Craig Thorstenson v. Gale Norton

1The Honorable Mark W. Bennett, Chief Judge, United States District Court for
the Northern District of Iowa.
United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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Nos. 04-2901/04-2933
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United States of America, *
*
Appellant/Cross-Appellee, *
* Appeal from the United States
v. * District Court for the Northern
* District of Iowa.
Travis Ray Burns, *
*
Appellee/Cross-Appellant. *
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Submitted: May 10, 2005
Filed: February 16, 2006
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Before WOLLMAN, BRIGHT, and BYE, Circuit Judges.
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BYE, Circuit Judge.
The United States appeals arguing the district court's 1 sixty percent downward
departure was excessive. Travis Ray Burns cross-appeals arguing the district court
erred in determining the starting point for its departure. We affirm.

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I
Burns was indicted on one count of conspiracy to manufacture and distribute
fifty grams or more of methamphetamine in violation of 21 U.S.C. §§ 841(a)(1),
841(b)(1)(A) and 846. The government notified Burns it intended to seek enhanced
penalties under 21 U.S.C. § 851, making him subject to a mandatory life sentence.
Absent the § 851 enhancement, Burns faced a sentencing range of 188 to 235 months.
Burns cooperated and in return the government agreed to move for a downward
departure under United States Sentencing Guidelines (U.S.S.G.) § 5K1.1 and 18
U.S.C. § 3553(e).
At sentencing, the government explained Burns immediately admitted his
involvement and debriefed on two separate occasions, providing detailed information
on several groups involved in manufacturing methamphetamine. Burns testified twice
before the grand jury, and provided information in several ongoing investigations. His
cooperation assisted the government in establishing drug quantity evidence against
Brad Messerly, and he was a key witness against Victor DeFoe, thereby enabling the
government to obtain an indictment which led to his plea of guilty. The government
characterized Burns's cooperation as timely, truthful and complete, and recommended
a fifteen percent departure from a 360 month sentence.
The district court rejected the government's recommendation and departed sixty
percent to 144 months. The court summarized its consideration of the § 5K1.1 factors
as follows:
I’m going to use 360 months as a starting point. In this case I
specifically find under the 5K1.1 factors, factor number 5, the timeliness
of the defendant's assistance, the defendant was exceptionally timely in
this case. My understanding is he started cooperating as soon as he was
arrested. To me that's exceptional timeliness. While some defendants
start that early, virtually no defendants start earlier than that . . . .

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So I find that his timeliness was exceptional and apparently started
cooperating before he was advised of the impact of the United States
Sentencing Guidelines, before he knew anything about how the
guidelines might affect his sentence, before he exercised his Sixth
Amendment right to have counsel present. So I think in this case the
fifth factor weighs very heavily in favor of the defendant . . . .
Number 4 does not apply, any injury suffered or danger of risk because
I haven’t heard anything about that.
Number 3, the nature and extent of the defendant's assistance, in this case
based on the representations of the assistant U.S. attorney, I find that the
defendant provided every single bit of information he knew, so you
couldn't – the extent of the defendant's assistance could not be greater in
the sense that he provided all of the information he knew.
Now, it's true that some defendants have greater information which leads
to indictments of more people. But I don't think that's necessarily the
test. I think the test is did the defendant provide substantial assistance
on everything he knew, and in this case he did. So the defendant scores
very highly on the third prong.
Defendant scores very highly on the second prong, truthfulness,
completeness, and reliability of the information. There's no information
that the defendant's substantial assistance was anything but a hundred
percent complete, a hundred percent truthful, and a hundred percent
reliable. So Mr. Burns scores very highly on the second prong.
On – the first prong is the Court's evaluation of significance and
usefulness of the defendant's usefulness taking into consideration the
government's evaluation of the assistance rendered. Here the
government has indicated that the defendant testified twice in front of the
grand jury, that he established the drug quantity on one defendant and
led to the indictment and guilty plea of another defendant. I find that
that was both very significant and very useful.
Now for some reason which the government refuses to disclose, they
only recommend 15 percent, but they won't tell me why they only

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recommend 15 percent. And the government refuses to indicate how any
one of the five 5K1.1 factors affect the 15 percent recommendation.
So while I do take into consideration the government's evaluation of the
significance and usefulness, it's hard to put any weight on the 15 percent
recommendation because the government refuses to disclose how they
arrive at that recommendation.
And looking back on the other sentencings that I’ve had, that
recommendation is in my view substantially lower than other
recommendations the government has made for similarly situated
defendants.
Having said all that, I have the independent right under 5K1.1 to evaluate
the substantial assistance based on the 5K1 factors as I see it.
Having taken into consideration the fact that the defendant scores very,
very highly on the second factor, the third factor, and the fifth factor, I’m
going to reduce the defendant's sentence substantially beyond what the
government recommends in this case. That ought to come as no surprise
to the government because I have a ten-year history of doing that
because I just evaluate the five factors differently than – than how the
government does, and the government refuses to disclose how they do
it to me.
Sent. Tr. at 12-15.
On appeal, the government argues the district court ignored its recommendation
for a fifteen percent departure, and the court's sixty percent departure was excessive
in light of Burns's assistance. Burns cross-appeals arguing the district court should
have departed from the 188 to 235 month guideline range instead of from the 360-
month presumptive life sentence.

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II
At sentencing, a district court must determine the appropriate guideline
sentencing range, including whether "a traditional departure is appropriate under
. . . the Federal Sentencing Guidelines." United States v. Haack, 403 F.3d 997, 1002-
03 (8th Cir.), cert. denied, 126 S. Ct. 276 (2005). "Once the guidelines sentence is
determined, the court shall then consider all other factors set forth in [18 U.S.C.]
§ 3553(a) to determine whether to impose the sentence under the guidelines or a non-
guidelines sentence." Id. at 1003. On appeal, we review the district court's
interpretation and application of the guidelines de novo and any departure from the
guideline range for an abuse of discretion. United States v. Mashek, 406 F.3d 1012,
1017 (8th Cir. 2005). If we conclude the guidelines were properly employed, we
"review [the] sentence for unreasonableness, guided by the sentencing factors listed
in 18 U.S.C. § 3553(a)." United States v. Pizano, 403 F.3d 991, 995 (8th Cir. 2005).
The parties agree Burns was subject to a mandatory life sentence. Thus, there
is no dispute as to the appropriate guideline range. Similarly, inasmuch as the
government moved for a downward departure, it concedes the district court acted
within its discretion in concluding a departure was appropriate. Nevertheless, the
government contends the district court's departure was excessive in light of its
recommended fifteen percent departure.
"Upon motion of the government stating that the defendant has provided
substantial assistance in the investigation or prosecution of another person . . . the
court may depart from the guidelines." U.S.S.G. § 5K1.1. The commentary to §
5K1.1 requires "substantial weight" be given to the government's evaluation of the
extent of the assistance. U.S.S.G. § 5K1.1 cmt. n.3. The government's
recommendation is not, however, controlling and ultimately the district court
determines the appropriate reduction. Haack, 403 F.3d at 1005; see also U.S.S.G. §
5K1.1(a). In deciding the appropriate reduction, "[a] recommendation by the

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government that does not adequately explain its reasoning is entitled to less weight
. . . than a more fully explained recommendation." Haack, 403 F.3d at 1005 n.2.
To depart, a court must have "reasons" that shall be "stated." See 18 U.S.C.
§ 3553(c); U.S.S.G. § 5K1.1(a). The § 5K1.1 factors which the district court must
consider are not, however, an "'exhaustive list,' and the district court is not required
'to examine each of the listed factors in § 5K1.1 on the record and explain exactly just
what weight it gives to each in its departure decision.'" United States v. Dalton, 404
F.3d 1029, 1033 (8th Cir. 2005) (citations omitted). When exercising its sentencing
discretion, a district court abuses its discretion when it
fails to consider a relevant factor that should have received significant
weight, gives significant weight to an improper or irrelevant factor, or
considers only appropriate factors but nevertheless commits a clear error
of judgment by arriving at a sentence that lies outside the limited range
of choice dictated by the facts of the case.
Haack, 403 F.3d at 1004.
The government contends the district court abused its discretion by failing to
adopt its recommendation for a fifteen percent downward departure. It further
contends the district court offered insufficient explanation for its sixty percent
departure. We disagree. Indeed, viewing this record, it is the government that was
unable, despite repeated invitations from the district court, to offer any explanation for
its position. Conversely, the record demonstrates the district court seriously
considered the government's recommendation before arriving at its own evaluation of
the significance and usefulness of Burns's assistance. The court carefully evaluated
the § 5K1.1 factors and provided a detailed explanation for the sentence. It noted
Burns's cooperation began immediately upon his arrest – even before he exercised his
right to counsel or was aware of the impact the Sentencing Guidelines would have on
his sentence. His cooperation included two appearances as a key witness before the

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grand jury and his testimony proved drug quantity against one defendant and led to
the indictment and guilty plea of another. Additionally, the government indicated
Burns had provided information about other individuals which it hoped would lead
to other charges, and characterized his cooperation as timely, truthful and complete.
In arriving at our decision today, we are guided by this court's earlier decisions
in Dalton, Haack, and Pizano. In Dalton, we concluded the district court's seventy-
five percent downward departure was unreasonable because the defendant 1) provided
only corroborative testimony before the grand jury, 2) did not implicate a large
number of people, 3) did not serve as a primary government witness against anyone,
and 4) absconded from custody while on pretrial release. 404 F.3d at 1033. In Haack,
we reversed a significant downward departure (fifty-seven percent), finding it
unreasonable in light of the defendant's limited assistance. 403 F.3d at 998. There,
the defendant made incriminating statements when he was first arrested which helped
officers obtain a search warrant. Id. at 999. For several months thereafter, however,
the defendant refused to cooperate. When he finally did cooperate, his information
was of limited use to the government and he was not available to provide useful grand
jury testimony. Id. at 1005. Finally, we expressed reservations about comments the
district court made at sentencing suggesting the departure may have been based in part
on the court's dissatisfaction with the sentencing guidelines. Id. at 1006; see also
United States v. Saenz, 428 F.3d 1159, 1163 (8th Cir. 2005) (reversing a downward
departure where the defendant only testified as a corroborating witness at a sentencing
hearing).
Unlike Dalton and Haack, we find no basis in this case for concluding the
district court abused its discretion. Burns began his cooperation immediately and
continued to cooperate through sentencing. He offered key grand jury testimony and
provided detailed information about several groups who were manufacturing
methamphetamine. Most notably, his cooperation was not diminished by the kind of
lapse in judgment demonstrated in Dalton. Nor was his sentencing marred by any

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suggestion the district court took into account an improper or irrelevant factor. As
such, this case is more like the seventy-five percent downward departure upheld in
Pizano, where the defendant began his cooperation immediately, supplied grand jury
testimony against a major figure in the conspiracy, and put himself at risk. 403 F.3d
995-96; cf. United States v. Coyle, 429 F.3d 1192, 1192-93 (8th Cir. 2005).
We conclude the district court's departure was not an abuse of discretion. In
light of Burns's substantial cooperation, the 144-month sentence reflects a serious
offense, promotes respect for the law, provides just punishment, deters criminal
conduct, and protects the public from further crimes. See 18 U.S.C. § 3553(a)(2)(A)-
(C). Based on these § 3553(a) factors, we conclude Burns's 144-month sentence was
not unreasonable.
Finally, we reject Burns's cross-appeal arguing the district court departed from
the wrong guideline range. Burns concedes he was subject to a mandatory life
sentence. Nevertheless, he argues the government's substantial assistance motions
"waived" the mandatory life sentence, leaving the district court with a sentencing
range of 188 to 235 months from which to depart. We reject this argument as being
without merit. The government's substantial assistance motion did not negate the
§ 851 enhancement that made Burns eligible for a life sentence. Rather, it permitted
the district court to sentence below the mandatory life sentence. Thus, the district
court properly departed from a presumptive life sentence of 360 months.
III
The judgment of the district court is affirmed.

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WOLLMAN, Circuit Judge, concurring and dissenting.
I concur in the court’s holding that the district court did not err in basing its
departure point at 360 months.
I dissent, however, from the affirmance of the 60 percent departure from the
360-month guidelines range for the reasons set forth in Judge Colloton’s opinion for
the court in United States v. Saenz, 428 F.3d 1159 (8th Cir. 2005).
I start with the proposition that “[a]n extraordinary reduction must be supported
by extraordinary circumstances.” Saenz, 428 F.3d at 1162 (quoting United States v.
Dalton, 404 F.3d 1029, 1033 (8th Cir. 2005)). Here, although Burns’s assistance to
the government was not insubstantial, it cannot fairly be considered as extraordinary.
His assistance helped the government secure the indictment of one individual and
helped establish drug quantity with respect to another individual. Moreover, there was
no evidence that Burns’s assistance caused any injury to himself or placed him in any
danger. Likewise, the fact that Burns gave the government all the information he had
alone does not render his assistance extraordinary. Although Burns started cooperating
during his post-arrest debriefing, the government points out, without any challenge to
this assertion, that many defendants divulge information shortly after arrest, so it is
hard to see how the timeliness of Burns’s cooperation can fairly be characterized as
extraordinary.
That the district court refused to give significant weight to the government’s
recommendation of a 15 percent reduction because of its refusal to disclose how it had
reached that determination does not by itself render suspect the court’s reduction,
Saenz, 428 F.3d at 1164. There is no indication in the record that the district court’s
decision to reduce the sentence was the result of judicial pique over what it might have
considered prosecutorial intransigence. District judges after all are not minions of the

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prosecutor’s office. By the same token, United States attorneys are not subalterns of
the district court.
The governing factor for me in this case is the overarching principle set forth
in Saenz:
Departures under § 5K1.1 and reductions under § 3553(e) should not be
untethered from the structure of the advisory guidelines. They take
place, rather, within the framework of an advisory guideline scheme
designed to reduce unwarranted sentence disparities among similar
defendants.
428 F.3d at 1162.
Accordingly, neither prosecutors nor district courts should yield to the
temptation of indulging in solipsistic preferences in recommending and imposing
sentences. Advisory though they may be, the guidelines stand as guideposts that are
to be observed if we are not to see a return to the instances of unwarranted disparity
the prevention of which led to the adoption of the guidelines themselves. As
deferential to the considered, on-the-scene views of the district court as we appellate
judges appropriately should be, nevertheless we have a responsibility to ensure that
the guidelines are observed as advisory in practice and not merely in word.
When viewed in the light of Saenz’s overarching principle, I must conclude
that, even after giving due respect to the carefully considered views of a district judge
who has had the experience of sentencing untold defendants over the years, the 60
percent reduction in this case was excessive in light of the relative insubstantiality of
Burns’s assistance. Accordingly, I would vacate the sentence and remand the case for
resentencing in accordance with the views set forth in Saenz and the cases cited
therein.
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