Full opinion text
MEMORANDUM OPINION AND ORDER REGARDING DEFENDANT’S MOTION FOR DOWNWARD DEPARTURE BENNETT, District Judge. TABLE OF CONTENTS I.INTRODUCTION. OO A. Procedural Background. CO B. Factual Background. O 1. U.S.S.G. § 1B1.8 and its application in the federal districts O 2. Situation of the individual defendants. M a. Joseph John Johnson. tO b. John Joseph Ringis. CO c. Juan Carlos Valdivia-Cardona. ^ d. John Herman Buckendahl. Ol II. LEGAL ANALYSIS . A. Departure From The Sentencing Guidelines. 1. Discretion. 2. Authority v. discretion. 3. Analytical process . B. Authority To Depart... 1. A feature that potentially takes the case “outside the ‘heartland’ ” 2. Treatment of the feature under the Guidelines. a. Does U.S.S.G. § IB 1.8 consider the feature?. b. Is the feature considered or unmentioned?.926 3. Sufficiency of the feature to take the case out of the heartland.926 a. Disparities arising from prosecutorial discretion.926 b. The panel decision in Banuelos-Rodriguez.928 c. The Jones decision.929 d. Conflict with the structure and theory of the guidelines.931 i. Conflict with the “substantial assistance” guideline.931 ii. Conflict with the “safety valve” guideline.933 iii. Conflict with the guidelines as a whole.934 4. Prejudice to the defendants.935 a. The conundrums when § 1B1.8 protection is denied.936 b. Non-cooperators.936 i. Johnson’s prejudice.936 ii. Ringis’s prejudice.939 iii. Valdivia-Cardona’s prejudice.940 c. The cooperating defendant.941 III. CONCLUSION.943 This decision addresses what the Court of Appeals for this Circuit has described as an “anomalous byproduct of the Sentencing Guidelines,” the transfer of “discretion once held by judges to the government.” See United States v. Jones, 160 F.3d 473, 488 (8th Cir.1998). The specific question before the court is the following: Can disparities between this federal district and the vast majority of other districts in the availability of use immunity within the scope of United States Sentencing Guideline § 1B1.8 protection, as a result of the policy or practice of the respective United States Attorney’s Offices, provide a basis for downward departure in sentencing of defendants pleading guilty in the district in which denial of use immunity is the policy or practice? The question is presented by four defendants in separate cases, each involving slightly different situations: one of the defendants pleaded guilty without a plea agreement upon denial of his request for a plea agreement affording him some § 1B1.8 protection; two of the defendants pleaded guilty pursuant to plea agreements that provided them with no § 1B1.8 protection, but did not require their cooperation; and one defendant provided detailed disclosures pursuant to a plea agreement that provided him with no § 1B1.8 protection. The first three defendants assert that the lack of § 1B1.8 protection deprived them of the opportunity to make disclosures or provide cooperation that would have reduced their sentences, while the fourth asserts that his disclosures actually increased his sentence. All four assert that these consequences would not have been imposed upon them had they sought plea agreements in the Southern District of Iowa, or almost any other federal district, rather than the Northern District of Iowa, because the United States Attorney’s Offices in the overwhelming majority of federal districts routinely grant cooperating defendants use immunity within the scope of § 1B1.8 protection, while the United States Attorney’s Office for this District does not. The disparity between this and other districts in the availability of § 1B1.8 protection, they contend, takes their cases out of the “heartland” of the Guidelines, warranting a downward departure in each of their sentences. I. INTRODUCTION A. Procedural Background The rather complicated procedure these four separate cases have pursued to this point began on July 23, 1999, when the court sua sponte continued the sentencing of defendant Johnson in Case No. CR 99-4007-MWB to obtain further briefing from the parties on the question of the availability of a reduction or downward departure based on the government’s application of U.S.S.G. § 1B1.8. On July 30, 1999, Johnson filed a brief on the availability of such a ground for downward departure pursuant to the court’s oral order at the July 23, 1999, sentencing hearing. By written order dated August 2, 1999, the court set a deadline of September 7, 1999, for further briefing on the availability of a downward departure and scheduled a hearing on October 7, 1999, for the completion of Johnson’s sentencing. The court also invited the Federal Defender to submit a brief as amicus curiae. The government filed a resistance to downward departure in Johnson’s case on August 6, 1999, and a more fully developed brief on September 7,1999. The October 7, 1999, hearing was continued, and on October 21, 1999, the Federal Defender belatedly filed an amicus curiae brief in Johnson’s case. The government filed a supplemental memorandum regarding Johnson’s motion for downward departure on October 26,1999. Defendants Ringis, Valdivia-Cardona, and Buckendahl, all of whom are represented by the Federal Defender’s Office, notified the court in late October that they would also be seeking downward departures in their sentences on grounds similar to those asserted by Johnson. On October 27 and 28, the defendants in all four cases moved for a consolidated hearing on their motions for downward departure. Over the government’s objections, the court agreed that a consolidated hearing would be appropriate and therefore held such a hearing on November 12, 1999. At the consolidated hearing, the court heard evidence and arguments on the court’s authority to make a downward departure on the ground asserted. Following the consolidated hearing, the court came to the conclusion that it would be necessary to take all evidence pertaining to the sentence for each individual defendant before the court could determine whether it has the authority to make the requested downward departure, as well as whether such a downward departure is appropriate, in each individual’s case. However, the court also concluded that such evidentiary hearings should be set in close proximity to each other, in part to facilitate a consolidated appeal, if any, of the sentences by either the defendants or the government. Therefore, the court conducted individual sentencing hearings for defendants Johnson, Ringis, and Bucken-dahl on November 22,1999. The sentencing hearing for defendant Valdivia-Cardo-na, also originally scheduled for November 22, 1999, was continued, because the pre-sentence investigation report in his case had not yet been completed. Defendant Valdivia-Cardona’s individual sentencing hearing was eventually held on December 8,1999. In the same order setting separate sentencing hearings, the court also scheduled the completion of the individual sentencing hearings and imposition of sentence in each individual’s case for December 20, 1999. The present opinion memorializes the court’s disposition of each defendant’s motion for downward departure. B. Factual Background The court will begin its discussion of the factual background to the present motions for downward departure with a reprise of some of the evidence presented at the consolidated hearing. That evidence was proffered on the question of the court’s authority, as a general matter, to make a downward departure in sentencing on the basis of a disparity in policy or practice between the United States Attorney’s Offices for the federal districts regarding availability of “use immunity” within the scope of U.S.S.G. § 1B1.8 protection, and the existence of such a disparity. The court will then turn to a discussion of the factual background in each defendant’s case, as developed during the individual sentencing hearings. That evidence goes to the question of whether the court has the authority to grant an individual defendant a downward departure on the ground asserted, as well as to the question of whether a downward departure is warranted as a matter of fact in each defendant’s case. 1. U.S.S.G. § 1B1.8 and its application in the federal districts At the consolidated hearing on November 12, 1999, the defendants presented the testimony of Peter Hoffman, the former principal technical advisor to the United States Sentencing Commission, and Nicholas Drees, the Federal Defender for the Northern and Southern Districts of Iowa. The government objected to the testimony of Mr. Hoffman, at least in so far as that testimony was intended to explicate the purpose and effect of U.S.S.G. § 1B1.8, on the ground that it was inappropriate to consider on those issues anything other than the language of § 1B1.8 itself, other pertinent guidelines, and the official commentary to the guidelines. However, the court believes that the facts specifically presented here, to the extent they can be drawn from Mr. Hoffman’s testimony,' can also be gleaned, for the most part, from the Sentencing Guidelines themselves, or the commentaries, historical notes, and appendices thereto. The court therefore finds as follows: U.S.S.G. § 1B1.8 was not in the first draft of the Sentencing Guidelines. Instead, it was added by emergency amendment on June 15, 1988. See U.S.S.G. § 1B1.8, Historical Note; U.S.S.G. Appendix C, amendment 5. The stated purpose of the amendment was “to facilitate cooperation agreements by ensuring that certain information revealed by a defendant, as part of an agreement to cooperate with the government by providing information concerning unlawful activities of others, will not be used to increase the guideline sentence.” U.S.S.G. Appendix C, amend. 5. Mr. Hoffman testified, the government did not dispute, and the court therefore finds, that the amendment was requested in the first instance by the Department of Justice, with the later concurrence of the advisory committee of practitioners, which included members from the defense bar. The government does, however, dispute the relevance of this evidence concerning the genesis of the amendment. Mr. Drees testified, based on his own experience and the reports of his assistants, that there is a clear disparity in the use of U.S.S.G. § 1B1.8 between the Northern and Southern Districts of Iowa. While “use immunity” within the scope of § 1B1.8 protection is routinely a part of plea agreements negotiated in the Southern District, Mr. Drees testified that it is very rare in the Northern District. The government presented evidence that plea agreements in the Northern District do, upon very rare occasions, include “use immunity” terms that would fall within § IB 1.8 protection. However, the government conceded, when pressed, that it is the general “practice” — though the government would not admit to an official “policy” — of the United States Attorney’s Office for this district not to make available such “use immunity” within the scope of § 1B1.8 protection as part of plea agreements. Indeed, in response to the court’s questions, Assistant United States Attorney Rich Murphy, the chief of the criminal division of the United States Attorney’s Office for the Northern District of Iowa, acknowledged that the number of times he knew of that § 1B1.8 protection had been included in plea agreements in the Northern District of Iowa in the last five years could be counted on one hand. Mr. Drees’s testimony and the concessions of the government concerning the relative availability or unavailability of use immunity in the two districts are in accord with the undersigned’s own experience as a federal district judge in this district and a former magistrate judge in the Southern District; indeed, the undersigned cannot recall a single plea agreement in the Northern District coming to his notice that contained a use immunity provision within the scope of § 1B1.8 protection. The court therefore finds that there is a significant disparity between the two federal districts of Iowa in the availability of § 1B1.8 protection for defendants agreeing to plead guilty: Such protection is routinely available in the Southern District of Iowa and routinely — indeed, almost completely — unavailable in the Northern District, as a matter of a disparity in practice by the respective United States Attorney’s Offices. However, the parties agree, and the court finds, that defendants do, with some frequency, enter into plea or cooperation agreements in the Northern District of Iowa without the benefit of some kind of § 1B1.8 protection. The court finds that, for the “privilege” of pleading guilty in the Northern District of Iowa, a defendant must — except in situations so rare that the undersigned has never seen one — also accept denial of § 1B1.8 protection. The parties agree further that the “practice” concerning the availability of “use immunity” within the scope of U.S.S.G. § IB 1.8 protection in the Northern District of Iowa is clearly in the minority as a matter of nationwide practice, although no party was able to determine — despite efforts by both defendants and the prosecution — precisely how many of the ninety-four federal districts have such a “practice” or “policy.” The consensus of the parties appears to be that no more than three or four other federal districts routinely do not provide in plea agreements some degree of “use immunity” that comes within the scope of § 1B1.8 protection. The court so finds. With this general background, the court tons to the circumstances of the individual defendants. 2. Situation of the individual defendants As mentioned at the outset of this opinion, the requests for downward departures at issue here are presented by four defendants in separate cases, each involving slightly different situations: one of the defendants pleaded guilty without a plea agreement upon denial of his request for a plea agreement affording him some § 1B1.8 protection; two of the defendants pleaded guilty pursuant to plea agreements that provided them with no § 1B1.8 protection, but did not require them to cooperate with the prosecution; and one defendant provided detailed disclosures pursuant to a plea agreement that provided him with no § 1B1.8 protection. Although all defendants assert that the lack of § 1B1.8 protection in this district had a detrimental effect on their sentences, each defendant asserts that the appropriate downward departure premised on the lack of § 1B1.8 protection in his case should be measured by a slightly different yardstick. Since the issue presented here first arose in defendant Johnson’s case, the court will began its review of the situation of the defendants with the facts in Johnson’s case. a. Joseph John Johnson The government filed a criminal complaint against Johnson on January 26, 1999, charging Johnson and another of possessing methamphetamine with intent to distribute it. Johnson had an initial appearance on the charge that day. Johnson, with another, was subsequently indicted on Count 1 of a two-count indictment on February 19, 1999. That count of the indictment charged Johnson with possessing methamphetamine with intent to distribute it, or aiding and abetting the possession of methamphetamine with intent to distribute it, in violation of 21 U.S.C. § 841(a)(1). Johnson was arraigned on the charge against him in the indictment on February 24, 1999, and trial was set at that time for April 5, 1999. Johnson, however, filed a motion to suppress evidence on March 24,1999, which caused a continuance of his trial. The court denied Johnson’s motion to suppress evidence on May 28, 1999, upon this court’s acceptance of a report and recommendation of a magistrate judge. On June 18, 1999, without the benefit of a plea agreement, defendant Johnson pleaded guilty to the charge against him in Count I of the indictment. Johnson’s counsel had advised him not to enter into a plea agreement with the government that did not include “use immunity” protection within the scope of U.S.S.G. § 1B1.8. It was counsel’s view that Johnson’s increased sentencing exposure from information he might divulge about his criminal activity in a debriefing with the government would exceed any benefits he might receive from a downward departure based on a “substantial assistance” motion from the government. The parties stipulated, and the court therefore finds, that Johnson’s counsel sought a plea agreement with the government that contained some use immunity within the scope of U.S.S.G. § 1B1.8 protection, but counsel’s request for such a plea agreement was denied. Johnson is the only defendant now before the court who decided to plead guilty with no plea agreement whatsoever when his request for a plea agreement including § IB 1.8 protection was denied. At the initial sentencing hearing in Johnson’s case, held on July 23, 1999, the court determined Johnson’s base offense level to be 32, applied a two-level enhancement for obstruction of justice, pursuant to U.S.S.G. § 3C1.1, based on Johnson’s untruthful testimony at the suppression hearing, and declined to apply any reduction for acceptance of responsibility, pursuant to U.S.S.G. § 3E1.1, or the “safety valve,” U.S.S.G. § 5C1.2. Thus, the court found Johnson’s total offense level to be 34, with a criminal history category of 1. The resulting Sentencing Guideline range for Johnson’s sentence is 151 to 188 months. After these determinations, the sentencing hearing was continued to explore the availability of a downward departure based on the disparity in application of U.S.S.G. § 1B1.8 between this and federal districts. At Johnson’s second individual sentencing hearing, on November 20, 1999, the government presented the testimony of a cooperating witness. That witness testified to his experience collecting drug debts for Johnson and another individual associated with Johnson, and to the presence in the living room of Johnson’s residence of various weapons during drug transactions or while Johnson and others were conducting or preparing to conduct business related to drug trafficking. Although the cooperating witness testified that Johnson disliked violence, he also testified that Johnson was present as a participant while weapons were used by others to intimidate persons who owed money for drugs to the person from whom Johnson obtained his supply of methamphetamine. Johnson contends that the cooperating witness’s testimony is not credible and should therefore be disregarded. However, the court finds that the cooperating witness’s testimony is credible as to the presence of weapons in Johnson’s residence during events pertinent to the charges against him and Johnson’s participation in attempts to intimidate persons owing drug debts to his associate during which weapons were used or carried. Johnson argues that denial of § 1B1.8 protection not only created a risk that his sentence would be increased on the basis of any disclosures he might make, but also deprived him of the benefits of other provisions of the Sentencing Guidelines, including the “substantial assistance” and “safety valve” provisions. Apart from the present motion for downward departure, there are no other outstanding sentencing issues in Johnson’s case. b. John Joseph Ringis Unlike defendant Johnson, who was arrested following an investigation of his drug-trafficking activities, defendant Ring-is’s arrest on drug charges was a collateral result of a murder investigation. A murder suspect had been seen in the vicinity of Ringis’s residence, so police obtained a search warrant of Ringis’s residence to determine whether the suspect had been, or was still, in the residence. In the course of the execution of that first search warrant, investigators apparently noticed possible evidence of drugs in the house. Investigators obtained a second search warrant, the execution of which led to the discovery and seizure of drugs and weapons from Ringis’s residence and Ringis’s arrest on drug charges on July 27, 1998. On September 22, 1998, Ringis was indicted as the sole defendant on a four-count indictment. Count 1 of the indictment charged him with possession of methamphetamine with intent to distribute it in violation of 21 U.S.C. § 841(a)(1). Count 2 charged him with being a felon in possession of nine firearms and a few hundred rounds of ammunition in violation of 18 U.S.C. § 922(g)(1). Count 3 charged him with being an unlawful user of controlled substances in possession of the same nine firearms and ammunition described in Count 2 in violation of 18 U.S.C. § 922(g)(3). Count 4 of the indictment charged Ringis with possession of an unregistered sawed-off shotgun in violation of 26 U.S.C. § 5841. Ringis was arraigned on the charges against him on September 28, 1998, and his trial was initially set for December 7, 1998. Trial was continued several times, and Ringis eventually agreed to plead guilty. On September 16, 1999, Ringis pleaded guilty to Counts 1 and 3 of the indictment. Unlike defendant Johnson, who had no plea agreement whatsoever, defendant Ringis pleaded guilty to two of the four counts against him pursuant to a plea agreement with the United States Attorney’s Office for the Northern District of Iowa, albeit one that does not include a use immunity provision within the scope of U.S.S.G. § 1B1.8 protection. Instead, the plea agreement, dated April 21, 1999, but signed by Ringis on September 16, 1999, does not require Ringis to cooperate with the government and expressly stipulates that Ringis understands that, because he has not provided substantial assistance to the government, he will not be entitled to any motion by the government for a reduction in sentence pursuant to U.S.S.G. § 5K1.1 or 18 U.S.C. § 3553(e). Like defendant Johnson, Ringis was advised by counsel shortly after his arrest that, even if he decided to cooperate with the government, owing to counsel’s experience with prosecutors in this district, any information he disclosed concerning drugs or weapons would likely be used to establish or increase his sentencing guideline range. Because of this concern, and the lack of certainty of a “substantial assistance” motion, Ringis chose not to cooperate with the government. Ringis’s sentencing guideline range, as calculated in his presentence investigation report (PSIR), is 121 to 151 months. Ringis seeks a downward departure on the ground in question here to the mandatory minimum for the offenses to which he is pleading guilty, that is, to 60 months, on the basis of his “lost chance” to obtain a “substantial assistance” reduction and to “penalize” the government for withholding, as a matter of district practice, the only means by which Ringis could have reduced his sentence. Ringis concedes that, apart from the present motion for downward departure, there are no other disputed sentencing issues. c. Juan Carlos Valdivia-Cardona Defendant Valdivia-Cardona, like defendant Johnson, was arrested in the course of an investigation of his involvement in drug trafficking. The parties agree that defendant Valdivia-Cardona was arrested immediately after he received delivery through the mail of two packages containing controlled substances. One package contained cocaine and the other contained methamphetamine. Valdivia-Cardona maintains that, although he knew both packages would contain controlled substances, he did not know that the so-called “package # 2” contained methamphetamine. The government filed a criminal complaint against defendant Valdivia-Cardona on January 12, 1999, charging him of possession of methamphetamine with intent to distribute it and possession of cocaine with intent to distribute it. Valdivia-Cardona had an initial appearance on that charge the following day. Subsequently, on January 22, 1999, the government filed an indictment against Valdivia-Cardona charging him with five offenses. Count 1 of the indictment charged him with possession of methamphetamine with intent to distribute it in violation of 21 U.S.C. § 841(a)(1). Count 2 charged him with possession of cocaine with intent to distribute it in violation of 21 U.S.C. § 841(a)(1). Count 3 charged Valdivia-Cardona with use of a communication facility (the mail) to commit, cause to be committed, or to facilitate the offense set forth in Count 1 in violation of 21 U.S.C. § 843(b). Count 4 of the indictment charged Valdivia-Cardona with use of a communication facility (the mail) to commit, cause to be committed, or to facilitate the offense set forth in Count 2 in violation of 21 U.S.C. § 843(b). Finally, Count 5 of the indictment charged that Valdivia-Cardona was an alien previously excluded and removed from the United States who was thereafter found unlawfully in the United States in violation of 8 U.S.C. § 1326(a). At his arraignment on January 25, 1999, Valdivia-Cardona pleaded not guilty to all counts of the indictment. Trial was originally set for March 29.1999. The trial date was continued several times. Eventually, Valdivia-Cardona entered a plea of guilty, without § IB 1.8 protection, to Counts 2 and 5 of the indictment, the charge of possession of cocaine with intent to distribute it and the illegal reentry charge, respectively, pursuant to a plea agreement entered into on October 20.1999. The undersigned accepted Valdi-via-Cardona’s plea on November 16, 1999, upon the report and recommendation of a magistrate judge. As with defendant Johnson, the parties stipulated, and the court therefore finds, that Valdivia-Cardona’s counsel sought a plea agreement with the government that contained some use immunity within the scope of U.S.S.G. § 1B1.8 protection, but counsel’s request for such a plea agreement was denied. Like defendant Ringis, and unlike Johnson, defendant Valdivia-Cardona entered into a plea agreement notwithstanding the lack of § 1B1.8 protection. However, like the plea agreement accepted by defendant Ringis, defendant Valdivia-Cardona’s plea agreement does not require Valdivia-Cardona to cooperate with the government and expressly stipulates that Valdivia-Cardona understands that, because he has not provided substantial assistance to the government, he will not be entitled to any motion by the government for a reduction in sentence pursuant to U.S.S.G. § 5K1.1 or 18 U.S.C. § 3553(e). Valdivia-Cardona’s base offense level pursuant to the PSIR is 26, based on his possession of the cocaine and methamphetamine in the two packages delivered to him just before his arrest and some additional quantities of cocaine and methamphetamine found in his coat pocket. At his individual sentencing hearing on December 8, 1999, neither Valdivia-Car-dona nor the government contested this base offense level, although Valdivia-Car-dona registered his disagreement with the guidelines that result in this level, in view of his assertion that he lacked any knowledge that package # 2 contained methamphetamine rather than cocaine. The government conceded that this legal disagreement did not detract from Valdi-via-Cardona’s acceptance of responsibility, in light of his admission that he had received packages he knew contained controlled substances. Therefore, the government stated that it would not contest a reduction for acceptance of responsibility pursuant to U.S.S.G. § 3E1.1. The PSIR recommends a two-level reduction pursuant to U.S.S.G. § 3El.l(a) and an additional one-level reduction pursuant to U.S.S.G. § 3El.l(b) for acceptance of responsibility, which results in an adjusted offense level of 23. Valdivia-Cardona conceded that he is not entitled to a “safety valve” reduction pursuant to U.S.S.G. § 5C1.2. Therefore, the court finds that the total offense level for Val-divia-Cardona is 23, with a criminal history category of 1, resulting in a sentencing guideline range of 46 to 57 months, with sentences on the two offenses to run concurrently pursuant to U.S.S.G. § 5G1.2(c). At his individual sentencing hearing, Valdivia-Cardona contended that his inability to obtain a plea agreement including “use immunity” within the scope of U.S.S.G. § 1B1.8 protection deprived him of the opportunity to obtain a “role” reduction pursuant to U.S.S.G. § 3B1.2 or a “substantial assistance” reduction pursuant to U.S.S.G. § 5K1.1. Valdivia-Cardo-na’s counsel expressed her “confidence” that, had Valdivia-Cardona debriefed without § IB 1.8 protection, his base offense level would have risen, based on quantity of drugs, even had he disclosed sufficient information to obtain a role reduction. His counsel asserted further that the lack of § 1B1.8 protection prevented counsel from making a proffer to establish these contentions, as such a proffer in these circumstances would violate attorney-client confidences. Valdivia-Cardona seeks a downward departure for disparate denial of § 1B1.8 protection to reduce him to the offense level that would have resulted had the methamphetamine in package # 2 not been calculated against him, that is, to level 24, and possibly as low as level 22. The government contends that there is no sufficient basis in the record for the court to find that Valdivia-Cardona would have received a “role” or “substantial assistance” reduction had he cooperated with the government. d. John Herman Buckendahl Defendant Buckendahl’s situation is considerably different from that of the other defendants under discussion here. The Federal Defender’s Office was appointed to represent Buckendahl in a miscellaneous case on September 17, 1998. Subsequently, the government filed a two-count criminal information against Buckendahl on February 12, 1999. Count 1 of the information charged Buckendahl with conspiracy to distribute methamphetamine, to distribute methamphetamine within one thousand feet of a public school, and to distribute cocaine in violation of 21 U.S.C. § 846. Count 2 of the information charged Buckendahl with conspiracy to conduct money-laundering transactions in violation of 18 U.S.C. §§ 1956(a)(1)(A)® and 1956(a)(1)(B)®. Buckendahl filed a waiver of indictment on February 12, 1999. He was arraigned on February 19, 1999, at which time he entered a plea of guilty to both counts of the information pursuant to a plea agreement with the government. The plea agreement, dated February 5, 1999, and accepted by Buckendahl on February 10, 1999, includes a cooperation agreement and a “limited use immunity” provision. That provision prohibits the government from using information disclosed pursuant to the agreement for the purpose of bringing further drug-related charges under Title 21 or firearms-related charges under Title 18 of the United States Code. However, the “limited use immunity” provision expressly allows the use of the information disclosed, inter alia, by the court or probation office at any time, including use at the time of Bucken-dahl’s guilty plea and sentencing and to determine the length of his sentence. The . provision also states that information provided by the defendant in the course of any “proffer” may be relied upon and considered under the terms and conditions of the agreement. Thus, the “use immunity” provision of Buckendahl’s plea agreement provides none of the protection that U.S.S.G. § 1B1.8 might provide from use of information obtained from Buckendahl’s cooperation against him at sentencing. Considerably before Buckendahl entered into the federal plea agreement on February 10, 1999, he signed a “COOPERATION STATEMENT” on January 14, 1998, with investigating officers of a joint local, state, and federal drug enforcement task force. In that Cooperation Statement, Buckendahl acknowledged, inter alia, that the investigating officers had no authority to negotiate a plea agreement or other arrangement concerning charges against him; that information concerning the extent of his cooperation would be made available to prosecuting attorneys, who would make the decisions concerning the impact of his cooperation on any charges against him; and that any information he disclosed to the investigating officers could be “fully considered” in any future judicial proceeding. On October 15, 1998, Buckendahl also signed a proffer letter, dated September 15, 1998, pursuant to which he agreed that information pursuant to the “informal proffer” would not be used in trial, except “in the event your client is ever convicted of a criminal charge, by a court for use at the time of sentencing,” and other circumstances not relevant here. See Defense Exhibit 1 (Proffer Letter), p.2, ¶ b. Prior to the hearing for acceptance of Buckendahl’s plea, Buckendahl and the government stipulated that his base offense level is 40, that he would be subjected to a two-level enhancement for possession of a dangerous weapon under U.S.S.G. § 2Dl.l(b)(l), and that he would be subjected to a four-level upward adjustment for his role in the offense under U.S.S.G. § 3Bl.l(a). The proposed PSIR also includes a three-level reduction for acceptance of responsibility, resulting in a guideline level of 43, and criminal history of 1, for a guideline range of life imprisonment. The critical issue at Buckendahl’s individual sentencing hearing on November 22, 1999, was whether Buckendahl’s debriefing pursuant to his federal plea agreement had increased his sentencing level by one level for role in the offense (from three to four levels) and by two levels for dealing drugs within a school zone. Buckendahl contended that his own debriefing confirmed what the government had only suspected regarding his leadership role in the drug-trafficking conspiracy and his dealing of drugs within a school zone. The government contended, on the basis of statements of Buckendahl and others obtained during the joint task force investigation, that it knew everything necessary to establish Buckendahl’s offense level as a 46 (without an adjustment for acceptance of responsibility) before Buckendahl debriefed pursuant to the February 10, 1999, federal plea agreement. More specifically, the government asserts that eight statements of cooperators, including Buckendahl, that were admitted into evidence at the sentencing hearing demonstrate an independent basis for the government’s knowledge of the full extent of Buckendahl’s criminal activities upon which his sentencing level is based prior to his debriefing pursuant to his federal plea agreement. The government argues further that it already had in its possession organizational charts obtained in 1997 that demonstrate Buckendahl’s leadership role in the conspiracy for which he was charged. Buckendahl counters that the identity of the person the government asserts is Buckendahl in the organizational charts from 1997 is, at best, uncertain. Furthermore, Buckendahl argues that interviews on which the government relies were obtained after Buckendahl agreed to cooperate with task force investigators; thus, Buckendahl attempts to invoke protection like that afforded under U.S.S.G. § 1B1.8 from the time he signed the cooperation statement with investigators on January 14,1998. Furthermore, he argues that the statements of cooperators, like those entered into evidence here, are inevitably self-serving, and in certain respects, the statements entered into evidence here are so ludicrous as not to be credible. For example, Buckendahl points out that one cooperator’s statement that he helped Buckendahl package 120 pounds of methamphetamine on a single occasion is wildly out of proportion to the total amount of methamphetamine used to calculate his total offense level in the PSIR. This disparity between statements and “reality,” Buck-endahl suggests, demonstrates that the government, at best, only suspected the extent of his criminal activities until he confirmed them with his own statements pursuant to the February 10, 1999, federal plea agreement. The court will reserve for discussion in its legal analysis the question of whether Buckendahl has met his burden of establishing that his sentence was increased by cooperation statements that otherwise would have received “ § 1B1.8 protection,” as well as the related question of whether the government had an independent basis for determining Buckendahl’s present offense level prior to Buckendahl’s entry into his federal plea agreement on February 10, 1999, or prior to some other critical date from which § 1B1.8 protection should apply. II. LEGAL ANALYSIS Because the matter before the court in each of these cases is a motion for downward departure in sentencing, the court will begin its legal analysis with a discussion of the general requirements for departures from the Sentencing Guidelines. Next, the court will consider whether it has the authority to depart from the Sentencing Guidelines on the basis of a disparity in practice between districts on the availability of “use immunity” within the scope of U.S.S.G. § 1B1.8 protection. Finally, if the court finds that it has the authority to make such a departure in any defendant’s case, the court will consider whether to exercise its discretion to grant such a downward departure in that defendant’s case. A. Departure From The Sentencing Guidelines 1. Discretion The Eighth Circuit Court of Appeals recently explained that “the sentencing guidelines are designed to achieve uniformity in federal sentencing.” United States v. Decora, 177 F.3d 676, 678 (8th Cir.1999) (citing Mistretta v. United States, 488 U.S. 361, 367, 109 S.Ct. 647, 102 L.Ed.2d 714 (1989)). However, “they also preserve for the sentencing judge the discretion to depart.” Decora, 177 F.3d at 678 (citing Mistretta). Similarly, the Supreme Court has observed that “[a] district court’s decision to depart from the Guidelines ... will in most cases be due substantial deference, for it embodies the traditional exercise of discretion by a sentencing court.” Koon v. United States, 518 U.S. 81, 98, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996); Decora, 177 F.3d at 678 (quoting Koon). Thus, “[t]he decision as to whether and to what extent departure is warranted rests with the sentencing court on a case-specific basis.’ ” Decora, 177 F.3d at 677 (quoting U.S.S.G. § 5K2.0). Nonetheless, as most district judges at some time or another become painfully aware, the sentencing judge’s discretion to depart from the Guidelines is closely circumscribed: “The Sentencing Commission ‘forbids consideration of a few grounds for departure, discourages or encourages use of some specific grounds, and does not mention others.’ ” United States v. Diaz-Diaz, 135 F.3d 572, 580 (8th Cir.1998) (quoting United States v. Kapitzke, 130 F.3d 820, 822 (8th Cir.1997), which in turn cites Koon, 518 U.S. at 92-94, 116 S.Ct. 2035). Pursuant to 18 U.S.C. § 3553(b) and Guideline 5K2.0, “the sentencing court may [only] impose a sentence outside the range established by the applicable guidelines, if the court finds ‘that there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence different from that described.’” U.S.S.G. § 5K2.0 (quoting 18 U.S.C. § 3553(b)); Decora, 177 F.3d at 677 (“The sentencing court may depart downward if the court finds that there exists a mitigating circumstance of a kind or degree not adequately taken into consideration in formulating the guidelines.”) (citing U.S.S.G. § 5K2.0); United States v. Woods, 159 F.3d 1132, 1134 (8th Cir.1998) (“Under Koon v. United States, 518 U.S. 81, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996), a district court may depart from the Sentencing Guidelines if ‘the court finds that there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence different from that described.’ Id. at 92, 518 U.S. 81, 116 S.Ct. 2035, 135 L.Ed.2d 392 (quoting § 18 U.S.C. 3553(b)).”). In the words of the Supreme Court, the Sentencing Commission “did not adequately take into account cases that are, for one reason or another, ‘unusual.’ ” Koon, 518 U.S. at 93, 116 S.Ct. 2035 (citing U.S.S.G. ch. 1, pt. A, intro, comment. 4(b)). Therefore, the Court concluded that, under the Guidelines, departures may be considered only in “atypical” cases. Id.; accord U.S.S.G. § 5K2.0 (policy statement) & commentary (observing that departures will be “extremely rare”). 2. Authority v. discretion Although the Sentencing Guidelines preserve the court’s discretion to depart in cases that are sufficiently “atypical,” there is a difference between the court’s discretion to depart and its authority to do so. The question of the court’s authority to grant a departure is reviewed as a question of law de novo. United States v. Maxwell, 25 F.3d 1389, 1400 (8th Cir.), cert. denied, 513 U.S. 1031, 115 S.Ct. 610, 130 L.Ed.2d 519 (1994); accord United States v. Polanco, 53 F.3d 893, 897 (8th Cir.1995), cert. denied, 518 U.S. 1021, 116 S.Ct. 2555, 135 L.Ed.2d 1073 (1996). In contrast, the Eighth Circuit Court of Appeals has made clear that where a court understands its authority to depart from the sentence indicated by the guidelines on the basis asserted, but exercises its discretion not to depart on the facts of the case, the denial of a departure is, in most circumstances, unreviewable. See, e.g., United States v. Jones, 145 F.3d 959, 965 (8th Cir.) (“ ‘Failure to depart downward is reviewable only if the district court did not realize that it had the discretion to consider a downward departure.’ ”) (quoting United States v. Knight, 58 F.3d 393, 398 (8th Cir.1995) (internal citation omitted), cert. denied, 516 U.S. 1099, 116 S.Ct. 827, 133 L.Ed.2d 770 (1996)), cert. denied, — U.S. -, 119 S.Ct. 457, 142 L.Ed.2d 410 (1998); United States v. Saelee, 123 F.3d 1024, 1026 (8th Cir.1997) (where the district court correctly understood its discretionary authority to depart rested upon a determination that circumstances of the case make it exceptional and atypical, such that it is outside the heartland of cases, its decision not to exercise such authority is unreviewable); United States v. Hernandez-Reyes, 114 F.3d 800, 802 (8th Cir.1997) (when the district court correctly understands its authority to depart on a particular basis from the applicable guideline range, but makes the discretionary decision not to do so, that decision is unreviewable on appeal absent an unconstitutional motive); United States v. Knight, 96 F.3d 307, 311 (8th Cir.1996) (same), cert. denied, 520 U.S. 1180, 117 S.Ct. 1458, 137 L.Ed.2d 562 (1997). More specifically, the authority to depart depends upon whether the circumstances, as a general principle, make the case exceptional and atypical enough to take it outside the heartland, and that question is reviewed de novo as a question of law. See Saelee, 123 F.3d at 1026 (“[T]he district court correctly understood that its discretionary authority to depart rested upon a determination that the circumstances of this case make it exceptional and atypical, such that it is outside of the heartland of cases. Because the district court understood its authority to depart downward, but declined to do so in the circumstances presented, its decision not to exercise that authority is unreviewable.”); Polanco, 53 F.3d at 897 (“Whether the circumstances relied upon by the sentencing court to depart are sufficiently unusual to justify departure is a question of law which we review de novo.”); Maxwell, 25 F.3d at 1400 (“[wjhether the circumstance upon which the district court relies to depart is of a kind or degree that may appropriately be relied upon to justify departure is a question of law [the appellate courts] review de novo.”) (emphasis added). Although authority to depart is reviewed as a question of law de novo, where authority exists, the court’s discretionary determination of whether or not to depart, based on the facts of a particular defendant’s case, is unreviewable. See Decora, 177 F.3d at 677 (“‘The decision as to whether and to what extent departure is warranted rests with the sentencing court on a case-specific basis.’ ”) (quoting U.S.S.G. § 5K2.0). The Eighth Circuit Court of Appeals distinguished between discretion and authority in United States v. Nichols, 151 F.3d 850 (8th Cir.1998). In Nichols, the appellate court rejected the defendant’s argument that the sentencing court did not understand it had the authority to grant a downward departure on the basis of minimal or minor participation in the offense, observing as follows: There can be no doubt that the judge was fully aware of his authority to give Nichols an adjustment for minimal or minor participation if he thought it was warranted. That he felt he had no basis, as he said, to depart (a term of art under the Guidelines) is distinct from a belief that he lacked authority to adjust the base offense level for Nichols’s role in the conspiracy under [U.S.S.G.] § 3B1.2. Clearly he thought the minimum guidelines range sentence of thirty months was excessive, but his expression of that feeling in no'way demonstrates that he believed he was without authority to make a downward adjustment in Nichols’s base offense level for a mitigating role in the conspiracy. The judge’s comments reflect no error of any kind. Nichols, 151 F.3d at 855 (emphasis added). Similarly, in United States v. Eastman, 149 F.3d 802 (8th Cir.1998), where the defendant argued that the district court had abused its discretion by not granting him a downward departure based on his “advanced age and poor health,” the appellate court rejected the defendant’s argument, for the following reason: The district court acknowledged its authority to depart but concluded that the facts did not justify a downward departure. The court’s discretionary refusal to grant a downward departure is unre-viewable on appeal. Eastman, 149 F.3d at 804-05 (emphasis added). In short, a court has no discretion to depart until it has authority to do so; but where the court has the authority as a matter of law, its decision to depart or not to depart is a matter of discretion. Therefore, this court must first decide, as a question of law, whether it has the authority to grant the downward departures requested, by deciding whether, as a general principle, a disparity between districts in the availability of use immunity within the scope of § 1B1.8 protection, as a result of routine, discretionary practices of prosecutors in each district, is of a kind or degree that may appropriately be relied upon to justify departure. See, e.g., Maxwell, 25 F.3d at 1400. If the court finds that it does indeed have such authority, it must examine the facts in the individual defendants’ cases to decide, as a matter of discretion, whether those facts justify a downward departure. See, e.g., Eastman, 149 F.3d at 804-05. 3. Analytical process The Supreme Court explained in Koon v. United States, 518 U.S. 81, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996), the process the district court must follow before making a departure from the Guidelines: The Commission’s treatment of departure factors led then-Chief Judge Breyer to explain that a sentencing court considering a departure should ask the following questions: “1) What features of this case, potentially, take it outside the Guidelines’ ‘heartland’ and make of it a special, or unusual, ease? “2) Has the Commission forbidden departures based on those features? “3) If not, has the Commission encouraged departures based on those features? “4) If not, has the Commission discouraged departures based on those features? United States v. Rivera, 994 F.2d 942, 949 (C.A.1 1993). We agree with this summary. If the special factor is a forbidden factor, the sentencing court cannot use it as a basis for departure. If the special factor is an encouraged factor, the court is authorized to depart if the applicable Guideline does not already take it into account. If the special factor is a discouraged factor, or an encouraged factor already taken into account by the applicable Guideline, the court should depart only if the factor is present to an exceptional degree or in some other way makes the case different from the ordinary case where the factor is present. Cf. ibid. If a factor is unmentioned in the Guidelines, the court must, after considering the “structure and theory of both relevant individual guidelines and the Guidelines taken as a whole,” ibid., decide whether it is sufficient to take the ease out of the Guideline’s heartland. The court must bear in mind the Commission’s expectation that departures based on grounds not mentioned in the Guidelines will be “highly infrequent.” 1995 U.S.S.G. ch. 1, pt. A, p. 6. Koon, 518 U.S. at 95-96, 116 S.Ct. 2035; Diaz-Diaz, 135 F.3d at 580 (requiring the same analysis and observing that “‘[t]he court must bear in mind the Commission’s expectation that departures based on grounds not mentioned in the Guidelines will be highly infrequent.’ ”) (quoting Koon, 518 U.S. at 96, 116 S.Ct. 2035); and compare Woods, 159 F.3d at 1134 (outlining a similar analysis). Thus, the degree to which the Guidelines forbid, encourage, discourage, or fail to mention consideration of a particular factor determines the manner in which the court must determine whether a departure is permitted in the particular case. See id. (explaining the proper consideration when a factor is discouraged, encouraged, or unmentioned); see also Woods, 159 F.3d at 1134 (same); United States v. Hildebrand, 152 F.3d 756, 767 (8th Cir.) (“Because age is a discouraged factor, departure is permissible ‘only if the factor is present to an exceptional degree or in some other way makes the case different from the ordinary case where the factor is present.’ ”) (quoting Koon, 518 U.S. at 96, 116 S.Ct. 2035), cert. denied sub nom. Webb v. United States, — U.S. -, 119 S.Ct. 575, 142 L.Ed.2d 479 (1998); United States v. Morken, 133 F.3d 628, 629 (8th Cir.1998) (if departure is sought on the basis of a discouraged factor, “the district court’s decision to depart [is] proper only if [the defendant’s conduct] w[as] exceptional or ‘in some other way ... different from the ordinary case.’ ”) (quoting Koon, 518 U.S. at 96, 116 S.Ct. 2035); United States v. Wong, 127 F.3d 725, 728 (8th Cir.1997) (“If a factor is unmentioned by the Sentencing Guidelines, the court may use it only if it determines, after taking into consideration the structure and theory of relevant Guidelines and the Sentencing Guidelines as a whole, that the factor is sufficient to ‘take the case out of the Guideline’s heartland.’ ”) (quoting Koon, 518 U.S. at 95-96, 116 S.Ct. 2035). Furthermore, it is not enough that a factor was not taken into consideration by the Commission; the factor must “also be one for which a sentence outside the guidelines ‘should result.’ ” United States v. Maxwell, 25 F.3d 1389, 1400-01 (8th Cir.), cert. denied, 513 U.S. 1031, 115 S.Ct. 610, 130 L.Ed.2d 519 (1994). Finally, the Eighth Circuit Court of Appeals has warned that “[a] district court should endeavor to be extremely clear in articulating the factors upon which it bases a departure from the Guidelines.” United States v. Merrival, 176 F.3d 1079, 1081 (8th Cir.1999). B. Authority To Depart The court now turns to the question of its authority to depart from the Sentencing Guidelines on the basis asserted, disparity between districts in the availability of use immunity” within the scope of U.S.S.G. § 1B1.8 protection. That question is answered by applying the analysis described above, as outlined in Koon, 518 U.S. at 95-96,116 S.Ct. 2035. 1. A feature that potentially takes the case “outside the ‘heartland’ ” As noted above, the first step in the determination of whether a downward — or, for that matter, an upward— departure is warranted is to ask, “What features of this case, potentially, take it outside the Guidelines’ ‘heartland’ and make of it a special, or unusual, case?” Koon, 518 U.S. at 95, 116 S.Ct. 2035. It appears from both Koon and U.S.S.G. § 5K2.0 that the “potential” exists if “certain aspects of the case [are] unusual enough.” Koon, 518 U.S. at 98, 116 S.Ct. 2035; U.S.S.G. § 5K2.0; see also United States v. Allery, 175 F.3d 610, 613 (8th Cir.1999) (“It is apparent to us that the highly unusual factual circumstances of this case were such that it was not an abuse of discretion to hold that the case lay outside the heartland of those cases for which the guideline applicable here was intended.”); United States v. O’Kane, 155 F.3d 969, 975 (8th Cir.1998) (“To justify departure, a ‘case must be found unusual enough for it to fall outside the heartland of cases in the Guideline.’ ”) (quoting Koon, 518 U.S. at 98, 116 S.Ct. 2035); United States v. Saelee, 123 F.3d 1024, 1026 (8th Cir.1997) (where the district court correctly understood its discretionary authority to depart rested upon a determination that circumstances of the case make it “exceptional” and “atypical,” such that it is outside the heartland of cases, its decision not to exercise such authority is unreviewable). The defendants assert that disparate employment of use immunity, as provided in U.S.S.G. § 1B1.8, in plea bargaining among federal districts is unusual enough to be a feature that potentially takes this case “outside of the Guidelines’ ‘heartland.’ ” The defendants rely primarily on the decision of the Ninth Circuit Court of Appeals in United States v. Banuelos-Rodriguez, 173 F.3d 741 (9th Cir.1999), in support of their position. However, on November 8, 1999, shortly before the consolidated hearing in these cases, the government filed another supplement to the record advising the court that the panel decision of the Ninth Circuit Court of Appeals in Banuelos-Rodriguez had been withdrawn pending rehearing en banc. See United States v. Banuelos-Rodriguez, 1999 WL 1016272 (9th Cir. Nov.5, 1999). This court, however, need not rely exclusively, as the defendants do, on the decision of the Ninth Circuit Court of Appeals in Banuelos-Rodriguez in support of the proposition that disparities in plea bargaining between adjacent federal districts is a feature that potentially takes a case out of the “heartland.” Instead, the court finds that a decision from our own Circuit Court of Appeals, United States v. Jones, 160 F.3d 473 (8th Cir.1998), recognized the potential for disparities in plea bargaining to take a case out of the “heartland.” In Jones, the Eighth Circuit Court of Appeals was presented with the question of the district court’s authority to grant a downward departure where the government uses its discretion in plea bargaining to secure substantially reduced sentences for principals in a drug conspiracy in exchange for their testimony against lesser members of the conspiracy. Jones,. 160 F.3d at 483. The court held that sentencing disparities among co-defendants arising from the exercise of such prosecutorial discretion in plea bargaining could provide the district court with the authority to depart from the Sentencing Guidelines. Id. (Heaney, J., concurring in part and writing the majority opinion in pertinent part). Specifically, the court held that, “to the extent that the government’s behavior directly results in prejudice to a defendant, which is significant enough to take the case out of the heartland of the Sentencing Guidelines, district courts have the discretion to grant an appropriate downward departure.” Id. The appellate court instructed that, “if the district court on remand determines that any of the appellants were directly prejudiced by the government’s conduct significantly enough to take the case out of the heartland of the Sentencing Guidelines, it may exercise its discretion in determining whether to grant an appropriate downward departure.” Id. at 484. In other words, in the circumstances identified in Jones, the court has the authority to grant a downward departure, and may then exercise its discretion to grant or deny such a departure. Although the court in Jones was considering disparities among co-defendants resulting from the exercise of prosecutorial discretion in plea bargaining, this court finds that Jones also supports the conclusion that district-to-district disparities resulting from prosecutorial discretion in plea bargaining can potentially take a case out of the “heartland” of the Sentencing Guidelines. Id.; see also Koon, 518 U.S. at 95, 116 S.Ct. 2035 (asking first, “What features of this case, potentially, take it outside the Guidelines’ ‘heartland’ and make of it a special, or unusual, case?”). Whether that potential is realized depends, under Jones, on whether the government’s behavior directly results in sufficient prejudice to a defendant, that is, prejudice to a defendant that is significant enough to take the case out of the heartland of the Sentencing Guidelines. Id. Furthermore, the court agrees with the defendants that disparate employment of use immunity within the scope of U.S.S.G. § 1B1.8 protection in plea bargaining among federal districts is unusual enough to be a feature that potentially takes this case “outside of the Guidelines’ ‘heartland,’ ” at least where the Jones requirement of sufficient prejudice to the defendant is present. Although it is not unusual for a particular defendant to be given or denied use immunity, in the discretion of the prosecutor, thus making U.S.S.G. § 1B1.8 protection either operative or inoperative in a particular case, it is potentially unusual enough to take the case out of the Guidelines’ “heartland” that the routine practice in one district is to deny use immunity, while the practice in an adjacent district — and indeed the vast majority of federal districts — is to provide such immunity routinely. Again, “the sentencing guidelines are designed to achieve uniformity in federal sentencing.” Decora, 177 F.3d at 678 (citing Mistretta, 488 U.S. at 367, 109 S.Ct. 647). A disparity in practice that makes a provision of the Guidelines inoperative in one district and operative in an adjacent district (indeed, in most districts) potentially takes the case out of the “heartland” of uniformity the Guidelines were designed to create and in which they ordinarily function. Therefore, the court will turn to the next step in the analysis. 2. Treatment of the feature under the Guidelines That next step in the analysis requires the court to consider whether the feature or factor at issue is one on which a departure is forbidden, discouraged, encouraged, or simply not mentioned in the Guidelines. Koon, 518 U.S. at 95-96, 116 S.Ct. 2035. The defendants again assert that a panel of the Ninth Circuit Court of Appeals held in Banuelos-Rodriguez that disparity in sentencing among federal districts arising from plea-bargaining policies of U.S. Attorneys is simply not a factor mentioned in the Sentencing Guidelines. See Banuelos-Rodriguez, 173 F.3d at 743. The government argues that use immunity is adequately considered in U.S.S.G. § 1B1.8, such that a departure on the basis of the discretionary denial of use immunity is forbidden. a. Does U.S.S.G. § 1B1.8 consider the feature? This part of the court’s analysis begins with the provision of the Sentencing Guidelines around which the controversy here revolves, U.S.S.G. § 1B1.8. Section 1B1.8 of the Sentencing Guidelines has the following to say about use for sentencing purposes of evidence immunized pursuant to a plea agreement: § IB 1.8. Use of Certain Information (1) Where a defendant agrees to cooperate with the government by providing information concerning unlawful activities of others, and as part of that cooperation agreement the government agrees that self-incriminating information provided pursuant to the agreement will not be used against the defendant, then such information shall not be used in determining the applicable guideline range, except to the extent provided in the agreement. (b) The provisions of subse