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The Honorable Richard W. Goldberg, Judge, United States Court of

International Trade, sitting by designation.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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Nos. 06-2284/2497

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United States of America, *

*

Appellee/Cross-Appellant, *

* Appeals from the United States

v. * District Court for the Northern

* District of Iowa.

Rodney Jay Jensen, * 

*

Appellant/Cross-Appellee. * 

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Submitted: January 9, 2007

Filed: June 28, 2007(Corrected: July 5, 2007)

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Before COLLOTON and GRUENDER, Circuit Judges, and GOLDBERG, Judge.1

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COLLOTON, Circuit Judge.

Rodney Jensen pled guilty to conspiring to distribute more than 500 grams of

methamphetamine, and to possessing with intent to distribute more than 500 grams

of methamphetamine. Because he had sustained two previous convictions for drug

trafficking offenses, Jensen was subject to a mandatory term of life imprisonment,

pursuant to 21 U.S.C. §§ 841(b)(1)(A) and 851. As part of his plea agreement, Jensen

cooperated with law enforcement in the investigation and prosecution of other
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persons, and the government moved the district court, pursuant to USSG § 5K1.1 and

18 U.S.C. § 3553(e), to reduce Jensen’s sentence from life imprisonment to a term of

years. 

The district court granted the motions and reduced Jensen’s sentence to 180

months’ imprisonment. The court specified that, for purposes of its analysis, it

equated life imprisonment with a term of 360 months’ imprisonment. The court then

reduced that sentence in two increments: first, to 216 months’ imprisonment based

on Jensen’s substantial assistance in the investigation and prosecution of others, and

second, to 180 months’ imprisonment based on other factors set forth in 18 U.S.C.

§ 3553(a).

Neither party is happy with the sentence. Jensen argues that because he was 59

years old at the time of sentencing, and his personal life expectancy was thus less than

360 months, the district court should have adopted a shorter term of imprisonment as

a “starting point” for analysis, and then reduced his sentence from there. The

government contends that because the sentencing table published in the United States

Sentencing Guidelines Manual extends as high as 405 months’ imprisonment, and

because the Sentencing Commission has defined life sentences as 470 months in its

annual Sourcebook for Federal Sentencing Statistics, the district court should have

used a greater term of imprisonment as the starting point for its analysis. The

government also argues that the district court was not permitted to reduce Jensen’s

sentence based on factors set forth in 18 U.S.C. § 3553(a) that are unrelated to

assistance.

Taking the last point first, we agree with the government that the district court’s

reduction of sentence from 216 months to 180 months was contrary to law. When the

government files a motion under 18 U.S.C. § 3553(e), the court has “limited

authority” to sentence a defendant below the statutory minimum. In United States v.

Williams, 474 F.3d 1130 (8th Cir. 2007), we held that this reduction in sentence below
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the statutory minimum must reflect only the defendant’s substantial assistance. Id. at

1132. The court may not reduce the sentence further based on factors unrelated to

assistance, such as those set forth in 18 U.S.C. § 3553(a), because such a reduction

exceeds the limited authority granted by § 3553(e). Id. The district court did not have

the benefit of our decision in Williams, but it is now clear that the second increment

in the court’s reduction was not permissible.

The remaining question is whether the district court abused its discretion in

reducing Jensen’s sentence from life imprisonment to 216 months. Jensen says the

court should have analyzed the reduction by equating “life” with Jensen’s actual life

expectancy of 20.49 years, and then reducing the sentence from there based on

substantial assistance. We reject Jensen’s contention as inconsistent with the structure

of the advisory guidelines. Departures and reductions based on substantial assistance

are to be considered in the context of the advisory guidelines system, see United States

v. Saenz, 428 F.3d 1159, 1162 (8th Cir. 2005), and that system contemplates a range

of incremental punishments ranging from 0-6 months’ imprisonment up to Jensen’s

pre-assistance sentence of life imprisonment. USSG Ch. 5, Pt. A (sentencing table).

These punishments are fixed without regard to the offender’s life expectancy, and

many offenders – including offenders of Jensen’s age who are viewed by the

Sentencing Commission as less serious than Jensen – are subject to terms of

imprisonment of greater than 20.49 years. Thus, it would be anomalous to treat

Jensen as the equivalent of an offender who is subject to a term of only 20 years under

the guidelines, when other less serious offenders who earn sentence reductions are

subject to a higher “starting point” in the sentencing scheme.

The government, on the other hand, contends the district court should have

analyzed the reduction by equating “life” with a term of 470 months’ imprisonment.

We did hold in United States v. Keller, 413 F.3d 706 (8th Cir. 2005), that a district

court’s use of 470 months as a “starting point” was not “in error,” id. at 711, but we

are not convinced that it must be the starting point in every case. Cf. United States v.
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Selby, 184 F. App’x 589, 591 (8th Cir. 2006) (per curiam) (unpublished) (holding in

post-Keller decision that district court did not err in using 405 months as a starting

point for departure from life imprisonment). The 470-month figure is derived from

the Sentencing Commission’s Sourcebook of Federal Sentencing Statistics, where the

Commission has explained that “to reflect life expectancy of federal criminal

defendants more precisely and to provide more accurate length of imprisonment

information, life sentences are now defined as 470 months.” United States Sentencing

Commission, 2005 Sourcebook of Federal Sentencing Statistics, App. A (PostBooker), at 2. There is no indication that the Commission’s selection of 470 months

was a policy judgment about the incremental punishment that should accompany an

increase in an offender’s offense level from Level 42 (which carries a minimum

advisory sentence of 360 months) to Level 43 (which prescribes life imprisonment).

Prior to fiscal year 1993, the Commission defined life imprisonment as 360 months,

and the change to 470 months was based purely on empirical data concerning the life

span of present-day inmates. Id.

We are doubtful about the district court’s use of 360 months’ imprisonment as

a starting point, because that figure represents no incremental punishment from Level

42 to Level 43. In addition, the guideline sentencing table contemplates sentencing

ranges that go as high as 405 months, so it would be odd to equate the maximum

sentence of life with a lesser term of 360 months. See Selby, 184 F. App’x at 591.

Nonetheless, while the parties are fixated on selecting a specific number of months as

a starting point, we find that exercise unnecessary to resolve this case. A starting

point expressed in a number of months is essential to the analysis only if one accepts

the United States Attorney’s view that reductions must be measured as a percentage

of the otherwise applicable sentence. Percentages are not the only way to evaluate the

reasonableness of a reduction, and they can sometimes be unhelpful or even

misleading. Cf. United States v. Maloney, 466 F.3d 663, 668-69 (8th Cir. 2006)

(discussing the issue in the context of variances under 18 U.S.C. § 3553(a)).
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In this case, where the Sentencing Commission has not placed a number on

“life” imprisonment for the purpose of prescribing an incremental punishment, we

think it more helpful to view the district court’s reduction in terms of the incremental

guideline ranges in the Sentencing Commission’s sentencing table. Cf. id. at 668. A

sentence of life imprisonment corresponds to offense level 43 as a starting point, see

United States v. Nelson, No. 05-3624, 2007 WL 1774056, at *2 (7th Cir. June 21,

2007), and a reduction from life imprisonment to a term of 216 months amounts to a

decrease of six guideline ranges. This measure of the reduction is illustrated most

clearly in criminal history category I, where “life” corresponds to offense level 43, and

216 months’ imprisonment is within the sentencing range at offense level 37 – a

difference of six offense levels. Jensen’s criminal history score placed him in criminal

history category II, but the government does not urge that a reduction from a statutory

minimum of life imprisonment to 216 months should be viewed as a greater reduction

for a defendant in category II than for a defendant in category I. Indeed, the

government’s percentage-based approach treats equally all defendants facing a

particular term of imprisonment, regardless of the applicable criminal history

category. Likewise, we do not think it necessary to view the difference between level

42, category II, and level 41, category II, both of which carry a sentencing range of

“360-life,” as a “reduction” for purposes of determining whether the district court

abused its discretion in this context. See Nelson, 2007 WL 1774056, at *1 (recounting

that the government, in recommending reduction of four sentencing guideline ranges

from life imprisonment and offense level 43 for a defendant in category VI, asked the

district court “to ‘clump’ the six guideline ranges of ‘360-life’ under category VI

(offense levels 42 to 37) ‘together into one,’” and that the recommended sentence was

within the range corresponding to offense level 34).

A reduction of six guideline ranges is significant in the context of an advisory

guideline system where the degree of most aggravating and mitigating adjustments is

two, three, or four offense levels. Saenz, 428 F.3d at 1162. But it is less dramatic

than other reductions that we have viewed as so great as to require exceptional facts
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to justify them. See United States v. Coyle, 429 F.3d 1192, 1193-94 (8th Cir. 2005)

(14-level reduction); United States v. Dalton, 404 F.3d 1029, 1033 (8th Cir. 2005)

(12-level reduction); Saenz, 428 F.3d at 1162 (11-level reduction); United States v.

Haack, 403 F.3d 997, 1005 (8th Cir. 2005) (7-level reduction); see also United States

v. Burns, 438 F.3d 826, 831 (8th Cir. 2006) (Wollman, J., dissenting) (disagreeing

with panel decision affirming a 10-level reduction), vacated and reh’g en banc

granted, Nos. 04-2901/2933 (8th Cir. May 18, 2006); cf. United States v. Pizano, 403

F.3d 991, 997 (8th Cir. 2005) (affirming 12-level reduction). The district court here

determined that Jensen’s assistance was not “extraordinary” within the meaning of our

cases, and that the reduction in sentence should be less than fifty percent of a starting

point expressed in a number of months. (S. Tr. II at 28-29); cf. Dalton, 404 F.3d at

1033 (stating that “an extraordinary reduction must be supported by extraordinary

circumstances,” and citing favorably an observation that a 50 percent downward

departure was an “extraordinary sentence reduction”).

The record here shows that Jensen was debriefed extensively by law

enforcement agents concerning a substantial methamphetamine conspiracy, and that

he was a prospective witness in the sentencing proceeding of a co-conspirator. (The

conspirator ultimately stipulated to an enhancement as Jensen waited to testify).

Jensen also identified the conspirators’ source of supply in Arizona – a major figure

in the conspiracy – and testified in the grand jury in preparation for what the

government characterized as a “probable future indictment.” (S. Tr. II at 7). The

government stipulated that Jensen’s assistance was timely, complete, and truthful.

While the reduction here is generous, and at or near the limit of what we could view

as reasonable based on this level of assistance, we hold that the district court’s

reduction of Jensen’s sentence by the equivalent of six guideline ranges was not an

abuse of discretion.

For these reasons, we vacate the judgment of the district court and remand for

imposition of a sentence of 216 months’ imprisonment.

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