United States v. Saenz (429 F. Supp. 2d 1081, 2006)

MEMORANDUM OPINION AND ORDER REGARDING RESENTENCING

BENNETT, Chief Judge.

TABLE OF CONTENTS

I. THE CONTEXT OF SUBSTANTIAL ASSISTANCE DEPARTURES.1084

A. Sentencing In The Northern District Of Iowa.1084

1. The defendants.1084

2. The sentences.1084

B. Legal Standards For Substantial Assistance Departures.1087

1. Points of agreement .1088

2. The point of disagreement.1090

a. The legal flaw.1090

b. The factual flaw.1091

C. The Lessons From The Sentencing Report.1092

1. The range of “ordinary” substantial assistance departures.1092

2. The “reasonableness” of “starting in the middle”.1093

3. Reorientation of perceptions.1096

II. SAENZ’S RESENTENCING.1098

A. Background And Original Sentence.1099

B. The Decision On Appeal .1099

C. Proceedings On Remand.1100

1. Additional evidence.1100

2. Arguments of the parties.1102

D. Determination Of Sentence.1104

1. The appropriate procedure.1104

2. Determination of the Guidelines sentence.1105

3. “Reasonableness” of the Guidelines sentence.1107

4. Consideration of a non-Guidelines sentence.1108

III. CONCLUSION .1108

With some notable exceptions, the Eighth Circuit Court of Appeals has recently reversed and remanded several of my sentencing decisions on the ground that my downward departures in excess of 50 percent for “substantial assistance” pursuant to U.S.S.G. § 5K1.1 and 18 U.S.C. § 3553(e) were “unreasonable” and “excessive.” This case represents one such reversal and is now before me on remand for resentencing. With all due respect, I write to express my profound disagreement with the Circuit Court’s rationale for this string of reversals. As a United States District Court Judge, I do recognize that I must faithfully and unflinchingly follow Circuit law, even when I disagree with it — as I do here. This is equally true whether the Circuit Court’s rationale is newly-minted, as I believe it is here, or based on long-standing, rock solid precedent, as it sometimes is in other contexts. I write this opinion expressing my specific disagreement with the Circuit Court’s position concerning the proper extent of substantial assistance downward departures on legal grounds as well as on the factual basis of data recently compiled by the United States Sentencing Commission to which the Circuit Court did not have access at the time that it reversed and remanded this and other cases in this string of reversals.

I. THE CONTEXT OF SUBSTANTIAL ASSISTANCE DEPARTURES

My major point of contention with this string of reversals is the notion expressed by the Circuit Court in some of its decisions that a 50 percent reduction for substantial assistance is “extraordinary.” There is, in my view, no basis for such a benchmark in federal statutory law, federal common law, the United States Sentencing Guidelines themselves, the realities of federal sentencing, or basic concepts of fairness, mercy, and justice. Indeed, recent data compiled by the United States Sentencing Commission demonstrate that labeling a 50 percent reduction for substantial assistance “extraordinary” is at odds with the facts and so deeply troubling that the Circuit Court should reevaluate its position. I will return to this point, in detail, below. However, I must first address some critical issues of context for sentencing generally and substantial assistance downward departures in particular.

A. Sentencing In The Northern District Of Iowa

1. The defendants.

First, I wish to point out the simple truth that most of the individuals I sentence in drug cases are drug addicts. More specifically, most are methamphetamine addicts-they are users and low level dealers who deal solely to support then-severe addiction. I can go a year sentencing only methamphetamine addicts with court-appointed C.J.A. lawyers rather than privately retained lawyers, because virtually all of the methamphetamine defendants that I have sentenced are impecunious as a result of their addiction. They are almost never drug “kingpins.” In my eleven-plus years of sentencing drug defendants, I have sentenced very few “kingpins.” The two most recent “kingpins” to appear in

my court received the death penalty for murders related to their drug trafficking. See, e.g., United States v. Johnson, 403 F.Supp.2d 721 (N.D.Iowa 2005); United States v. Honken, 381 F.Supp.2d 936 (N.D.Iowa 2005). As distinguished from the few “kingpins” to appear in my court, many “addict” defendants provide some assistance to the government in the prosecution of others. When the government moves for substantial assistance reductions, I try to provide reasonable reductions in light of the degree of substantial assistance actually provided.

2. The sentences

I must also point out that, contrary to the perception that this string of reversals may have engendered, I am not habitually a lenient sentencer, for drug-trafficking offenses or any other kinds of offenses. My sentencing record shows that I have not hesitated to depart or vary upward, even sua sponte when the government failed to seek such a departure, when I deemed it appropriate to do so, for example, in cases involving defendants who were egregiously violent, defendants whose criminal history calculations woefully under-represented their actual criminal histories (too numerous to cite individually), or defendants for whom other factors justified an increased sentence. See, e.g., United States v. Rouillard, No. CR05-4068-MWB (N.D.Iowa Mar. 22, 2006) (judgment in a criminal case) (granting an upward departure under U.S.S.G. § 4A1.3 for underrepresentation of criminal history, over the government’s objection, and an upward variance under 18 U.S.C. § 3553(a), also over the government’s objection, from an advisory guideline range of 30 to 37 months to the statutory maximum of 120 months); United States v. Pablo-Lepe, No. CR 03-4102-MWB (N.D.Iowa July 23, 2004) (judgment in a criminal case) (the undersigned’s first post-Blakely sentencing decision finding the United States Sentencing Guidelines unconstitutional and varying the defendant’s sentence upward from an advisory Guidelines range of 15 to 21 months to the statutory maximum of 60 months), aff'd, 125 Fed.Appx. 100 (8th Cir.2005) (unpublished op.) (per curiam); United States v. Yahnke, 297 F.Supp.2d 1173 (N.D.Iowa 2003) (imposing an upward departure of two full criminal history categories for a criminal history category under the Guidelines that did not adequately reflect the seriousness of the defendant’s past criminal conduct or the likelihood that the defendant would commit other crimes, after providing the parties with notice of a potential sua sponte upward departure and permitting the parties to brief the issue), aff'd, 395 F.3d 823 (8th Cir.2005); United States v. Flores, 223 F.Supp.2d 1016 (N.D.Iowa 2002) (imposing a “horizontal” departure from criminal history category IV to category VI, and a six level “vertical” departure for under-representation of the seriousness of the defendant’s dangerousness, propensity for violence, extensive criminal history, and proclivity for recidivism, after providing notice of intent to depart sua sponte and permitting the parties to brief the issue), aff'd, 336 F.3d 760 (8th Cir.2003).

Moreover, according to data from the United States Sentencing Commission for fiscal year 2003, the latest such data available, the median sentence for drug-trafficking offenses in the Northern District of Iowa is 120 months, which is not only twice the national median of 60 months for such offenses, but the highest median sentence for such offenses in the nation. This District’s median sentence for drug-trafficking offenses is also well in excess of the medi- ■ an sentence of 84 months for such offenses for district courts in the Eighth Circuit, at least double the median sentence for such offenses for district courts in the First, Third, Tenth, and District of Columbia Circuits, and triple or nearly triple the median sentence for such offenses for district courts in the Second, Fifth, and Ninth Circuits. Even recognizing that there are other factors involved, where this District has the highest median sentence in the nation for drug-trafficking offenses, it cannot be said that I or any other judge in this District is habitually a lenient sentencer.

Thus, the issue is not, or should not be, whether or not I am an excessively lenient sentencer. I am not. What I am is a very experienced sentencer, having sentenced over 1,400 defendants to prison, where the vast majority of those defendants were sentenced for drug-trafficking crimes. This is no surprise, given that our District had the sixth highest criminal caseload per judge in the nation for 2001 through 2003, behind five districts in states along the southwestern border of the United States.

Yet, I am compelled to examine more closely what makes such a huge disparity between the national median sentence and this District’s median sentence happen, and, furthermore, whether such a disparity is acceptable. As to the cause of such a disparity, even if every judge in this District were to sentence every defendant at the top of the Guidelines range, the result would not be a doubling of the nationwide median sentence in this District. Some part of the high median sentence for drug-trafficking offenses in this District may be attributable to the higher-than-average number of drug-trafficking offenses involving methamphetamine in Iowa. Nevertheless, I believe that the high median sentence is substantially attributable to the policies of the United States Attorney’s Office in this District. Those policies include charging and prosecuting the maximum possible drug quantities with very little leniency; making extraordinary use of information obtained from proffers by defendants pursuant to U.S.S.G. § 1B1.8; making low recommendations for substantial assistance departures, which in 2004, the year Saenz was originally sentenced, averaged only 17.5 percent in cases in which I was the sentencing judge; and limiting the sentencing judge’s discretion in substantial assistance cases by making one or both substantial assistance motions on only one count against a defendant, but not on other counts, so that a mandatory minimum sentence applies to at least one count against a defendant, even if that defendant provided substantial assistance. Every visiting judge to come to this District for sentencings has commented on how unusual and unfair this last policy is. Thus, the reality is that, even in the post-Blakely and post-Booker federal sentencing scheme, most of the discretion to determine defendants’ sentencing ranges lies with the charging and prosecuting authorities, the United States Attorneys, who determine the drug quantities on which sentences will be based, and when motions for substantial assistance reductions will be made, not with federal judges. I observe, further, that while federal judges, with lifetime appointments, are constrained by statute and standards of review to be fair and reasonable in sentencing, federal prosecutors, who are temporary political appointees, are too likely to have an agenda to be perceived to be “tough on crime.” Thus, I would suggest that the shocking disparity between this District’s and the nation’s median sentences for drug-trafficking offenses is primarily attributable to the exercise of prosecutorial discretion.

I am not alone in this observation. In his concurring opinion in United States v. Flores, 336 F.3d 760 (8th Cir.2003), Judge Bright opined as follows:

This court and every court ought to give due deference to the sentencing decisions of the district judge. However, the Sentencing Guidelines and other changes limit the discretion of the district judge. This does not mean that sentencing disparities have been eliminated or that injustice does not exist, because it does. What it has come to mean is that much of the discretion in sentencing decisions unfortunately falls to persons far less qualified to judge an offender than the district judge. While we say the district judge sentences the offender, in fact, the prosecutor, as I have shown in a number of opinions, often has more input into the sentence to be imposed than does the district judge.

Flores, 336 F.3d at 765-66 (Bright, J., concurring). Thus, the reality of the present sentencing scheme is that discretion has shifted from the sentencing judge to the prosecutor, which has resulted in, or at least substantially contributed to, disparities in sentences from district to district.

As to whether such a huge disparity between this District’s median sentence for drug-trafficking offenses and the national median sentence for such offenses is acceptable, the goals of federal sentencing purportedly include imposition of sentences that are “sufficient, but not greater than necessary,” and “avoid[ance of] unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct.” See 18 U.S.C. § 3553(a). In my view, a District’s median sentence that is twice the national median simply does not comport with these goals. It is, instead, an unacceptable disparity.

Thus, what I believe must be scrutinized more carefully is not whether particular judges are excessively lenient in isolated cases, but whether the sentencing scheme places too much discretion in the hands of federal prosecutors, with the result that there are staggering disparities between median sentences for some Districts and the median sentence for the nation as a whole. At the very least, the “reasonableness” of a judge’s substantial assistance departures and other sentencing decisions should be evaluated in the context of the realities of federal sentencing, including policies of the local United States Attorney’s Office that create disparities between the median sentence in a particular district and the median sentence nationwide. I am puzzled by a sentencing scheme that appears to give far more deference to the exercise of discretion by prosecutors than to the exercise of discretion by experienced federal district court judges, where the latter are more likely than the former to have developed a sense of what is fair and reasonable in sentencing through their experience with hundreds of cases and their knowledge of nationwide practices.

B. Legal Standards For Substantial Assistance Departures

Let us be clear: My difference with the recent string of reversals of my sentencing decisions is over the limited issue of what constitutes an “extraordinary” downward departure for substantial assistance, not what constitutes “reasonable” sentencing generally. In the context of that narrow issue, I hasten to say, first, that I agree with the Circuit Court’s analytical framework for determining whether and to what extent a downward departure for substantial assistance is appropriate.

1. Points of agreement

Specifically, the now-advisory United States Sentencing Guidelines authorize a downward departure for “substantial assistance,” as follows:

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.

U.S.S.G. § 5K1.1. Similarly, 18 U.S.C. § 3553(e) provides a statutory authorization for 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.” However, this statutory provision, likewise, invokes the Guidelines factors, because it provides that “[s]uch 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(3). Based on this statutory language, the Eighth Circuit Court of Appeals has recognized that, whether the government’s motion for a substantial assistance reduction is pursuant to § 5K1.1 or § 3553(e), “review of a reduction for substantial assistance typically centers on the non-exhaustive list of factors set forth in § 5K1.1, which the district court should consider in making its determination.” United States v. Saenz, 428 F.3d 1159, 1162 (8th Cir.2005) (noting that “the government moved to reduce the sentence under U.S.S.G. § 5K1.1 and 18 U.S.C. § 3553(e), based on Saenz’s provision of substantial assistance”); see also United States v. Christenson, 403 F.3d 1006, 1008 (8th Cir.2005) (under the “advisory guidelines ... substantial assistance departures are constrained by U.S.S.G. § 5K1.1,” citing Melendez v. United States, 518 U.S. 120, 129, 116 S.Ct. 2057, 135 L.Ed.2d 427 (1996)), aff'd by an equally divided court, 424 F.3d 852 (8th Cir.2005) (en banc).

Furthermore, I cannot dispute, nor would I wish to, that the list of factors in § 5K1.1 is “non-exhaustive,” but even so, “[t]he extent of a departure or reduction pursuant to § 5K1.1 or § 3553(e) ‘can be based only on assistance-related considerations.’ ” Id. (quoting United States v. Pepper, 412 F.3d 995, 998 (8th Cir.2005)). Having approached the calculation hundreds of times myself, I also fervently agree with the Circuit Court that, even when a sentencing court considers only assistance-related factors, “[t]he appropriate degree of sentencing reduction cannot be calculated with ‘mathematical precision.’ ” Saenz, 428 F.3d at 1164 (quoting United States v. Haack, 403 F.3d 997, 1005 (8th Cir.2005), cert. denied, — - U.S. -, 126 S.Ct. 276, 163 L.Ed.2d 246 (2005)).

I also agree wholeheartedly with the Circuit Court’s recent clarification of the meaning of one of the § 5K1.1 factors, which requires the sentencing court to “tak[e] into consideration the government’s evaluation of the assistance rendered.” U.S.S.G. § 5K1.1(a)(1). Assistant United States Attorneys in my district have persistently misconstrued this provision to require the sentencing court to give substantial weight to the government’s recommendation concerning the extent of any downward departure. However, the Circuit Court has now consistently rejected such a construction, holding that, in determining whether and to what extent to depart, “[t]he government’s recommendation [of the extent of the resulting departure] is not ... controlling and ultimately the district court determines the appropriate reduction.” United States v. Burns, 438 F.3d 826, 829-30 (8th Cir.2006) (citing U.S.S.G. § 5Kl.l(a) and Haack, 403 F.3d at 1005). More specifically still, the Circuit Court has recognized that there is a difference between the government’s “evaluation” of the extent of the defendant’s assistance, which is entitled to significant weight, and the government’s “valuation” of that assistance, which is not, particularly where such “valuation” is inadequately explained. Saenz, 428 F.3d at 1164 (rejecting the government’s assertion that the sentencing court’s reduction was unreasonable because it “greatly exceeded that recommended by the United States Attorney,” based on the distinction between “evaluation” and “valuation”); Haack, 403 F.3d at 1005 (rejecting the government’s argument that the sentencing court did not take into consideration the government’s recommendation concerning the extent of the appropriate departure, because a district court has the discretion to find that the government’s recommended reduction does not fully compensate the defendant for the significance and usefulness of his assistance, and because the government’s recommendation is only a part of one of the five factors to be considered under § 5K1.1); United States v. Pizano, 403 F.3d 991, 995 (8th Cir.2005) (the sentencing court properly rejected the government’s recommendation regarding the extent of the departure where the sentencing court found that the government’s recommendation did not take into consideration all pertinent factors). At the very least, the Circuit Court has explained, “ ‘[a] recommendation by the government that does not adequately explain its reasoning is entitled to less weight ... than a more fully explained recommendation.’ ” Burns, 438 F.3d at 829-30 (quoting Haack, 403 F.3d at 1005 n. 2). I can only hope that the Circuit Court’s clarity and consistency on this point will put an end to the routine practice by the United States Attorney’s Office in this District of making ridiculously stingy recommendations concerning the extent to which the court should depart downward for a defendant’s substantial assistance, with no explication of the basis for such recommendations, accompanied by unfounded assertions that the court must then give such recommendations substantial deference.

I also do not dispute for a moment that the Circuit Court is “charged with considering whether the extent of a reduction in the now-advisory guideline sentence or below the statutory mandatory sentence is ‘reasonable,’ and that [the appellate court] review[s] the district court’s decision for abuse of discretion.” Saenz, 428 F.3d at 1162 (citing Dalton, 404 F.3d at 1032); accord United States v. Coyle, 429 F.3d 1192, 1193 (8th Cir.2005) (also citing Dalton ). I also concur in the Circuit Court’s position that the determination of whether the sentence ultimately resulting from a substantial assistance departure is “reasonable” should be “ ‘guided by the sentencing factors listed in 18 U.S.C. § 3553(a).’” Burns, 438 F.3d at 828-29 (quoting United States v. Pizano, 403 F.3d 991, 995 (8th Cir.2005)); Christenson, 403 F.3d at 1009 (determining reasonableness of the sentence in light of the § 3553(a) factors); see also Haack, 403 F.3d at 1002 (“[T]he sentencing judge must consider the Guidelines and all of the other factors listed in section 3553(a).”). I would even go so far as to agree with the Circuit Court that “ ‘[a]n extraordinary reduction must be supported by extraordinary circumstances.’ ” Saenz, 428 F.3d at 1162 (quoting United States v. Dalton, 404 F.3d 1029, 1033 (8th Cir.2005)); see also Coyle, 429 F.3d at 1193 (also citing this proposition from Dalton).

Thus, it is not the general framework for substantial assistance downward departures that is my bone of contention.

2. The point of disagreement

What I vigorously dispute is using 50 percent as an arbitrary benchmark for what constitutes an “unreasonable” and “extraordinary” reduction for substantial assistance. Specifically, in United States v. Dalton, 404 F.3d 1029 (8th Cir.2005), in an attempt to support a holding that the 75 percent reduction that I had made in that case was “extraordinary,” the Circuit Court cited United States v. Enriquez, 205 F.3d 345 (8th Cir.), cert. denied, 531 U.S. 890, 121 S.Ct. 214, 148 L.Ed.2d 151 (2000), as describing a 50 percent downward departure as “ ‘an extraordinary sentence reduction.’ ” Dalton, 404 F.3d at 1033 (quoting Enriquez, 205 F.3d at 348). Thus, the decision in Dalton was the first to suggest that 50 percent is the benchmark for what constitutes an “extraordinary” reduction for substantial assistance. Subsequently, in the decision on appeal in this case, United States v. Saenz, 428 F.3d 1159 (8th Cir.2005), the Circuit Court went a step further, apparently establishing a 50 percent downward departure for substantial assistance as ipso facto “extraordinary,” by relying on the Dalton court’s “favorabl[e] citation” of the “observation [in Enriquez ] that a 50 percent downward departure was an ‘extraordinary sentence reduction.’ ” Saenz, 428 F.3d at 1162 (quoting Enriquez, 205 F.3d at 348). In contrast, I believe that reliance on Enri-quez for the proposition that 50 percent is the benchmark for an “extraordinary” substantial assistance reduction is extraordinarily strained and, furthermore, that the basic proposition that a 50 percent reduction for substantial assistance is “extraordinary” is simply wrong.

a. The legal ñaw

First, the comment in Enriquez upon which the Circuit Court relied in Dalton and Saenz was not made in the context of a determination of whether a district court’s downward departure for substantial assistance was “unreasonable” or “extraordinary.” Instead, in Enriquez, the defendant argued “that he should be allowed to withdraw his plea because the government failed to keep an alleged promise to recommend an above-average sentence reduction for his wife.” Enri-quez, 205 F.3d at 348. The Circuit Court concluded that the district court had not erred in finding that there was no such promise. Id. Only then did the Circuit Court comment, apparently as an afterthought, that, “as a practical matter, Mrs. Enriquez actually did receive an extraordinary sentence reduction of 50 per cent., as opposed to the 20 per cent, expected.” Id. I cannot believe that an off-hand statement, which is plainly dicta in the decision in which it appears, could possibly have been intended to establish the benchmark for what constitutes an “unreasonable” or “extraordinary” downward departure in the very different context of a reduction for substantial assistance. Certainly, there was no attempt in Enriquez (or indeed, in the subsequent decisions in Dalton and Saenz) to provide a reasoned basis for establishing a 50 percent reduction as the benchmark for “unreasonableness” of a reduction, whether the reduction is for substantial assistance or for any other reason. Moreover, to the extent that the court in Enriqtiez provided any basis for labeling a 50 percent reduction “extraordinary,” the basis was that only a 20 percent reduction was “expected,” and even then, there was no explanation of the basis on which only a 20 percent reduction was “expected.” Id. Thus, the decision in Enriquez does not reasonably stand for the proposition that a 50 percent reduction in sentence for any reason, let alone for substantial assistance, is “extraordinary.”

b. The factual flaw

Whatever the basis for or purpose of the Circuit Court’s observation in Enriquez that a 50 percent reduction in the defendant’s wife’s sentence was “extraordinary,” the proposition that a 50 percent reduction for substantial assistance is “extraordinary” is demonstrably wrong. Even before statistics became available this winter from the United States Sentencing Commission, I was confident that a 50 percent reduction in substantial assistance cases was not extraordinary in terms of national practice by district court judges. Ever since my appointment as a United States District Court Judge in 1994, I have undertaken substantial inquiry of other district court judges I have met at various meetings and seminars, both within our Circuit and nationally, to find out what the sentencing practices were for substantial assistance motions in their respective districts. A substantial number have told me that a 50 percent reduction was not at all unusual, especially in those districts where the prosecutors do not make a specific recommendation to the sentencing judge regarding the extent of the departure. This inquiry expanded when I was appointed several years ago to the Defender Services Committee of the Judicial Conference of the United States, where I now have the opportunity to meet with all of the nation’s Federal Public Defenders and learn first hand from the Federal Defender in each district what the substantial assistance policies are. Thus, the information I learned anecdotally over the past eleven years on the nature and extent of substantial assistance reductions was simply reinforced by recent data from the United States Sentencing Commission.

That data, embodied in the U.S. SENTENCING Commission Special Post-BookeR Coding Project: InfoRmation for All Cases: Data ExtRaction as of February 1, 2006 (Feb. 14, 2006) (Special Post-Booker Coding Project Report), clearly establishes that a 50 percent benchmárk for what is an “extraordinary” departure for substantial assistance is wholly without foundation. Instead, the Special Post-Booker Coding Project Report shows that the “median percent decrease from guideline minimum” for 8,854 substantial assistance cases in all offense categories is 49.9 percent. Speoial Post-Booker Coding Project Report, 19. Similarly, the Report shows that the “median percent decrease from guideline minimum” for 5,660 substantial assistance cases involving drug-trafficking offenses is 45.8 percent. Id. Thus, far from being “extraordinary,” a 50 percent reduction for substantial assistance very nearly approximates “the median” and, as such, is actually and necessarily “ordinary.”

C. The Lessons From The Sentencing Report

1. The range of “ordinary” substantial assistance departures

In addition to debunking the notion that a 50 percent reduction for substantial assistance is “extraordinary” and, instead, demonstrating that such a reduction is actually “ordinary,” the Special Post-Booker Coding Project Report teaches us still more. Admittedly, the Report does not provide a further breakdown of substantial assistance reductions, for example, by percentage ranges (how many sentences were reduced by 0-9 percent, 10-19 percent, 20-29 percent, etc.), nor does it indicate the range of actual substantial assistance reductions (for example, from 5 percent to 85 percent, with no reductions in excess of 85 percent, or 30 percent to 99 percent, with no reductions less than 30 percent), which might fine-tune our understanding of what kind of reduction really is “ordinary” and what kind is “extraordinary.” Nevertheless, three further observations can be made simply from the identification of the “median” substantial assistance reduction.

First, because the Report identifies the “median”- reduction for substantial assistance, rather than the “mean” or “average,” there must necessarily have been just as many such reductions above 50 percent as below 50 percent, not merely a few very large reductions off-setting much more numerous, but much smaller, supposedly “ordinary” reductions. Thus, if a 50 percent reduction for substantial assistance is the “median,” it follows that reductions at the low end — such as the 10 or 15 percent reductions that are commonly recommended by the United States Attorney’s Office in my district — must be recognized as “extraordinary,” albeit, “extraordinarily low.” Indeed, to reach the national median reduction for substantial assistance, I would have had to nearly triple the average recommendation of 17.5 percent by the United States Attorney’s Office in this District in 2004, the year Saenz was originally sentenced, in the 36 such cases in which I was the sentencing judge. Conversely, reductions at the high end, such as those exceeding 85 or 90 percent, must also be recognized as “extraordinary,” but “extraordinarily high.”

Second, because there were just as many substantial assistance reductions above 50 percent as below 50 percent, it follows that “ordinary” reductions fall within a range around 50 percent, perhaps from 40 percent to 60 percent, or even from 30 percent to 70 percent. The “median” reduction simply cannot be construed to be the demarcation between “ordinary” reductions and “extraordinary” reductions, with reductions below the “median” construed to be “ordinary” and those above the “median” construed to be “extraordinary.”

Third, not only does the empirical evidence gathered by the Sentencing Commission establish that a 50 percent benchmark for what constitutes an “extraordinary” reduction for substantial assistance is simply wrong, that empirical evidence also demonstrates that using such an unsupported benchmark is contrary to the policy goal of “reducing] unwarranted sentencing disparities,” which is still valid after the demise of mandatory sentencing guidelines. Saenz, 428 F.3d at 1164 (noting that this goal remains part of “the structure and theory” of the guidelines and a matter of “statutory command”); 18 U.S.C. § 3553(a)(6) (identifying as a factor that shall be considered in the imposition of a sentence “the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct”). This is so, because such a benchmark for “extraordinariness” is out of step with the reality of substantial assistance reductions nationwide.

2. The “reasonableness” of “starting in the middle”

With the empirical evidence provided by the Special Post-BookeR Coding Project Report, I must go yet another step beyond rejection of a 50 percent benchmark for what constitutes an “extraordinary” reduction for substantial assistance. In my view, if a 50 (49.9) percent reduction is the “median” reduction for substantial assistance, then far from defining the outer fringes of appropriate reductions, 50 percent should be the starting point for any determination of how much to reduce a defendant’s sentence based on substantial assistance. To the extent that the defendant’s assistance exceeds or fails to meet the “ordinary” level of assistance qualifying for a “substantial assistance” reduction, based on the court’s weighing of the pertinent § 5K1.1 factors, the court should make a reduction that is either higher or lower than 50 percent. In contrast, the Circuit Court seems to prefer either zero or the government’s recommendation as the starting point, or at the very least, believes that the starting point must be considerably less than 50 percent, because the Circuit Court focuses on a benchmark of 50 percent as constituting the outer limit for an “ordinary” reduction. Again, the Special Booicer Coding PROJECT RepoRt shows that the Circuit Court’s starting point relies on a faulty premise.

Moreover, even without regard to the actual median, nationwide, for substantial assistance reductions shown in the Speoial Booicer Coding Project Report, it seems to me that it is logical-and certainly “reasonable” — to begin the process of determining a defendant’s reduction for substantial assistance “in the middle” of the defendant’s Guidelines sentence. As noted above, a sentence within the Guidelines range is “presumptively reasonable.” See Myers, 439 F.3d at 417-18. It follows that a sentence “in the middle” of the Guidelines range would necessarily be “presumptively reasonable,” so that a sentencing judge could reasonably begin a determination of whether to increase or decrease a particular defendant’s sentence from the “middle” of the Guidelines range based on the pertinent factors. Similarly, where the possible range of substantial assistance reductions is 0 percent to 100 percent of the Guidelines sentence, it is logical to begin “in the middle” of that range, with a 50 percent reduction. The sentencing judge would then increase or decrease the percentage for a particular defendant’s substantial assistance reduction based on the sentencing court’s evaluation of the pertinent assistance-related factors. To my mind, starting “in the middle” of the possible reductions to determine a substantial assistance reduction makes just as much sense as starting at the “bottom,” with a 0 percent reduction, then increasing the percentage of reduction based on assistance-related factors found to be present, or starting at the “top,” with a 100 percent reduction, then decreasing the percentage of reduction based on assistance-related factors found to be absent or only partially present.

I believe that a further, and independent, ground for beginning the calculation of a substantial assistance reduction at 50 percent is that it makes sense in comparison to a statutory sentencing scheme that doubles the mandatory minimum sentence based on a defendant’s single prior felony drug conviction. 21 U.S.C. § 841(b) (imposing a ten-year mandatory minimum for a § 841(a) offense involving certain quantities of controlled substances, but “[i]f any person commits such a violation after a prior conviction for a felony drug offense has become final, such person shall be sentenced to a term of imprisonment which may not be less than 20 years and not more than life imprisonment,” and imposing doublings of lesser mandatory minimums for lesser quantities, based on a prior conviction for a felony drug offense). This doubling of the mandatory minimum sentence for a prior felony drug conviction applies, even if the prior felony drug conviction is a state conviction that the charging state does not designate as a felony, see U.S.S.G. § 4B1.2, comment n. 1, or is one for which the defendant received a suspended sentence and probation and, thus, was not considered a “final judgment” by the state. See United States v. Slicer, 361 F.3d 1085, 1087-88 (8th Cir.), cert. denied, 543 U.S. 914, 125 S.Ct. 90, 160 L.Ed.2d 196 (2004); United States v. Ortega, 150 F.3d 937, 948 (8th Cir.1998), cert. denied, 525 U.S. 1087, 119 S.Ct. 837, 142 L.Ed.2d 693 (1999). Where a defendant’s sentence can be doubled based on a prior drug conviction, with no other aggravating factors, and where that conviction is, in turn, more than likely the result of the defendant’s addiction, it makes sense, in light of the factors set forth in 18 U.S.C. § 3553(a), and in terms of fairness, justice, mercy, to begin consideration of the appropriate reduction for a defendant’s substantial assistance at half of the defendant’s guideline sentence. This is so, in my view, because the policy goals of sentencing are at least as well served by halving a sentence for substantial assistance as they are by doubling a sentence for a single prior felony drug conviction.

3. Reorientation of perceptions

In those decisions rejecting my substantial assistance reductions in excess of 50 percent as “extraordinary,” the Circuit Court relied on three intertwined grounds, in addition to the erroneous postulate that a 50 percent reduction is “extraordinary.” First, the Circuit Court found that I relied on too few of the § 5K1.1 factors in granting such “extraordinary” reductions. See Saenz, 428 F.3d at 1162-63 (finding that I improperly relied on “timeliness and truthfulness” as sufficient to justify a 68 percent reduction, because even “a strong showing in those areas” did not make reasonable “an extraordinary departure or reduction of more than 50 percent ... without regard to the nature and extent of the defendant’s assistance, the significance and usefulness of the assistance, or any danger or risk of injury suffered by the cooperating defendant”). Second, the Circuit Court found that my “extraordinary” reductions left no room for larger reductions for defendants who provided even more “extraordinary” assistance. See Coyle, 429 F.3d at 1193-94 (rejecting a 73 percent reduction because “a reduction of this degree must be reserved for cooperating defendants who provide assistance that is much more extensive and significant than what Coyle offered,” and commenting that “[tjhere is a good deal of room between the government’s modest recommendation [15 percent] and the district court’s generous departure to recognize this defendant’s assistance without at the same time skewing the degree of reduction that must be granted to future defendants whose performance on the continuum of substantial assistance deserves more credit than Coyle’s”); Saenz, 428 F.3d at 1163 (rejecting a 68 percent reduction based on “timeliness and truthfulness” because “ ‘[a] departure of this extent leaves little room for greater departures for defendants who actually [did more],’ ” quoting Haack, 403 F.3d at 1005-06). Third, the Circuit Court found that some cooperating defendants present “a close question” as to whether or not the government should file a substantial assistance motion at all, and if the government knows that “timely and truthful cooperation automatically justifies cutting a sentence in half when a motion is filed, then it is reasonable to expect that many of these borderline defendants will fail to qualify when the government makes a ‘rational assessment of the cost and benefit that would flow from moving.’ ” Saenz, 428 F.3d at 1163 (quoting Wade v. United States, 504 U.S. 181, 187, 112 S.Ct. 1840, 118 L.Ed.2d 524 (1992)). However, once a 50 percent benchmark for “extraordinary” reductions has been rejected — as it must be in light of the empirical evidence in the SpeCial Post-BookeR Coding PROJECT Report — these three grounds for rejecting several of my substantial assistance reductions in excess of 50 percent also become untenable, and a reorientation of perceptions is required.

The first objection — that I relied on too few of the § 5K1.1 factors as a basis for large substantial assistance reductions, see Saenz, 428 F.3d at 1162-63 — is troubling, because it suggests that all five factors must be present, or present in some relative proportions, to justify a reduction or, at least, a reduction in excess of what is deemed “ordinary,” but § 5K1.1 says no such thing. Neither this guideline provision nor its accompanying application notes identify some hierarchy or relative weight among the enumerated factors or some requirement that all or some number of the enumerated factors be present before making any reduction, whether “ordinary” or “extraordinary.” Compare U.S.S.G. § 5C1.2 (“safety valve” guideline requiring that all listed criteria be satisfied to disregard a statutory minimum sentence). In my view, § 5K1.1 and the accompanying application notes permit the sentencing judge to determine lohich of the enumerated factors, or other “assistance-related considerations,” are present, see Saenz, 428 F.3d at 1162 (the list of factors in § 5K1.1 is “non-exclusive,” but a substantial assistance departure “ ‘can be based only on assistance-related considerations’ ”) (quoting Pepper, 412 F.3d at 998), and then to determine the weight of the factors actually present to decide whether and how much to reduce a defendant’s sentence. In other words, “extraordinary” “timeliness,” U.S.S.G. § 5Kl.l(a)(5), or “truthfulness,” id. at (a)(2), either standing alone or in combination with other factors, might well be sufficient to justify an “extraordinary” departure. Indeed, I suggested in this defendant’s original sentencing that “ ‘any defendant who is timely, completely truthful, complete, reliable, and tells the government everything they need to know deserves more than 50 percent [reduction].’ ” See Saenz, 428 F.3d at 1162-63 (quoting my comments in the sentencing). This I still maintain, now that the assertion that a 50 percent reduction is somehow “extraordinary” must be removed from the equation and replaced with recognition of the fact that a 50 percent reduction is essentially “ordinary,” because the conduct I identified is, at the very least, entitled to an “ordinary” reduction within the range around the national median reduction of 49.9 percent, even if that conduct is not “extraordinary.”

The second remaining objection — that reductions in excess of 50 percent, where only one or two of the § 5K1.1 factors are present, leave no room for larger reductions for defendants who have provided even more “extraordinary” assistance, see Coyle, 429 F.3d at 1193-94; Saenz, 428 F.3d at 1163; Haack, 403 F.3d at 1005-06—becomes equally untenable, once a 50 percent reduction, and indeed, a reduction in a range around 50 percent, is recognized as “ordinary.” Undoubtedly, a defendant who actually participates in controlled buys, wears wires, gives grand jury and trial testimony, or is subjected to significant risk of injury or death to the defendant or his family is entitled to a larger reduction than a defendant who is merely “timely” and “truthful.” See, e.g., Saenz, 428 F.3d at 1163 (quoting such factors identified in Haack, 403 F.3d at 1005-06). However, the question is where “room” for such a larger reduction should be found. In light of the evidence in the Special Post-BooKER Coding Project Report that a 50 percent reduction is essentially “ordinary,” that “room” must be found well in excess of 50 percent, and indeed, well in excess of that part of the “ordinary” range that lies on the high side of 50 percent.

The problem with the third remaining objection — that United States Attorneys will have a disincentive to make substantial assistance motions in close cases, if some subset of § 5K1.1 factors is sufficient to warrant cutting a sentence in half, Saenz, 428 F.3d at 1163 — likewise is that this objection is symptomatic of the misconception that a 50 percent reduction is “extraordinary.” What is required is not a reorientation of sentencing judges’ perceptions of what constitutes an “extraordinary” reduction, but a reorientation of United States Attorneys’ perceptions of what constitutes an “ordinary” reduction. The SpeCial Post-Booker Coding Project Repokt should make clear that an expectation that an “ordinary” reduction for substantial assistance should only be 10 to 15 percent is unfounded. Because criminal investigations and prosecutions are heavily reliant on substantial assistance from defendants already under arrest or indictment, the incentive to obtain the substantial assistance of such defendants will remain. In light of that incentive, the need to reward substantial assistance with motions for downward departures will also remain, even if United States Attorneys must now have a more realistic perception of what is an “ordinary” reduction based upon a “substantial assistance” motion.

Finally, in light of the reorientation of perceptions concerning what constitutes either an “ordinary” or an “extraordinary” reduction for substantial assistance in light of the Special Post-BooKER Coding Projeot Report, it becomes apparent that reductions in excess of 50 percent are more likely to comply with the mandates of 18 U.S.C. § 3553(a) than has sometimes been asserted. Compare Burns, 438 F.3d at 830-31 (finding that a 60 percent reduction comported with § 3553(a) sentencing objectives and considerations); Christenson, 403 F.3d at 1009 (finding that a 75 percent reduction comported with § 3553(a) sentencing objectives and considerations); Pizano, 403 F.3d at 996 (finding that a 75 percent reduction comported with § 3553(a) sentencing objectives and considerations); with Coyle, 429 F.3d at 1193-94 (while not expressly invoking § 3553(a), finding that a reduction of 73 percent was not appropriate, because to “avoid unwarranted sentencing disparities”, defendants “offering a greater degree of assistance must receive reductions in the range of 80 to 100 percent”); Saenz, 428 F.3d at 1164 (finding a 68 percent reduction was not appropriate, also without expressly invoking § 3553(a), but finding that such a reduction was inappropriate, in part, in light of “the overall structure and theory of the guidelines, including the statutory command to reduce unwarranted sentence disparities”); Haack, 403 F.3d at 1006 (expressly invoking § 3553(a) factors as a basis for rejecting an 85 percent reduction). For example, where a 50 percent reduction is the “median” for substantial assistance reductions, a reduction in excess of 50 percent is much more likely than one might have supposed “to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense,” 18 U.S.C. § 3553(a)(2)(A), and, not least, “to avoid unwarranted sentence disparities.” 18 U.S.C. § 3553(a)(6).

Therefore, in light of the Speoial Post-BooKer Coding Project Report, I believe that it is plain that a 50 percent reduction for substantial assistance is not “extraordinary,” but “ordinary,” and that, consequently, 50 percent should be the starting point for determination of the extent of a substantial assistance reduction in each case.

II. SAENZ’S RESENTENCING

I must now turn to the question of the appropriate sentence in this case, upon remand from the Circuit Court, which found that my original 68 percent reduction in sentence for substantial assistance was “excessive” and “unreasonable.” See Saenz, 428 F.3d at 1165. In order to determine the appropriate reduction and sentence upon remand, I must briefly summarize the background to the original sentence, the original sentence itself, the basis for the Circuit Court’s reversal, and the evidence and arguments presented at the resentencing hearing on March 3, 2006.

A. Background And Original Sentence

Saenz and her then-husband, Rudolph, were arrested after law enforcement officers discovered marijuana in two vans in a hotel parking lot in Onawa, Iowa. One van was parked in front of the room where Saenz and her husband were staying, and Saenz and her husband admitted traveling in one of the vans. The couple staying in the room next to the Saenzes, Veronica Rodriguez-Cortez and Jose Rodriguez-Medrano, were also arrested. Law enforcement officers learned from this foursome that there was a third vehicle traveling with the group. That information led to the discovery of the third vehicle and the arrest of Christian Jimenez, who was a passenger in that vehicle. Rodriguez-Me-drano, Rodriguez-Cortez, Rudolph Saenz, and Jimenez all eventually pleaded guilty to drug-trafficking offenses. Kim Saenz pleaded guilty to one count of conspiracy to distribute marijuana.

At Kim Saenz’s original sentencing, the government moved for a reduction in her sentence for substantial assistance under both U.S.S.G. § 5K1.1 and 18 U.S.C. § 3553(e). According to the government, Saenz’s cooperation consisted of talking to law enforcement officers about her co-conspirators on the same day that she was arrested; providing information within a day or two that assisted in preparing affidavits in support of criminal complaints; testifying at the sentencing hearing of Rodriguez-Medrano, where she corroborated testimony of Rodriguez-Cortez regarding the use of minors, including Kim Saenz’s children, as passengers in the vehicles to avoid detection; and attempts to cooperate with Drug Enforcement Administration (DEA) agents in San Diego while on pre-trial release, including providing information used to procure one search warrant, although the information Saenz provided was outdated and the search pursuant to the warrant did not lead to any arrests or seizures.

The presentence investigation report recommended a sentencing range of 63 to 78 months of imprisonment under the then-mandatory United States Sentencing Guidelines, with a mandatory minimum sentence of 60 months. In light of Saenz’s cooperation, however, the government recommended a 30 percent downward departure for substantial assistance to 44 months of imprisonment. I rejected the government’s recommended downward departure in this case, as in other cases, as “arbitrary and capricious and without any basis because [the government] fail[s] to disclose how [it] arrive[s] at [its] decisions.” Original Sentencing Transcript at 17. Instead, I found that Saenz was “exceptionally timely” in her cooperation and that there was “no indication that she was anything but totally truthful, complete, and reliable and that she gave [the government] all the information she could.” Id. at 16. Moreover, I expressed my view that “any defendant who is timely, completely truthful, complete, reliable, and tells the government everything they need to know deserves more than 50 percent” reduction. Id. at 17. Therefore, based on my evaluation of the pertinent factors set forth in U.S.S.G. § 5K1.1, I reduced Saenz’s sentence by approximately 68 percent to 20 months of imprisonment.

B. The Decision On Appeal

The government appealed my initial sentence, and a panel of the Eighth Circuit Court of Appeals reversed and remanded for resentencing. See United States v. Saenz, 428 F.3d 1159 (8th Cir.2005). As explained above, the Circuit Court relied, in part, on the now discredited 50 percent benchmark for “extraordinariness” in substantial assistance reductions as a basis for reversing the reduction that I had made, Saenz, 428 F.3d at 1162, but also rejected the government’s argument that the sentence that I had imposed was “unreasonable” because it varied from the government’s recommended reduction. Id. at 1164. The Circuit Court summarized its reasons for rejecting the sentence that I had imposed, as follows:

Our decision in this case ... turns ... on our independent conclusion that the degree of reduction is not reasonable in light of the evidence concerning the defendant’s assistance, the factors set forth in § 5K1.1, and the overall structure and theory of the guidelines, including the statutory command to reduce unwarranted sentence disparities. The appropriate degree of sentencing reduction cannot be calculated with “mathematical precision/’ Haack, 403 F.3d at 1005, and there is a range of reasonableness available to the district court in any given case. On this record, however, we conclude that the district court’s analysis was flawed by its conclusion that timely and truthful cooperation always warrants a reduction of more than 50 percent, and that the degree of reduction was excessive and unreasonable under the circumstances of this case.

Saenz, 428 F.3d at 1164-65. Consequently, the Circuit Court vacated my judgment and remanded this case for resentencing consistent with its opinion. Id.

C. Proceedings On Remand

1. Additional evidence

Pursuant to the remand from the Circuit Court, I held a resentencing hearing on March 3, 2006. The defendant — who has completed her original sentence, divorced Rudolph Saenz, remarried, and reverted to her maiden name of Kimberly Edwards— was personally present. I will refer to the defendant as Kimberly Edwards for the remainder of this ruling. Edwards now lives in California, so it was with considerable difficulty that she was accompanied by her three children, over whom she has regained custody; her new husband, for whom the Red Cross had procured emergency leave from the Army, even though he is currently posted to Fort Lewis, in Washington state, anticipating imminent deployment to Iraq; and her current employer, Liliana Riquer. Edwards and Ms. Riquer both testified at the resentencing hearing.

Edwards testified as to both her efforts to provide substantial assistance to the government prior to her original sentencing and as to her efforts to rehabilitate herself since completing her prison term. As to the extent of her assistance prior to her original sentencing, Edwards testified that, while she was incarcerated in Iowa pending sentencing, she was released to go to California to assist DEA and border patrol agents. In addition to providing information for a search warrant there, Edwards testified that she actually led law enforcement officers to the house from which the drug-trafficking operation in which she was involved had been initiated, which law enforcement officers had previously been unable to locate. Edwards testified that she also provided information about cross-border drug activities and volunteered to go to Mexico to assist in an investigation of those activities, but that the government was unable to obtain the necessary “paperwork” to allow her to do so.

Edwards also testified that, while she was incarcerated in Iowa pending sentencing, she had been harassed and threatened by associates of her co-defendant, Veronica Rodriguez-Cortez, who was also incarcerated in the same jail. Such harassment and threats arose from the perception by Rodriguez-Cortez and her associates that Edwards was “a snitch.” Specifically, Edwards testified that, after she had returned from California and was once again placed in presentence incarceration, she frequently overheard talking behind her back referring to her as a “snitch bitch.” She also testified that she was subjected to various confrontations with Rodriguez-Cortez, because the prisoners were locked out of their two-person cells during the day and were forced to spend time as a group in “general population.” After a “mediation” ordered by jail officials between Rodriguez-Cortez and Edwards, which was intended to defuse the tension between them, Edwards was involved in an “altercation” with two associates of Rodriguez-Cortez. Edwards also testified that jail officials intercepted correspondence or other communications from Rodriguez-Cortez in which Rodriguez-Cortez purportedly threatened Edwards’s children. Edwards testified that, during the period that she was in general population, she suffered threats and harassment almost daily whenever she was locked out of her cell. After three weeks in general population, jail officials determined that Edwards was at risk from other inmates and placed her in protective segregation (solitary confinement). Edwards remained in that status for the next six-and-one-half months until she began serving her sentence at a different facility.

Edwards also testified that, since completing her term of imprisonment, she has returned to California to live. She testified that she found a job with a mortgage company performing accounting activities just days after checking into a halfway house in California, soon obtained leave to purchase a car and to move into an apartment, and shortly thereafter regained custody of her children. She also testified that she remarried in November 2005, and intends to follow her husband to Washington state, where he is stationed as a private in the Army pending deployment to Iraq. Both Edwards and her boss, Liliana Riquer, testified that, after she moves to Washington, Edwards will continue to work for her California employer “virtually,” ie., via computer access to company files, because her employer considers her invaluable. Also, Edwards testified that she has obtained another job in Washington and has enrolled in an on-line degree program to complete a bachelor’s degree in accounting.

In addition to the testimony of Edwards and her employer, Edwards submitted as her Exhibit A various letters of support concerning the completeness of her rehabilitation. She also submitted into evidence as her Exhibit B the February 14, 2006, version of the Speoial Post-BooKER Coding PROJECT Report, which had already come to the court’s attention in the form of an earlier version, dated January 5, 2006.

The government did not dispute any of Edwards’s testimony on March 3, 2006. However, the government did elicit from Edwards an admission that she had not raised during her original sentencing hearing the threats and harassment that she allegedly suffered during presentence incarceration, although Edwards testified that she had told her attorney about it at that time. The government offered no additional evidence.

At the resentencing hearing, at my request, a United States Probation Officer also presented information concerning my sentencings, which I had asked the Probation Office to extract from its files. That information reflected that, in 2004, the year that Edwards was originally sentenced, I entertained 36 substantial assistance motions by the government, that the government’s average recommended reduction pursuant to those motions was 17.5 percent, that the government’s recommended reduction for Edwards was 30 percent, and that only 2 of the 36 recommendations by the government in cases before me in that year were in excess of 30 percent. The government was allowed to question the probation officer regarding this information, but did not elicit any further information about my sentencings or the government’s recommendations in 2004 or any other year.

2. Arguments of the parties

At the sentencing on March 3, 2006, t