Because much of the record in this case remains under seal, *

we adhere to an arrangement to which the parties have agreed and

refrain from disclosing the defendant's identity.

United States Court of Appeals

For the First Circuit

No. 10-1033

UNITED STATES OF AMERICA

Appellee,

v.

ANONYMOUS DEFENDANT,*

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Paul J. Barbadoro, U.S. District Judge]

Before

 Boudin, Selya and Stahl, 

Circuit Judges.

Felicia H. Ellsworth, by appointment of the court, with whom

Paul R.Q. Wolfson and Wilmer Cutler Pickering Hale and Dorr LLP,

were on brief, for appellant.

Seth R. Aframe, Assistant United States Attorney, with whom

John P. Kacavas, United States Attorney, was on brief, for appellee.

December 22, 2010
-2-

SELYA, Circuit Judge. This appeal requires that we

perform two separate but related tasks. First, we must clarify the

effect of United States v. Booker, 543 U.S. 220 (2005), on our preBooker case law that narrowly circumscribed the reviewability of

sentencing courts' discretionary departure decisions. Second, we

must assess the bona fides of a sentence that the defendant claims

is too harsh, even though it embodies a downward departure from the

guideline sentencing range (GSR) based on substantial assistance to

the authorities.

After careful consideration of these points, we conclude

that we have jurisdiction to hear and determine this appeal; that

the district court did not commit procedural error of any kind; that

the sentence was sufficiently explained and fell within the universe

of reasonable outcomes; and that, therefore, the sentence must

stand.

I. BACKGROUND

The district court sentenced the defendant following a

guilty plea. Consequently, we glean the relevant facts from the

presentence investigation report (PSI Report) and the transcript of

the disposition hearing. United States v. Fernández-Cabrera, 625

F.3d 48, 50 (1st Cir. 2010); United States v. Dietz, 950 F.2d 50,

51 (1st Cir. 1991). Because the linchpin of the appeal is the

defendant's fruitful cooperation with the authorities, we describe

his activities only in generalities.
-3-

In the summer of 2006, federal authorities arrested the

defendant for drug trafficking and other illicit activities. Almost

immediately, he began cooperating. His assistance included

introductions to his quondam suppliers and providing corroborating

evidence in several cases. These actions culminated in the

apprehension and conviction of roughly a dozen participants in a

gallimaufry of drug-trafficking operations.

The defendant's fruitful cooperation prompted the

government to promise to move for a sentence reduction under a

provision of the sentencing guidelines that authorizes downward

departures based on substantial assistance to law enforcement

agencies. See USSG §5K1.1 (reproduced in the Appendix). 

With this assurance in hand, the defendant agreed to

plead guilty to distributing and conspiring to distribute MDMA

(ecstasy) and illicit gambling activities. See 21 U.S.C.

§§ 841(a)(1), 846; 18 U.S.C. § 1955. On November 28, 2007, the

district court took the plea but deferred action on it until the

time of sentencing. The court nevertheless ordered the preparation

of a presentence report. When received, the PSI Report recommended

an offense level of 34, a criminal history category of VI, and a GSR

at 262-300 months. The probation office explained that the top end

of the proposed GSR would have been 327 months but for the combined

statutory maximums for the offenses of conviction. 
-4-

On December 19, 2008, the district court accepted the

defendant's plea and convened the disposition hearing. The hearing

itself lasted three days, spread out over many months. 

A substantial assistance departure can be granted only if

the government moves for one. See Wade v. United States, 504 U.S.

181, 184 (1992) (discussing USSG §5K1.1); United States v. Sandoval,

204 F.3d 283, 285 (1st Cir. 2000) (same). The government filed such

a motion in the instant case. It sought a 13-level reduction in the

defendant's offense level as a reward for his substantial

assistance. Such a departure, if granted, would have reduced the

GSR to 77-96 months, and the government supported a sentence at the

bottom of this reconstituted range: 77 months. To bolster its

importunings, the government proffered testimony of a Drug

Enforcement Administration (DEA) agent who spoke to both the quality

of the defendant's information and the investigative difficulties

that the authorities would likely have encountered but for the

defendant's cooperation. For his part, the defendant indicated that

he would be satisfied with a departure of this magnitude.

The district court expressed openness to a sentence

reduction but had reservations about how large the reduction should

be. The court voiced a preference for a more modest departure — one

that would yield a sentence on the order of 135 months.

During the discourse, the court learned of an assault

charge pending against the defendant in a state court. The charge
-5-

stemmed from the defendant's involvement in a barroom brawl while

he was free on bail in the federal case. The details of the

altercation were disputed: state prosecutors apparently believed

that the defendant was the instigator but defense counsel

represented that his client was not at fault and that he expected

the charge to be dismissed. Concerned by defense counsel's

explanation, the district court mused that the rationale for a

possible dismissal might have less to do with the defendant's

innocence and more to do with the prospect of a lengthy federal

sentence that would eclipse any state sentence. In the end, the

court continued the disposition hearing to give the defense time to

get the assault charge dismissed. The court advised counsel that

it would be interested in whether any such dismissal was based on

"evidentiary doubt rather than administrative convenience." Neither

side objected to this continuance. 

The district court reconvened the disposition hearing on

April 2, 2009. Upon learning that no conclusive action had been

taken on the assault charge, the court advised the parties that it

would conduct its own inquiry into the matter.

On December 14, 2009, the hearing resumed. Without

objection, the court took evidence to ascertain the defendant's role

in the assault. Several witnesses testified, including the putative

victim, the barkeep, and the defendant. The court concluded that

the defendant was the aggressor and had instigated the fight. 
-6-

Next, the court rejected the criminal history score

proposed in the PSI Report. The newly calculated score lowered the

defendant's criminal history category to IV. The court thereafter

heard recapitulative arguments concerning the nature and value of

the defendant's cooperation. 

The government reiterated the reasons behind its stated

preference for a 13-level downward departure and a 77-month

sentence. The defendant joined in these exhortations, arguing that

the factors relevant to a substantial assistance departure — known

in this circuit as the Mariano factors, see United States v.

Mariano, 983 F.2d 1150, 1156 (1st Cir. 1993) — favored an

exceptional degree of leniency. When the parties had finished, the

district court termed the defendant's cooperation "extremely

valuable" and proceeded to grant a seven-level offense level

reduction. In conjunction with the lowered criminal history

category, this yielded a GSR of 100-125 months. The court then

imposed a sentence of 120 months, citing the defendant's misconduct

while on bail (the assault) as the reason for choosing a sentence

near the upper end of the GSR. This timely appeal followed.

II. ANALYSIS

The defendant, ably represented by appointed counsel,

mounts a vigorous challenge to his sentence on both procedural and

substantive grounds. Before grappling with this asseverational
-7-

array, however, we first must dispose of the government's

jurisdictional objection.

These points evoke differing standards of review. The

jurisdictional question turns on a purely legal point and, thus,

engenders de novo review. United States v. Ramos-Paulino, 488 F.3d

459, 463 (1st Cir. 2007); United States v. Alegría, 192 F.3d 179,

191 (1st Cir. 1999). Our review of the defendant's attack on his

sentence proceeds in two steps. We first must ensure that the

district court committed no significant procedural error. See

United States v. Martin, 520 F.3d 87, 92 (1st Cir. 2008). If we

determine that the sentence is "procedurally sound," we then must

test its "substantive reasonableness." Id. Each of these two steps

is conducted under the auspices of a "deferential abuse-ofdiscretion standard." Id. (quoting Gall v. United States, 552 U.S.

38, 41 (2007)). For this purpose, a material error of law

constitutes a per se abuse of discretion. See United States v.

Santiago-Rivera, 594 F.3d 82, 84 (1st Cir. 2010); United States v.

Snyder, 136 F.3d 65, 67 (1st Cir. 1998). 

A. Appellate Jurisdiction.

In bygone days — when the federal sentencing guidelines

were thought to comprise a mandatory sentencing regime — this court

routinely held that discretionary departure decisions were not

reviewable unless the sentencing court misunderstood its authority

or committed an error of law. See, e.g., United States v. Dewire,
-8-

271 F.3d 333, 337 (1st Cir. 2001); United States v. Vaknin, 112 F.3d

579, 585 (1st Cir. 1997); United States v. Pierro, 32 F.3d 611, 619

(1st Cir. 1994). This was a judge-made rule, not specifically

required by any statute or guideline provision. See United States

v. Pighetti, 898 F.2d 3, 4 (1st Cir. 1990); United States v. RuizGarcia, 886 F.2d 474, 476-77 (1st Cir. 1989). The government

insists that this judge-made rule bars review of the sentencing

court's discretionary decision not to depart more generously.

Developments in the law have overtaken this argument. In

2005, the Supreme Court decided Booker, which recharacterized the

federal sentencing guidelines as advisory. 543 U.S. at 245. As a

by-product, the Court's decision obligates federal appellate courts

to review appealed sentences for reasonableness. See id. at 261;

United States v. Carrasco-de-Jesús, 589 F.3d 22, 26 (1st Cir. 2009).

This obligation attaches regardless of whether a sentence adheres to

or varies from the GSR. See United States v. Turbides-Leonardo, 468

F.3d 34, 40 (1st Cir. 2006) ("We review sentences imposed under an

advisory guidelines regime for reasonableness, regardless of whether

they fall inside or outside the applicable GSR."). 

Review for reasonableness is functionally equivalent to

review for abuse of discretion. Carrasco-de-Jesús, 589 F.3d at 26

(citing Gall, 552 U.S. at 51). This review encompasses virtually

the entire gamut of sentences imposed under the advisory guidelines,
 We say "virtually" because we exempt from this statement 1

sentences imposed pursuant to a statute that contains a mandatory

minimum term of imprisonment. We likewise exempt refusals to

depart in instances in which departure requires a government motion

that has not been forthcoming. There may be other exceptions, but

none is implicated here. 

-9-

including sentences shaped by discretionary departure decisions.1

See United States v. Fernández, 443 F.3d 19, 26 (2d Cir. 2006);

United States v. McBride, 434 F.3d 470, 477 (6th Cir. 2006); United

States v. Vaughn, 433 F.3d 917, 923-24 (7th Cir. 2006); see also

United States v. Plouffe, 445 F.3d 1126, 1130 (9th Cir. 2006)

(explaining in an analogous context that "prior precedent

restricting jurisdiction made sense when the Guidelines were

considered mandatory," but that it makes no sense "to so restrict

jurisdiction on appeal now that the Guidelines must be viewed . . .

as merely advisory").

In arguing for the perpetuation of our earlier judge-made

restriction on appellate jurisdiction, the government cites our

decision in United States v. Meléndez-Torres, 420 F.3d 45 (1st Cir.

2005). There, we indicated that, as a general rule, discretionary

departure decisions remain unreviewable in the post-Booker era. But

when Meléndez-Torres was written, Booker had just been decided and

its import had not been fully digested.

During the following year, we authoritatively clarified

the matter. In United States v. Jiménez-Beltre, 440 F.3d 514 (1st

Cir. 2006) (en banc), we addressed the issue of whether a sentence
-10-

within a properly calculated GSR remained, as before Booker,

"inherently unreviewable." Id. at 517. The government argued the

affirmative of this proposition, based in part on an analogy to preBooker "case law governing review . . . of a refusal to depart."

Id. (emphasis omitted). We rejected the government's proposition,

concluding that Booker rendered it "hopeless." Id.

The logic of the en banc decision in Jiménez-Beltre must

prevail here. Under that logic, all sentences imposed under the

advisory guidelines (subject, however, to the exemption mentioned

above, see supra note 1) are open to reasonableness review,

including those that entail either a discretionary refusal to depart

or a departure whose extent is contested. No other rule will

satisfy what we have determined to be the Booker Court's mandate

that all "sentences would be reviewable for reasonableness whether

they fell within or without the guidelines." Jiménez-Beltre, 440

F.3d at 517; see also id. at 517 n.1.

This holding disposes of the government's jurisdictional

objection. Where, as here, a departure sentence is subject to

review for reasonableness under the advisory guidelines, the

jurisdictional restriction limned in our pre-Booker cases is of no

consequence. In following the dictates of Booker and deciding

whether the imposed sentence is reasonable, the reviewing court, in

effect, resolves any question as to whether the extent of the
-11-

departure is reasonable. The authority to conduct that review is

sufficient to confer jurisdiction here.

B. Procedural Soundness.

We turn now to the claim of procedural error. The

defendant complains that the sentencing court erred by (i) failing

to cogitate the Mariano factors and (ii) delving too deeply into the

background of the assault charge. We consider these two claims

separately.

1. The Mariano Factors. Both the decision to depart

downward for substantial assistance and the related decision about

the extent of the departure rest within the sound discretion of the

sentencing court. Mariano, 983 F.2d at 1156. The so-called Mariano

factors inform those decisions; in United States v. Ahlers, we

summarized them: 

[T]he court's evaluation of the significance

and usefulness of the defendant's assistance

. . . ; the reliability of any information or

testimony given by the defendant; the

timeliness, nature, and extent of the

assistance; and any danger to which the

defendant or members of his family were

exposed as a result of the assistance.

305 F.3d 54, 61 n.6 (1st Cir. 2002).

A sentencing court's discretion to assay these factors is

wide, but not unbounded. Although a sentencing court "must at a

bare minimum indicate its cognizance" of the Mariano factors,

Mariano, 983 F.2d at 1156, we have prescribed no particular formula

for evaluating and explicating these factors. In other words, a
-12-

sentencing court is not required to use any magic words or chant any

special mantra to show that it has considered the five factors. See

Vaknin, 112 F.3d at 585.

In this instance, the record shows with conspicuous

clarity the sentencing court's awareness of the Mariano factors.

During the first day of the disposition hearing, the court noted

that it would "measure the [defendant's] cooperation" against the

factors and inquired into the role that the defendant's cooperation

had played in convicting other persons. The prosecutor confirmed

that assistance rendered by the defendant was "significant, useful,

truthful, complete and reliable," giving specific illustrations.

The transcript makes manifest that the court not only recognized the

salience of the Mariano factors but also understood the nature,

timeliness, veracity, and value of the defendant's aid. 

Having grasped the situation on the first day of the

hearing, the court kept the defendant's assistance at the forefront.

On the last day of the hearing, the court gave each side an

opportunity to rehearse the case for a departure. This was done, in

the court's words, to ensure that it "had in mind the nature of the

defendant's cooperation." The parties availed themselves of this

opportunity in full. Of particular pertinence for present purposes,

the defendant walked the court through each of the five Mariano

factors and argued for no less than a two-level downward departure

referable to each one. It is, therefore, abundantly clear that the
-13-

Mariano factors were squarely before the court when it excogitated

the extent of the departure. 

To be sure, the court, in pronouncing sentence, could have

expounded upon the Mariano factors one by one, welding each to the

case at hand. But the law does not require such a level of

specificity. Where, as here, the court's reasoning is easily

inferred and there is nothing in the record to suggest that it

overlooked any pertinent factor, the claim of procedural error is

nothing more than hopeful speculation. Consequently, the claim

lacks force. See, e.g., United States v. Mills, 329 F.3d 24, 32

(1st Cir. 2003); United States v. Torres, 251 F.3d 138, 148-49 (3d

Cir. 2001); see also Mariano, 983 F.2d at 1156.

The defendant attempts to blunt the force of this

reasoning by noting that the guidelines instruct sentencing courts

to give substantial weight to "the government's evaluation of the

extent of the defendant's assistance, particularly where the extent

and value of the assistance are difficult to ascertain." USSG

§5K1.1, cmt. n.3. The defendant says that the court strayed too far

from the government's recommendation here.

We think, however, that the defendant overstates the

effect of this directive. A substantial assistance departure begins

with a government motion. Wade, 504 U.S. at 184. Once such a

motion is filed, the government's assessment of the defendant's

assistance deserves serious consideration. Withal, that assessment
-14-

is neither a proxy for the sentencing court's exercise of discretion

nor a basis upon which the court can abdicate its responsibilities.

See United States v. Burns, 577 F.3d 887, 893 (8th Cir. 2009) (en

banc) (noting that "the government's recommendation is not

controlling . . . and it is the district court's responsibility to

determine an appropriate reduction") (citation and internal

quotation marks omitted). The directive to give substantial weight

to the government's evaluation was "never intended to rein in the

district court's discretion concerning the need for, and extent of,

a downward departure" under section 5K1.1. Mariano, 983 F.2d at

1156; see Vaknin, 112 F.3d at 585 (observing that "the sentencing

judge's role cannot be usurped by agreements between the prosecutor

and the defendant"). It follows inexorably that a court that

chooses not to accept a prosecutor's recommendation in full cannot,

for that reason alone, be deemed to have misweighed the Mariano

factors. 

2. The Assault. Next, the defendant assails the

sentencing court's zealous attention to the assault charge. It was

error, he asserts, for the court to look behind the face of the

state-court record; and in any event, the lengthy evidentiary

hearing resulted in a peripheral matter (the assault) overshadowing

the central issue in the case (the defendant's substantial

assistance).
-15-

This argument is unavailing. To begin, courts have long

been permitted to consider more than charged conduct in fashioning

sentences. See, e.g., United States v. Mays, 593 F.3d 603, 609-10

(7th Cir. 2010); United States v. Lombard, 102 F.3d 1, 4 (1st Cir.

1996). Moreover, a sentencing court is not bound by the face of a

record in a different criminal proceeding; indeed, a sentencing

court may even consider acquitted conduct, if proved by a

preponderance of the evidence. See, e.g., United States v. Watts,

519 U.S. 148, 157 (1997) (per curiam); United States v. Gobbi, 471

F.3d 302, 314 (1st Cir. 2006); see also United States v. Dorcely,

454 F.3d 366, 371 (D.C. Cir. 2006) (collecting cases). The

sentencing guidelines themselves contemplate incorporating allegedly

criminal conduct into the sentencing equation prior to any

conviction. See, e.g., USSG §4A1.3(a)(1). Similarly, the case law

allows sentencing courts to consider prior criminal conduct that has

not ripened into a conviction. See, e.g., United States v. DiazMartínez, 71 F.3d 946, 952 (1st Cir. 1995); United States v. DiazVillafane, 874 F.2d 43, 50 (1st Cir. 1989).

The defendant notes that the assault is not "relevant

conduct," USSG §1B1.3, but, rather, conduct unrelated to the

offenses of conviction. That is true as far as it goes, but it does

not take the defendant very far. The assault occurred while the

defendant was free on bail for the offenses of conviction, and cases

are legion in which sentencing courts have considered such conduct.
-16-

See, e.g., United States v. Fadayini, 28 F.3d 1236, 1242 (D.C. Cir.

1994); United States v. Doe, 18 F.3d 41, 47-48 (1st Cir. 1994)

(Breyer, C.J.). It was, therefore, permissible for the court below

to inquire into the conduct underlying the assault charge.

The defendant's related claim — that the emphasis on the

assault charge overshadowed the merits of his substantial assistance

— is unpersuasive. Because the defendant did not object below to

the evidentiary hearing, this claim is at best reviewable for plain

error. See, e.g., United States v. Jiminez, 498 F.3d 82, 85 (1st

Cir. 2007); United States v. Duarte, 246 F.3d 56, 60 (1st Cir.

2001). There is no error here, plain or otherwise. 

The decision to hold an evidentiary hearing at the time

of sentencing rests within the sentencing court's discretion.

United States v. Robles-Torres, 109 F.3d 83, 85 (1st Cir. 1997).

Given that the assault charge arose out of acts committed while the

defendant was free on bail, there was no abuse of discretion in

deciding to inquire into them.

In contending otherwise, the defendant misreads our

decision in United States v. Mateo, 271 F.3d 11 (1st Cir. 2001).

There, we held that a district court "ordinarily is not required to

look beyond the face of the state-court record" in deciding how to

factor a state charge into the federal sentencing equation. Id. at

16. But "not required" and "not permitted" are two very different

things.
-17-

Proceeding to the substance of the defendant's argument,

nothing in the record supports a finding that the attention paid to

the assault charge drove other issues into obscurity. The

information about substantial assistance plainly remained front and

center. There is not so much as a hint that the assault charge came

to dominate the court's thinking.

This lack of dominance is made quite clear by the

sentencing court's limited use of the assault charge. The assault

played only a minor part in shaping the defendant's sentence. It

was not used to elevate the defendant's offense level, enhance his

criminal history score, discount his substantial assistance, or

circumscribe the extent of the downward departure. Instead, it came

into play only after the court effected the departure by shaping a

new GSR. Only then did the court use the assaultative conduct for

the narrow purpose of fixing a sentencing point within that newly

constituted range. This small adjustment was comfortably within the

court's discretion.

C. Substantive Reasonableness.

This brings us to the defendant's claim that his sentence

is substantively unreasonable. He maintains that the sentence does

not accord sufficient weight to the factors enumerated in 18 U.S.C.
 Pertinently, these factors include: 2

(1) the nature and circumstances of the offense and the

history and characteristics of the defendant; (2) the

need for the sentence imposed (A) to reflect the

seriousness of the offense, to promote respect for the

law, and to provide just punishment for the offense; (B)

to afford adequate deterrence to criminal conduct; (C) to

protect the public from further crimes of the defendant;

and . . . (6) the need to avoid unwarranted sentence

disparities among defendants with similar records . . . .

18 U.S.C. § 3553(a).

-18-

§ 3553(a). He singles out his history and characteristics, and the 2

need for the sentence to provide just punishment. 

Determining the extent of a discretionary departure is

quintessentially a judgment call. "[A] sentencing court's ultimate

responsibility is to articulate a plausible rationale and arrive at

a sensible result." Carrasco-de-Jesús, 589 F.3d at 30.

We already have found that the sentencing court

appropriately considered the five Mariano factors. See supra Part

II(B)(1). Those factors to some extent inform the broader panoply

of factors limned in 18 U.S.C. § 3553(a). As to the remaining

statutory factors, the defendant's argument that the court

misweighed them is little more than a lament that the defendant

would weigh them differently. But it is the court, not the parties,

that holds the scales in gauging the extent of discretionary

departure decisions. After all, the sentencing court may choose to

curtail the extent of a substantial assistance departure based on

factors other than the Mariano factors. See Mariano, 983 F.2d at
 To the extent that the defendant argues that the career 3

offender designation (which accounted for his original placement in

criminal history category VI) artificially inflated his sentence,

that ship has sailed. Having failed to object below either to the

PSI Report or to the court's use of category VI as a starting

point, he cannot lodge such an objection for the first time on

appeal. See Turbides-Leonardo, 468 F.3d at 38.

-19-

1157; see also United States v. McFarlane, 309 F.3d 510, 515 (8th

Cir. 2002).

The district court relied on such factors here. It

supportably found the defendant to be a "major drug dealer [who]

made a ton of money" from trafficking in controlled substances.

Taking these facts into account to cabin the extent of the departure

fits neatly within the encincture of judicial discretion. 

In the last analysis, the sentencing court articulated

specific and cogent reasons for truncating the extent of the

departure. The court exhibited a similar degree of care in

fashioning the sentence. Citing considerations favorable to the

defendant, it reduced his criminal history category from VI to IV.3

The court also acknowledged the applicable value of the defendant's

assistance to the government and reduced his offense level

dramatically. It then explained the main reasons why it departed

less handsomely than the parties had requested: the seriousness of

the criminal enterprise and the leading role that the defendant

played in it. The court considered whether a departure of the

magnitude that it envisioned would send the right message to other

potential cooperators and concluded that it would. Finally, the
-20-

court determined that placing the defendant near the top of the

reconstituted GSR was warranted by his commission of an assault

while released on bail.

Sentencing under an advisory guidelines regime is more art

than science. A sentencing judge must weigh a variety of

considerations, filter them through his real-world experience and

his unique perspective on the case, and formulate a sentence that is

responsive to the facts. There is normally no single appropriate

sentence but, rather, a range of reasonable sentencing options.

Martin, 520 F.3d at 92; United States v. Dixon, 449 F.3d 194, 204

(1st Cir. 2006). Here, the district court sufficiently weighed the

history and characteristics of both the offense and the offender.

Its sentencing rationale was plausible and the sentence was within

the universe of acceptable outcomes. The sentence is, therefore,

substantively reasonable. See United States v. Bunchan, ___ F.3d

___, ___ (1st Cir. 2010) [No. 09-2144, slip op. at 13]; Carrasco-deJesús, 589 F.3d at 30.

III. CONCLUSION

We need go no further. For the reasons elucidated above,

we reject the defendant's claims of sentencing error.

Affirmed.
-21-

Appendix

§ 5K1.1. Substantial Assistance to Authorities (Policy Statement)

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.

(a) The appropriate reduction shall be

determined by the court for reasons stated

that may include, but are not limited to,

consideration of the following: 

(1) the court's evaluation of the significance

and usefulness of the defendant's assistance,

taking into consideration the government's

evaluation of the assistance rendered; 

(2) the truthfulness, completeness, and

reliability of any information or testimony

provided by the defendant; 

(3) the nature and extent of the defendant's

assistance; 

(4) any injury suffered, or any danger or risk

of injury to the defendant or his family

resulting from his assistance; 

(5) the timeliness of the defendant's

assistance. 

USSG §5K1.1.