DEBORAH K. CHASANOW, United States District Judge
Defendant pleaded guilty, pursuant to a written plea agreement, to the charge of conspiracy to distribute and possess with intent to distribute at least 28 grams of cocaine base, which carries a mandatory minimum sentence of five years imprisonment. In exchange for Defendant’s agreement to cooperate in the investigation or prosecution of others, the Government agreed to make a motion pursuant to U.S.S.G. § 5K1.1 and 18 U.S.C. § 3553(e), requesting a departure of up to two levels. Defendant is free to seek a greater departure.
The defense filed sentencing memoranda in which it appeared to seek a sentence below the mandatory minimum based on factors articulated in 18 U.S.C. § 3553(a), i.e., those unrelated to Defendant’s cooperation. In response, the court invited counsel to distinguish United States v. Martin, 496 Fed.Appx. 336, 337 (4th Cir. 2012), a recent unpublished opinion in which the Fourth Circuit reiterated that:
“in determining the extent of a departure below a statutory minimum a district court should look [solely] to the substantial assistance factors listed in [U.S.S.G.] § 5K1.1(a) . . . and other factors related to that assistance.” United States v. Hood, 556 F.3d 226, 234 n. 2 (4th Cir. 2009) (internal citation omitted); see also United States v. A.B., 529 F.3d 1275, 1285 (10th Cir. 2008) (holding that district court did not have authority to depart any further below statutory minimum after granting § 3553(e) motion and could not consider § 3553(a) factors); United States v. Williams, 474 F.3d 1130, 1130–31 (8th Cir. 2007) (holding that district court may look only to § 3553(e) in going below statutory minimum and not to factors listed in § 3553(a)).
Defendant then filed an additional memorandum arguing that all of the § 3553(a) factors may be considered in sentencing under these circumstances, relying primarily upon United States v. Davis, 679 F.3d 190 (4th Cir. 2012).
Defendant’s position reflects a misunderstanding of the state of the law and the import of the Davis opinion, and suggests the need to clarify the procedures applicable to substantial assistance departures under § 3553(e). That statute provides:
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.
18 U.S.C. § 3553(e). Notably, this language differs from that set forth in Fed.R.Crim.P. 35(b) – which provides, in (b)(4), that “[w]hen acting under Rule 35(b), the court may reduce the sentence to a level below the minimum sentence established by statute” – and 18 U.S.C. § 3553(f) – the safety valve provision, which states, in pertinent part, that the court shall impose sentence “without regard to any statutory minimum sentence.”
In United States v. Pillow, 191 F.3d 403, 407 (4th Cir. 1999), the Fourth Circuit explained:
As the plain language of the statute makes clear, § 3553(e) allows for a departure from, not the removal of, a statutorily required minimum sentence. See Melendez v. United States, 518 U.S. 120, 128, 116 S.Ct. 2057, 135 L.Ed.2d 427 (1996) (describing § 3553(e) motion as a departure). That the resulting “sentence” must be imposed in accordance with the Sentencing Guidelines and policy statements does not mean, as Pillow contends, that the resulting sentence becomes the guideline sentence and, therefore, the starting point for the § 5K1.1 departure. Rather, the phrase simply means that the district court’s discretion in choosing a sentence after the Government moves to depart below the statutorily required minimum sentence is constrained by the Sentencing Guidelines and policy statements. Specifically, the district court should use the factors listed in § 5K1.1(a)(1)-(5) as its guide when it selects a sentence below the statutorily required minimum sentence. See Melendez, 518 U.S. at 129 & n. 10, 116 S.Ct. 2057 (noting that the Application Notes to the Sentencing Guidelines suggest that a district court should consider the § 5K1.1(a) factors in determining the extent of a departure below the statutorily required minimum sentence).
The court later reiterated that finding, and drew support from decisions in other circuits, in United States v. Hood, 556 F.3d 226, 234 n. 2 (4th Cir. 2009):
We have previously held, however, that in determining the extent of a departure below a statutory minimum a district court should look to the substantial assistance factors listed in U.S.S.G. § 5K1.1(a) United States v. Pillow, 191 F.3d 403, 407 (4th Cir. 1999). Moreover, the weight of authority in other circuits undercuts Hood’s contention; in short, the extent of a § 3553(e) departure is based solely on the defendant’s substantial assistance and other factors related to that assistance. See United States v. Richardson, 521 F.3d 149, 159 (2d Cir. 2008) (“When . . . the Guidelines sentence ends up as the statutory minimum, both the decision to depart and the maximum permissible extent of this departure below the statutory minimum may be based only on substantial assistance to the government and on no other mitigating considerations”); United States v. Williams, 474 F.3d 1130, 1130-31 (8th Cir. 2007) (“Where a court has authority to sentence below a statutory minimum only by virtue of a government motion under § 3553(e), the reduction below the statutory minimum must be based exclusively on assistance-related considerations”); United States v. Desselle, 450 F.3d 179, 182 (5th Cir. 2006) (“We thus join the majority of circuits in holding that the extent of a . . . § 3553(e) departure must be based solely on assistance-related concerns”); United States v. Auld, 321 F.3d 861, 867 (9th Cir. 2003) (“[I]n fixing a substantial assistance departure . . . [t]he district court may not . . . consider factors unrelated to the defendant’s assistance”).
The uniformity of the circuit courts in this regard has continued unabated:
We note that every circuit court of appeals to address the issue we face today has held that a court may not use factors unrelated to a defendant’s assistance to the government in reducing the defendant’s sentence below the statutory minimum. See [United States v.] Johnson, 580 F.3d [666, ] 673 [(7th Cir. 2009)]; United States v. Jackson, 577 F.3d 1032, 1036 (9th Cir. 2009); United States v. Burns, 577 F.3d 887, 894 (8th Cir. 2009) (en banc); United States v. Hood, 556 F.3d 226, 234 n. 2 (4th Cir. 2009); A.B., 529 F.3d at 1280–83; United States v. Richardson, 521 F.3d 149, 159 (2d Cir. 2008); United States v. Mangaroo, 504 F.3d 1350, 1355–56 (11th Cir. 2007); Williams, 474 F.3d at 1132; United States v. Desselle, 450 F.3d 179, 182 (5th Cir. ...