1 I n our prior opinion, we relied on and adopted th e D.C.

Circuit’s opinion in In re Sealed Case

, 149 F.3d 1198 ( D.C. Cir.

1998), vacated in part by 159 F.3d 1362 (D.C. Cir. 1998). The D.C.

Circuit vacated the relevant part of its opinion and reheard the

case en banc but has not yet released its en banc opinion. UNITED STATES COURT OF APPEALS

For the Fifth Circuit

No. 97-20273

UNITED STATES OF AMERICA,

Plaintiff - - Appellant,

VERSUS

RUMALDO SOLIS,

Defendant - Appellee.

Appeal from the United States District Court

for the Southern District of Texas

March 8, 1999

Before SMITH, DUHÉ, and WIENER, Circuit Judges.

DUHÉ, Circuit Judge:

The United States asks us to reconsider and vacate our opinion

in United States v. Solis

, 161 F.3d 281 (5t h Cir. 1998). Upon

reconsideration, we vacate our prior opinion and substitute the

following. 1

BACKGROUND

The United States (“Government”) appeals the district court’s

decision to depart downward five levels based on Rumaldo Solis’s2

(“Solis”) assistance to the prosecution and to sentence him at

offense level 32. The Government contends that Solis should have

been sentenced at offense level 35.

Solis is a former Immigration and Naturalization Inspector who

was involved in a major drug conspiracy through which cocaine and

marijuana were imported into the Un ited States. Solis provided

drug traffickers with information on law enforcement activities and

also served as a narcotics broker. He pled guilty pursuant to a

plea agreement which provided that the Government would move for a

downward departure under U.S.S.G. § 5K1.1 if it determined that he

provided substantial assistance.

Prior to sentencing, the Government indicated that it would

not move for a downward departure. Solis moved for a safety valve

adjustment under U.S.S.G. § 5C1.2. Despite the Government’s

refusal to make a § 5K1.1 motion, the district court granted Solis

a five-level downward departure. In granting the adjustment, the

court stated that although it did not know what questions were

asked or what information was sought from Solis, it appeared from

the affidavit submitted in support of his motion that discussions

occurred in many areas relevant to the investigation, sufficient to

establish substantial assistance.

The Government unsuccessfully objected to the court’s

application of § 5C1.2, arguing that it did not allow the court to

depart from the Sentencing Guidelines (“Guidelines”). Contending

tha t the district court should have granted only a two-level2 It is undisputed that Solis was entitled to a two-level

reduction under U.S.S.G. § 2D1.1(b)(6) because he met the criteria

set forth in § 5C1.2.

3 reduction under U.S.S.G. § 2D1.1(b)(6), the Government appeals.

DISCUSSION

We review a district court’s findings of fact for clear error

and its application of the Sentencing Guidelines de novo

. United

States v. Stevenson , 126 F.3d 662, 664 (5th Cir. 1997). Downward

departures under U.S.S.G. § 5K2.0 are reviewed for abuse of

discret ion. See United States v. Lugman

, 130 F.3d 113, 115 (5th

Cir. 1997), cert. denied

, 118 S.Ct. 1855 (1998)(citing Koon v.

United States

, 116 S.Ct. 2035, 2047 (1996)). Section 5K2.0 allows

courts to depart from the applicable Guideline range under certain

circumstances. A sentence will be upheld on review unless it was

“imposed in violation of law; imposed as a result of incorrect

application of the sentencing guidelines; or outside the range of

the applicable sentencing guideline and is unreasonable.” United

States v. Garcia , 962 F.2d 479, 480-81 (5th Cir. 1992).

The district court granted Solis a five-level downward

departure pursuant to § 5C1.2. “[Section] 5C1.2 is a ‘safety

valve’ provision whic h allows qualified defendants to escape the

applicable statutory minimum sentence.” U.S. v. Edwards , 65 F.3d

430, 433 (5th Cir. 1995). In this case, however, the Guideline

range is higher than the statutory minimum and, thus, § 5C1.2 does

not apply. 2 Therefore, it was error for the district to depart4

from the Guidelines pursuant to § 5C1.2. S ee U.S. v. Flanagan

, 80

F.3d 143, 147 n.4 (5th Cir. 1996).

Because the district cour t misapplied § 5C1.2, a “remand is

appropriate unless [we] conclude[], on the record as a whole, that

t he error was harmless, i.e

., that the error did not affec t the

district court’s selection of the sentence imposed.” Williams v.

U.S. , 112 S.Ct. 1112, 1120-21 (1992). For the following reasons,

we conclude that the district court’s error affected the sentence

imposed and, therefore, vacate and remand.

The se ntencing transcript shows that the downward departure

was largely based on Solis’s assistance to the Government. The

court noted that, according to the Defendant’s affidavit, Solis was

debriefed on four occasions on a substantial number of topics.

Concluding that these debriefings covered topics that were relevant

to the investigation, the court granted the defense motion for a

five-level downward departure.

“Absent a motion for downward departure made by the

Government, a sentencing court is without authority to grant a

downward departure on the basis of substantial assistance under §

5K1.1.” U nited States v. Price

, 95 F.3d 364, 367 (5th Cir. 1996);

see also Wade v. United States

, 112 S.Ct. 1840, 1843 (1992)

(stating that “upon motion of the [G]overnment” is a condition

limiting the court’s authority to depart under § 5K1.1).

Similarly, in Melendez v. United States , 116 S.Ct. 2057, 20635

(1996), the Supreme Court read § 5K1.1 as “permitting the district

court to depart below the Guidelines range when the Government

states that the defendant has provided substantial assistance and

requests or authorizes the district court to depart below the

Guidelines range.”

“[Section] 5K1.1 does not require the [G]overnment to move for

a downward departure if the defendant provides substantial

assistance, but rather grants the [G]overnment discretionary power

to make such a motion.” United States v. Garcia-Bonilla , 11 F.3d

45, 46 (5th Cir. 1993). There are two limitations on the

Government’s discretion. First, a district court may review the

Gover nment’s refusal to move for a downward departure if the

refusal is based on an unconstitutional motive. S ee Price

, 95 F.3d

at 368. Second, “the [G]overnment may bargain away its discretion

under the terms of a plea agreement, and thereby obligate itself to

move for a downward departure in exchange for the defendant’s

substantial assis tance.” I d. Neither of these exceptions is

applicable to the case at bar. The Government retained sole

discretion over its decision whether or not to make a § 5K1.1

motion, and Solis has not alleged that the Government’s refusal to

do so was for unconstitutional reasons.

Solis argues that the district court had the authority to

depart from the Guidelines under § 5K2.0 even though the Government

refused to make a § 5K1.1 motion. Under § 5K2.0, a sentencing

court:6

[M]ay impose a sentence outside the range established by

the applicable guideline, if the court finds “that there

exists an aggravating or mitigating circumstanc e of a

kind or to a degree, not ade quately taken into

consideration by the Sentencing Commission in formulating

the guidelines that should result in a sentence different

from that described.”

U.S.S.G. § 5K2.0 (quoting 18 U.S.C. § 3553(b)). We conclude that

a district court has no more authority to depart for substantial

assistance under § 5K2.0 that it has under § 5K1.1.

In United States v. Abhouran

, 161 F.3d 206, 213 (3rd Cir.

1998), the Third Circuit considered whether § 5K2.0, as interpreted

by Koon

, gives a district court any additional authority to

consider a downward departure for substantial assistance in cases

where the Government refuses to file a § 5K1.1 motion. The court

noted that “[a] distr ict court cannot consider a factor already

taken into account in the Guidelines unless ‘the factor is present

to an exceptional degre e or in some other way makes the case

different from the ordinary case where the factor is present.’” Id.

at 213-14 (quoting Koon v. United States

, 116 S.Ct. 2035, 2045

(1996)). Reasoning that substantial assistance is taken into

account by the Guidelines in § 5K1.1, the court con cluded that a

district court may depart on the basis of substantial assistance

under § 5K2.0 only in cases where a departure without a Government

motion is permitted under § 5K1.1. See id. The court stated:

The heartland of § 5K1.1 is where the defendant

substantially assists the [G]overnment. We think that

the only cases falling outside this heartland are those

cases in which the [G]overnment improperly--either

because it has an unconstitutional motive or because it3 In Ab houran , the court noted that, even when the Government

retains “sole discretion” over whether or not to offer a § 5K1.1

motion, district courts may depart in cases where the Govern ment

refuses to offer the motion in bad faith. A bhour an , 161 F.3d at

212. We disagree with this portion of the court’s opinion. In

cases “where the plea agreement expressly states that the

government retains ‘sole discretion’ over the decision as to

whether or not to submit a motion, we have held that a refusal to

do so is reviewable only for unconstitutional motive.” Price , 95

F.3d at 368.

7 has acted in bad faith with regard to a plea agreement--

refuses to offer a motion, and p ossibly those in which

the assistance is not of the sort covered by § 5K1.1.

Id. at 214.

We are persuaded by the Third Circuit’s reasoning in Abhouran

and, therefore, hold that § 5K2.0 does not afford district courts

any additional authority to consider substantial assistance

departures without a Government motion. 3 Because the Government

did not bargain away its discretion t o refuse to offer a § 5K1.1

motion and Solis has not alleged that the Government refused to

offer the motion for unconstitutional reasons, the district court

erred by granting a five-level downward departure.

CONCLUSION

We vacate Appellee’s sentence and remand for re-sentencing.

VACATED and REMANDED.