United States Court of Appeals

For the Eighth Circuit 

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No. 22-2510

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United States of America

 Plaintiff - Appellant

v.

Keith Richard Foster

 Defendant - Appellee

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Appeal from United States District Court 

for the District of North Dakota - Eastern

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Submitted: March 16, 2023

Filed: April 28, 2023

[Unpublished]

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Before COLLOTON, MELLOY, and GRUENDER, Circuit Judges. 

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PER CURIAM.

The Government appeals Keith Foster’s sentence, arguing that the district 

court improperly sentenced him below the statutory minimum. Foster was indicted 

for conspiracy to distribute a controlled substance, see 21 U.S.C. §§ 841(a)(1), 846,

and then detained for three days until he was granted pretrial release on the condition 

that he reside in a sober-living facility. Later, Foster entered a guilty plea. Without 
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objection from the Government, the district court allowed Foster to remain on bond, 

even though 18 U.S.C. § 3143(a)(2) required Foster to be detained until sentencing

unless there were “exceptional reasons” why detention was not appropriate. 18 

U.S.C. § 3145(c).

Foster’s advisory sentencing guidelines range was 130 to 162 months’ 

imprisonment, and the mandatory minimum was 120 months’ imprisonment. See 

§ 841(b)(1)(A)(viii). The Government moved for a downward departure under 

U.S.S.G. § 5K1.1 and 18 U.S.C. § 3553(e) based on Foster’s substantial assistance 

to the Government in investigating and prosecuting other drug traffickers through a 

proffer interview. Section 3553(e) authorizes a district court, upon the government’s 

motion, to impose a sentence below the statutory minimum based on the defendant’s 

substantial assistance to the government’s “investigation or prosecution of another 

person who has committed an offense.” When deciding whether to depart under 

§ 3553(e), the court considers factors such as the quality, nature, and significance of 

the defendant’s assistance. United States v. Johnson, 517 F.3d 1020, 1024 (8th Cir. 

2008); see United States v. Stewart, 509 F.3d 450, 453 (8th Cir. 2007) (“A substantial 

assistance reduction is judged by the degree and quality of the assistance actually 

provided, not the defendant’s willingness to do more and inability to do so.”).

 

At sentencing, the Government recommended a downward variance to the 

statutory minimum based on the § 3553(a) factors. It further reiterated its 

recommendation for a downward departure below the statutory minimum to 80 

months’ imprisonment pursuant to § 5K1.1 and § 3553(e). For his part, Foster 

requested a sentence of time served, relying on the § 3553(a) factors. The district 

court noted the Government’s motion for a downward departure but mistakenly 

characterized the Government’s request for an 80-month sentence as based on the 

§ 3553(a) factors, rather than on § 3553(e). The district court then discussed those 

factors, citing primarily Foster’s success in the sober-living facility, and sentenced 

him to time served and 2 years’ supervised release. The Government objected on 

the ground that any departure below the statutory minimum must be based solely on 

assistance-related factors. The Government now appeals Foster’s sentence.
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We review de novo whether the district erred in departing downward based 

on impermissible factors. United States v. Williams, 474 F.3d 1130, 1131 (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.” Id. at 

1130-31; see United States v. Billue, 576 F.3d 898, 903-04 (8th Cir. 2009); United 

States v. Burns, 577 F.3d 887, 894 (8th Cir. 2009) (en banc). So, “if a district court 

imposes a sentence below the statutory minimum in part so as to reflect the history 

and characteristics of the defendant, then the court exceeds the limited authority 

granted by § 3553(e).” Billue, 576 F.3d at 903 (internal quotation marks omitted).

Here, the district court exceeded its authority under § 3553(e). Because the 

Government moved for a departure under § 3553(e), the court could impose a 

sentence below the 120-month minimum, but it could only do so based on Foster’s 

substantial assistance to the Government. See Williams, 474 F.3d at 1130-31. Yet 

the district court departed downward based on the § 3553(a) factors alone. At 

sentencing, the court discussed Foster’s drug-abuse history and his success in a 

sober-living facility during pretrial release without mentioning any consideration of 

the quality, nature, and significance of Foster’s assistance. See Johnson, 517 F.3d 

at 1024. The district court therefore erred in sentencing Foster to less than 120 

months’ imprisonment. See United States v. Salas-Barraza, 579 F.3d 885, 891 (8th 

Cir. 2009) (vacating a sentence because the “district court did not base its sentence 

solely on assistance-related considerations”). 

Foster argues that any error is harmless because the Government does not 

challenge the reasonableness of the sentence. See Fed. R. Crim. P. 52(a). We 

disagree. The district court made no findings about the extent of Foster’s assistance, 

which the Government said was limited to a single proffer interview. See Stewart, 

509 F.3d at 453. Thus, we do not know how much the district court would have 

departed downward from the statutory minimum had it properly relied only on 

assistance-related considerations.
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For the foregoing reasons, we vacate Foster’s sentence and remand to the 

district court for resentencing.

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