similar histories, convicted of similar crimes,
committed under similar circumstances," Congress created the United States
Sentencing Commission (Commission) for the purpose of promulgating a
comprehensive set of sentencing guidelines. 

(citation omitted). The
Guidelines "specify an appropriate sentencing range for each class of convicted persons
based on various factors related to the offense and the offender." 

 A district court must impose a sentence within the range specified by the applicable
guideline. 

recognized that a sentencing court must retain some measure
of flexibility to respond to the individual circumstances of a given defendant. To serve
that end, a district court may depart from the applicable guideline range if "'the court
finds that there exists an aggravating or mitigating circumstance of a kind, or to a
degree, not adequately taken into consideration by the Sentencing Commission in
formulating the guidelines that should result in a sentence different from that
described.'" 

U.S.C. § 3553(b)); see also U.S. Sentencing Guidelines
Manual [hereinafter U.S.S.G.] § 5K2.0 (1999). Sentencing courts should "treat each
guideline as carving out a 'heartland,' a set of typical cases embodying the conduct that
each guideline describes." U.S.S.G. Ch. 1, Pt. A(4)(b). When determining whether a
case is typical or atypical (whether there exists a mitigating factor not adequately taken
into account by the Commission), "the court shall consider only the sentencing
guidelines, policy statements, and official commentary of the [Commission]." 18
U.S.C. § 3553(b).

     After identifying a potential factor for departure, the sentencing court should
employ the following rules:


                                           -6-
              [1] If the special factor is a forbidden factor, the sentencing court
       cannot use it as a basis for departure. [2] If the special factor is an
       encouraged factor, the court is authorized to depart if the applicable
       guideline does not already take it into account. [3] If the special factor
       is a discouraged factor, or an encouraged factor already taken into
       account by the applicable guideline, the court should depart only if the
       factor is present to an exceptional degree or in some other way makes the
       case different from the ordinary case where the factor is present. [4] If
       a factor is unmentioned in the guidelines, the court must, after
       considering the "structure and theory of both relevant individual
       guidelines and the Guidelines taken as a whole," decide whether it is
       sufficient to take the case out of the Guideline's heartland.

(citations omitted). The Commission expected that departures
based on factors not mentioned in the Guidelines would be "highly infrequent."
U.S.S.G. Ch. 1, Pt. A(4)(b). We are cautioned, however, against creating broad rules
about what may not be a proper basis for departure because "Congress did not grant
federal courts authority to decide what sorts of sentencing considerations are
inappropriate in every circumstance." 

.

        Disparity in the availability of section 1B1.8 protection is a factor not specifically
mentioned in the Guidelines. It is certainly not in the explicitly forbidden factors nor
is it an encouraged or discouraged factor. See U.S.S.G. §§ 5H & 5K. Therefore, we
will proceed to consider the structure and theory of the Guidelines to determine
whether it is sufficient to take this case out of the Guideline's heartland and warrant
departure.2


       2
        It could also be argued that the "heartland analysis" only applies to offender
characteristics or conduct and is not appropriately applied to other parts of the
Guidelines. See United States v. Banuelos-Rodriguez, 

, 974 (9th Cir.
2000) (en banc). While we agree that the heartland analysis seems most suited to
evaluating offender characteristics and conduct, we decline to craft a rule at this time
limiting it to such a context.

                                             -7-
      C.     Structure and Theory of Guidelines

             1.     Disparity in Practices

       A justified disparity in legitimate prosecutorial practices, or even a disparity in
sentences resulting from prosecutorial practices, is almost never a proper basis for
departure. See United States v. Guzman-Landeros, 

, 1035 (8th Cir.
2000) (per curiam) (rejecting the defendant's argument that he would have been eligible
"for a downward departure based on the sentencing disparity which arises from
differing prosecution and plea-bargaining practices among federal districts"). For
instance, we have held that a sentencing court may not depart based on disparities in
the sentences of codefendants or coconspirators which arise from the plea bargaining
and charging practices of prosecutors. See United State v. Wong, 

, 728
(8th Cir. 1997); United States v. Polanco, 

, 897 (8th Cir. 1995); United
States v. Foote, 

, 666 (8th Cir. 1990).

       Other courts have reached similar results, finding no authority to depart based
on sentencing disparities that resulted from interdistrict differences in plea-bargaining
policies, United States v. Armenta-Castro, 

, 1257(10th Cir. 2000);
United States v. Banuelos-Rodriguez, 

, 978 (9th Cir. 2000) (en banc);
United States v. Bonnet-Grullon, 

, 709-10 (2d Cir.), cert. denied, 121 S.
Ct. 261 (2000) or a prosecutor's decisions about attributing differing drug amounts to
codefendants based on whether they entered a plea or went to trial, United States v.
Rodriguez, 

, 153 (1st Cir. 1998), cert. denied, 

(1999).
Generally, the proposition that disparities in sentences among codefendants resulting
from a routine exercise of prosecutorial discretion are unsuitable for departure, is
beyond question. See United States v. Meza, 

, 549 (7th Cir. 1996)
(finding codefendant disparity resulting from "proper application" of the Guidelines was




                                           -8-
not a basis for departure); United States v. Epley, 

, 584 (6th Cir. 1995)
(denying departure where coconspirator "made a good deal with the authorities" and
received a lower sentence); United States v. Ellis, 

, 1066 (4th Cir. 1992)
(holding that absent prosecutorial misconduct a district court may not depart downward
based on disparity between codefendant sentences). Additionally, a statistical disparity
between the median sentence for drug trafficking in one particular circuit and the
national median has been found to be an inappropriate ground for departure. United
States v. Martin, 

, 57 (1st Cir. 2000).

       Defendants are correct that promoting greater uniformity in criminal sentences
is one of the Guidelines' main purposes. See United States v. Decora, 

,
678 (8th Cir. 1999). However, as the above cases make clear, departures based on the
perceived disparity in individual cases would more likely serve to undermine the overall
goal of uniformity rather than further it. See, e.g., 

("Consideration of a codefendant's sentence would 'create, rather than alleviate,
disparity among the sentences imposed nationwide upon federal defendants convicted
of similar crimes.'") (quoting United States v. Hall, 

, 864 n.4 (4th Cir.
1992)).

       Allowing sentencing courts to depart based upon the disparity of availability of
section 1B1.8 protection between districts potentially leads to the same result as the
cited cases–actually undermining the overall goal of uniformity. However, under
proper analysis, resolution of this case does not depend upon whether the departure
would in fact promote or hinder national uniformity because "a review of the legislative
history suggests that the disparity that Congress sought to eliminate did not stem from
the exercise of prosecutorial discretion." 

.

       The conclusion to be drawn from this panoply of cases is that "justified"
disparities–those resulting from the proper application of the Guidelines to each


                                          -9-
individual case–are not an appropriate basis for departure. 

.
However, unjustified disparities may warrant a departure.3 

              2.     Prosecutorial Authority to Enter Section 1B1.8 Agreements

        Determining whether the interdistrict disparity in prosecutorial practices in these
cases is justified turns upon prosecutorial authority. Only if the prosecutors do not
possess the authority to rarely agree to section 1B1.8 protection would that practice
result an improper application of the Guidelines, resulting in an unjustified disparity that
could be corrected through the departure power.4 In other words, the disparate and
unique practice of the Northern District of Iowa can only be the basis for a departure
under section 5K2.0 if the prosecutors have exceeded their authority or otherwise acted
"improperly" under the Guidelines. The scope of prosecutorial discretion is defined not
by reference to the practices of other federal districts, but by the Guidelines and
governing law.

      The district court relied heavily on United States v. Jones, 

(8th Cir.
1998). That case provides no independent basis for departure in these cases. In Jones
we considered a sentencing court's authority to depart based upon a disparity in
sentences among coconspirators. Of particular concern was the fact that principals in
the conspiracy could get substantially lower sentences than lesser members of the

       3
        In at least two instances, the Commission has amended particular guidelines to
respond, in part, to disparities in sentences that have resulted from prosecutorial
practices. See U.S.S.G. app. C, vol. I, amend. 365 & amend. 506. However, it is
unclear whether this is evidence that the Commission believes disparities arising from
varying exercises of prosecutorial discretion are generally unjustified, or whether
disparities are acceptable and the Commission will intervene to correct only those that
are not. Therefore, it ultimately does not help us in our interpretation of the Guidelines.
       4
        If the prosecutors have exceeded their authority, then the court could depart
even if there were no resulting disparity of sentences.

                                           -10-
conspiracy because of the interaction of plea-bargaining practices and the Guidelines.

We noted that, "[w]hile courts generally endorse this anomalous byproduct
of the [Guidelines], to the extent that the government's behavior directly results in
prejudice to a defendant, which is significant enough to take the case out of the
heartland of the Sentencing Guidelines, district courts have the discretion to grant an
appropriate downward departure." 

section 1B1.8 agreements (or
non-agreements), a defendant suffers prejudice significant enough to take the case out
of the heartland if the prosecution engages in some misconduct, abuses its discretion,
or otherwise acts improperly. Short of this, prosecutorial conduct concerning section
1B1.8 agreements cannot be a basis for departure.

      Thus, after separating the wheat from the chaff in this case, we are left with the
following question: is a general policy or practice of rarely granting section 1B1.8
protection within the government's proper exercise of prosecutorial discretion? We
begin with the language of the Guidelines. Section 1B1.8(a) provides:

      Where a defendant agrees to cooperate with the government by providing
      information concerning unlawful activities of others, and as part of that
      cooperation agreement the government agrees that self-incriminating
      information provided pursuant to the agreement will not be used against
      the defendant, then such information shall not be used in determining the
      applicable guideline range, except to the extent provided in the agreement.

Section 1B1.8(b) further specifies that the restriction does not apply in several
situations. Most notably, the court may rely on the protected information when it
determines whether, or to what extent, a downward departure is warranted under
section 5K1.1. U.S.S.G. § 1B1.8(b)(5). In contrast, a court may not use information
protected in a section 1B1.8 agreement to depart upward from the applicable guideline
range. U.S.S.G. § 1B1.8, cmt. n.1.




                                         -11-
       The government's discretion under this provision is extremely broad. The only
limit on the ability to enter a section 1B1.8 agreement is that the information provided
be about the activities of others. The guideline gives no indication about when, how
often, or under what circumstances the government should make such an agreement.
In In Re Sealed Case, the District of Columbia Circuit noted that the clause "upon
motion of the government" in U.S.S.G. § 5K1.1 is part of a "congressional tradition of
placing similar provisos in statutes that implicate issues of prosecutorial discretion and
judgment." 

, 132, 134 (D.C. Cir.) (en banc), cert. denied, 

(1999). We find the broad language contained in section 1B1.8 follows in that same
tradition. Thus, the most natural reading of section 1B1.8 is that the Commission
intended a decision about entering into agreements to be left to the prosecutor's
discretion.

        The Guidelines address prosecutorial discretion in several other places.
U.S.S.G. § 6B1.2, which governs the acceptance of plea agreements, states that a court
"may" accept an agreement dismissing charges (or agreeing not to pursue potential
charges) if the court determines that the remaining charges reflect the seriousness of the
defendant's conduct and the agreement does not undermine the Guidelines. The
commentary to 6B1.2 states that "[t]his requirement does not authorize judges to
intrude upon the charging discretion of the prosecutor." U.S.S.G. § 6B1.2, cmt. Also,
a court may control any "inappropriate" manipulation of the indictment power through
the use of its departure power. U.S.S.G. Ch. 1, Pt. A(4)(a). The implication of this
language is that the court may not use its departure power to interfere with the
prosecutor's legitimate use of its indictment authority. These provisions indicate that
"the Commission considered the effects that the exercise of prosecutorial discretion has
on the uniformity of sentences. The Guidelines allow sentencing courts to take certain
limited actions in narrow circumstances to address a prosecutor's inappropriate exercise
of discretion." 

.




                                          -12-
       Therefore, any disparities arising from appropriate prosecutorial practices (or
sentences resulting from those practices) are justified under the Guidelines. The
Commission obviously knew that such discretion could result in dissimilarity in the
practices and policies followed in different districts. Thus, disparities resulting from
proper exercises of the discretion by prosecutors cannot be said to be "unusual" or
"atypical" enough to warrant departure under section 5K2.0.

        Examining section 5K1.1 and cases interpreting its implications towards
prosecutorial discretion further supports this result.5 Section 5K1.1 provides: "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." We have held that under section 5K1.1, with
limited exceptions, the court cannot depart from the Guidelines based on the substantial
assistance of a defendant without a motion from the government. See United States v.
Wilkerson, 

, 1085 (8th Cir. 1999); see also In Re Sealed 

; United States v. Abuhouran, 

, 208 (3d Cir. 1998), cert. denied,

(1999).

       This court has thus far only found one limitation on the government's discretion
arising from the Guidelines in the section 5K1.1 context. In United States v. Anzalone,

(8th Cir. 1998), we held that the government cannot base its decision to
withhold a substantial assistance motion solely on factors unrelated to the quality of a
defendant's assistance. 

"Because sentencing is 'primarily a judicial function'
the prosecutor's virtually unfettered discretion under § 5K1.1 [to file a motion for
downward departure] is limited to the substantial assistance issue." 

        We recognize that section 5K1.1 and section 1B1.8 are very different in
language and in their placement in the Guidelines. However, examining section 5K1.1
is helpful as a general guide because there is substantial case law concerning how
courts have interpreted the interaction of the Guidelines with prosecutorial discretion.

                                          -13-
Mistretta v. United States, 

, 390 (1989)).6 In short because section 5K1.1
states, "upon motion of the government stating that the defendant has provided
substantial assistance," and because the commentary to that section notes that the
government shall inform the court of its evaluation of the defendant's assistance, the
government must base the decision about whether to file a section 5K1.1 motion, at
least in part, on an evaluation of the defendant's substantial help.

       As earlier noted, section 1B1.8 and its accompanying commentary contain no
language that would limit the prosecutor's discretion concerning when or how often to
enter into agreements to extend section 1B1.8 protection. It simply provides that (1)
where a defendant agrees to cooperate; and (2) the government agrees to not use self-
incriminating information arising out of the cooperation against the defendant; then (3)
such information cannot be used to determine the applicable guideline range. This
gives the government the power, but not the duty, to enter into any such agreement.
Cf. Wade v. United States, 

, 185 (1992) (stating section 5K1.1 gives
government power, but not duty, to make substantial assistance motion).

       Prosecutors do not possess completely unfettered discretion. For example, the
power of prosecutors to file a section 5K1.1 motion, like a prosecutor's other decisions,
are subject to constitutional constraints. 

prevent the government
from using race or religion or a reason not rationally related to a legitimate government
end as the basis for deciding whether or not to file a motion. 

. Additionally, just as a defendant may not expect section 1B1.8
protection if he violates the agreement, the government is similarly bound by any


      6
        We clarified in Wilkerson that the Anzalone decision was based largely on the
government conceding two key points: (1) that Anzalone could make a substantial
showing of substantial assistance; and (2) that the decision not to make a substantial
assistance motion was based entirely on a factor unrelated to Anzalone's assistance.

.

                                          -14-
agreement entered into. Cf. United States v. Johnson, 

(8th Cir. 2001)
(stating that an agreement between a prosecutor and a defendant that in any way
induces the defendant to enter a plea creates duties that the government must satisfy);
United States v. Maldonado-Acosta, 

, 1183 (10th Cir. 2000) (stating that
a district court may examine the government's discretionary refusal to file a section
5K1.1 substantial assistance motion if that refusal violates an agreement between the
government and the defendant). However, these constraints on the prosecutor originate
not from the Guidelines, but rather from constitutional or contract principles. In Re
Sealed 

. Such limitations on government conduct apply equally
in the section 1B1.8 context. Allegations of violations on these grounds are subject to
the same substantial threshold showing as would be required in the section 5K1.1
context under 

. No such allegation or evidence has been
produced in this case.

      D.     Prosecutorial Discretion

       The Supreme Court has noted that "[i]n our criminal justice system, the
Government retains "broad discretion" as to whom to prosecute." Wayte v. United
States, 

, 607 (1985) (quoting United States v. Goodwin, 

,
380, n.11 (1982)). This discretion partially rests on the "recognition that the decision
to prosecute is particularly ill-suited to judicial review." 

as the
strength of the case, the prosecution's general deterrence value, the Government's
enforcement priorities, and the case's relationship to the Government's overall
enforcement plan are not readily susceptible to the kind of analysis the courts are
competent to undertake."7 

applying these principles courts have concluded that a prosecutor's decisions
about whether to proceed in federal court or District of Columbia court, United States
v. Clark, 

, 843 (D.C. Cir. 1993), and a prosecutor's decisions about whom
to bring charges against in federal court, United States v. Snyder, 

, 70 (1st

                                         -15-
       The Guidelines were not meant to infringe upon the usual discretion of the
executive branch, United States v. Deitz, 

, 448 (8th Cir. 1993), and
contemplating judicial review of prosecutorial decisions about extending section 1B1.8
protection in these cases convinces us that this same rationale should apply. As we
have noted, the Guidelines say nothing about how often section 1B1.8 immunity should
be granted. Faced with a disparity in prosecutorial policy between the Northern and
Southern Districts of Iowa, courts have no way of knowing which prosecutor's office
is reaching an agreement the proper number of times. If a court begins granting
departures based upon an interdistrict disparity in practices concerning section 1B1.8
protection, how will it know when it has corrected the mistake? Must the prosecutors
in the Northern District begin agreeing to section 1B1.8 protection at the same rate as
the Southern District? Or, should it be done according to some national average that
the court could compute? Is agreeing to section 1B1.8 protection in ten or twenty or
thirty percent of the cases enough?

       Considering the various permutations and possibilities of departures on these
grounds persuades us that any effort to police this area would improperly infringe upon
the discretion of the prosecutor's office to determine enforcement priorities, resource
allocations, and other decisions which courts are institutionally unsuitable to make.
The overriding goal of uniformity sought through the use of the Guidelines cannot give
sentencing courts carte blanche to intrude upon the authority of prosecutors in this
instance.




Cir. 1998), are not appropriate grounds for departure.

                                         -16-
      E.     Other Claims

             1.     Clark

       The government appeals the district court decision to compel an 18 U.S.C. §
3553(e) motion to depart below the statutory mandatory minimum sentence in Clark's
case. Subject to limited exceptions, a sentencing court may not depart below the
mandatory minimum sentence absent motion by the government; however, this does not
give the government a general power to control the length of sentences. United States
v. Stockdall, 

, 1260-61 (8th Cir. 1995); see also 

(reaffirming Stockdall and extending its rationale to U.S.S.G. § 5K1.1).

       This issue arose at Clark's sentencing as a result of the district court's perceived
authority to depart downward based on the disparate availability of section 1B1.8
protection. Because the district court did not possess the authority to depart on the
basis of 1B1.8 differences and we are remanding for a new sentencing, the factual
circumstances concerning a mandatory minimum sentence are altered considerably.
Therefore, it is unnecessary to further address the issue in this appeal.

             2.     Johnson

      Johnson asserts that the false statements he made at his suppression hearing
should not qualify for a two-level obstruction enhancement because they were not
"material." He also argues that he should have received a downward adjustment for
acceptance of responsibility.

       After thoroughly reviewing the briefs and the record, we affirm the district
court's imposition of the enhancement for obstruction of justice and refusal to grant a
downward adjustment for acceptance of responsibility. See 8th Cir. R. 47B.

                                           -17-
III.   CONCLUSION

       In accordance with this opinion, we overrule those portions of the district court's
opinion finding it had authority to depart from the Guidelines based on the disparity in
practices regarding section 1B1.8 protection in the Northern and Southern Districts of
Iowa. We affirm the sentences of Ringis, Buckendahl, Valdivia-Cardona, and Johnson
.

       The district court improperly departed downward from a base offense level of
36 to 28 in determining Clark's sentence. We reverse and remand Clark's case for re-
sentencing in accordance with this opinion.

HEANEY, Circuit Judge, dissenting.

       I agree that the sentences for Buckendahl, Ringis, Johnson, and Valdivia-
Cardona should be affirmed for the reasons stated in the majority’s opinion. I disagree
with the majority, however, with regard to Clark, and for that reason I respectfully
dissent. The Northern District of Iowa’s denial of § 1B1.8 protection to Clark resulted
in an increase in his base offense level from 28 to 36, yielding significant prejudice to
him. Accordingly, I would affirm the downward departure granted to Clark by the
district court.

      The goal of the Guidelines was to eliminate disparity in sentencing. Then-Chief
Judge Breyer explained that the Commission’s research in sentencing disparity showed
that “the region in which the defendant is convicted is likely to change the length of
time served from approximately six months more if one is sentenced in the South to
twelve months less if one is sentenced in Central California.” Stephen Breyer, The
Federal Sentencing Guidelines and the Key Compromises upon Which They Rest, 17
Hofstra L. Rev. 1, 4 (1988). Regrettably, there is as much regional disparity in
sentencing now as there was prior to the creation and enactment of the Sentencing

                                          -18-
Commission and Guidelines. The origin of that disparity, however, has shifted from
the judiciary to politically appointed prosecutors. Clark’s circumstances are a perfect
example of this phenomenon.

      The Northern District of Iowa has a blanket policy of refusing to grant eligible
defendants § 1B1.8 protection, while its sister district to the south routinely provides
such protection, as do the majority of the ninety-four federal districts in the nation.
This policy has the effect of forcing defendants to serve the mandatory minimum
sentence, or increasing the sentences of defendants who incriminate themselves when
providing the government with information about the unlawful conduct of others.
Similarly situated defendants in the Northern and Southern Districts of Iowa are
sentenced differently due to prosecutorial discretion.

       The majority asserts that Congress was unconcerned with disparity in sentencing
arising from the exercise of prosecutorial discretion. I believe otherwise, and Judge
William W. Wilkins supports my conclusion. He writes that the Guidelines system
provides “protections against the possibility of prosecutors’ undue influence through
charging and other plea practices.” Response to Judge Heaney, 29 Am. Crim. L. Rev.
795, 798 (1992). Furthermore, he implies that any discretion in sentencing that
prosecutors may have gained with the implementation of the Guidelines results from
the courts’ abdication of its own authority to control the fairness of, and perhaps the
availability of, plea bargains. 

True to Judge Wilkins’s admonition, the
majority has sabotaged the judiciary’s duty to ensure fair and appropriate sentencing
by authorizing prosecutors in the Northern District of Iowa to uniformly increase the
time served by defendants who are eligible for leniency in sentencing.

      It is essential that prosecutors fulfill their duties in a manner which best furthers
the government’s interests. Congress has explicitly stated that § 1B1.8 facilitates this
endeavor; such protection is requisite to the promotion of justice. It goes without
saying that a prosecutor can decide in an individual case that he or she is not going to

                                           -19-
request a downward departure. However, neither the prosecutor nor the district court
has the right under a sentencing guidelines regime to uniformly refuse to apply a section
of the Guidelines that the Commission has deemed important.

       The disparity in sentencing that results from the Northern District of Iowa’s
blanket denial of § 1B1.8 protection is every bit as offensive as the judicial discretion
that Congress so vehemently rejected when it created the Guidelines. If we must live
with the Guidelines and their policy objectives, we must insist upon an even-handed
application of them. I would therefore affirm the district court’s downward departure.

      A true copy.

             Attest:

                 CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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