source: Caselaw Access Project

author: Justice Thomas Justice Souter, Justice Stevens, Justice Breyer,

license: Public Domain

text:
    MELENDEZ v. UNITED STATES
    No. 95-5661.
    Argued February 27, 1996
    Decided June 17, 1996

      Thomas, J., delivered the opinion of the Court, in which Rehnquist, C. J., and Scalia, Kennedy, Souter, and Ginsburg, JJ., joined, and in which O’Connor and Breyer, JJ., joined as to Parts I and II. Souter, J., filed a concurring opinion, post, p. 131. Stevens, J., filed an opinion concurring in the judgment, post, p. 132. Breyer, J., filed an opinion concurring in part and dissenting in part, in which O’Connor, J., joined, post, p. 132.

      Patrick A. Mullin argued the cause for petitioner. With him on the briefs were David Zlotnick and Peter Goldberger.

      Irving L. Gornstein argued the cause for the United States. With him on the brief were Solicitor General Days, Acting Assistant Attorney General Keeney, and Deputy Solicitor General Dreeben.

        Alan I. Horowitz, James R. Lovelace, and Barbara E. Bergman filed a brief for the National Association of Criminal Defense Lawyers as amicus curiae urging reversal.

        Chester M. Keller filed a brief for the Association of Criminal Defense Lawyers in New Jersey as amicus curiae.

   Justice Thomas

delivered the opinion of the Court.

The issue here is whether a Government motion attesting to the defendant’s substantial assistance in a criminal investigation and requesting that the district court depart below the minimum of the applicable sentencing range under the Sentencing Guidelines also permits the district court to depart below any statutory minimum sentence. We hold that it does not.

I

Petitioner and several others entered into an agreement to buy cocaine from confidential informants of the United States Customs Service. As a result, petitioner was charged with conspiring to distribute and to possess with intent to distribute more than five kilograms of cocaine, see §406, 84 Stat. 1265, as amended, 21 U. S. C. §846, a crime that carries a statutory minimum sentence of 10 years’ imprisonment, see § 841(b)(1)(A). Plea negotiations ensued, and petitioner ultimately signed a cooperating plea agreement. The agreement provided, in pertinent part, that in return for petitioner’s cooperation with the Government’s investigation and his guilty plea, the Government would “move the sentencing court, pursuant to Section 5K1.1 of the Sentencing Guidelines, to depart from the otherwise applicable guideline range.” App. 9. The agreement noted that the offense to which petitioner would plead guilty “carries a statutory mandatory minimum penalty of 10 years’ imprisonment.” Id., at 6. The agreement did not require the Government to authorize the District Court to impose a sentence below the statutory minimum, nor did it specifically state that the Government would oppose departure below the statutory minimum.

Petitioner pleaded guilty to the charged conspiracy. The probation officer determined that the Guideline sentencing range applicable to petitioner’s crime was 135 to 168 months’ imprisonment. In a letter to the court, the Government described the assistance rendered by petitioner and moved the court to impose “a sentence lower than what the [c]ourt ha[d] determined to be the otherwise applicable [sic] under the sentencing guidelines.” Id., at 13-14. The letter specifically noted that “[t]his motion is made pursuant to Section 5K1.1.” Id., at 13. The Government did not request a sentence below the statutory minimum, although, again, it did not state that the Government opposed such a departure. The District Court granted the Government’s motion and departed downward from the sentencing range set by the Guidelines. However, because the Government had not also moved the District Court to depart below the statutory minimum pursuant to 18 U. S. C. § 3553(e), the court ruled that it had no authority to so depart; it thus imposed the 10-year minimum sentence required by statute.

On appeal, petitioner contended that the District Court had erred in concluding that it had no authority to depart below the statutory minimum. A § 5K1.1 motion, he argued, not only allows the court to depart downward from the sentencing level set by the Guidelines but also permits the court to depart below a lower statutory minimum. See United States Sentencing Commission, Guidelines Manual §5K1.1, p. s. (Nov. 1995) (USSG). A divided panel of the Court of Appeals for the Third Circuit rejected that argument and affirmed the 10-year sentence. 55 F. 3d 130 (1995). A petition for rehearing was denied, with six judges dissenting.

As we noted in Wade v. United States, 504 U. S. 181, 185 (1992), the Courts of Appeals disagree as to whether a Government motion attesting to the defendant’s substantial assistance and requesting that the district court depart below the minimum of the applicable sentencing range under the Guidelines also permits the district court to depart below any statutory minimum.

We granted certiorari to resolve the conflict. 516 U. S. 963 (1995). We now hold that such a motion does not authorize a departure below a lower statutory minimum.

II

The question presented involves two subsections of federal statutes and a policy statement of the Guidelines. Title 18 U. S. C. § 3553(e) provides:

“Limited authority to impose a sentence below a statutory minimum. — Upon motion of the Government, the court shall have the authority to impose a sentence below a level established by statute as minimum sentence so as to reflect a defendant’s substantial assistance in the investigation or prosecution of another person who has committed an offense. Such 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.”

Title 28 U. S. C. § 994(n), in turn, states:

“The Commission shall assure that the guidelines reflect the general appropriateness of imposing a lower sentence than would otherwise be imposed, including a sentence that is lower than that established by statute as a minimum sentence, to take into account a defendant’s substantial assistance in the investigation or prosecution of another person who has committed an offense.”

Finally, the text of § 5K1.1 of the Guidelines provides:

“Substantial Assistance to Authorities (Policy Statement)
“Upon motion of the government stating that the defendant has provided substantial assistance in the investigation or prosecution of another person who has committed an offense, the court may depart from the guidelines.
“(a) The appropriate reduction shall be determined by the court for reasons stated that may include, but are not limited to, consideration of the following: [List of five factors for the court’s consideration, including] the government’s evaluation of the assistance rendered.”

Petitioner argues that §5K1.1 creates what he calls a “unitary” motion system, in which a motion attesting to the substantial assistance of the defendant and requesting a departure below the Guidelines range also permits a district court to depart below the statutory minimum. The Government views § 5K1.1 as establishing a binary motion system, which permits the Government to authorize a departure below the Guidelines range while withholding from the court the authority to depart below a lower statutory minimum. The parties argue, naturally, that their respective interpretations of the system actually adopted by the Sentencing Commission were permissible ones under §3553(e).and §994(n).

We believe that § 3553(e) requires a Government motion requesting or authorizing the district court to “impose a sentence below a level established by statute as minimum sentence” before the court may impose such a sentence. Petitioner and his amici repeatedly characterize the motion required by § 3553(e) as a “motion that substantial assistance has occurred,” Brief for Petitioner 12, a “motion acknowledging the defendant’s ‘substantial assistance,’ ” id., at 8, and the like. But the term “motion” generally means “[a]n application made to a court or judge for purpose of obtaining a rule or order directing some act to be done in favor of the applicant.” Black’s Law Dictionary 1013 (6th ed. 1990). Papers simply “acknowledging” substantial assistance are not sufficient if they do not indicate desire for, or consent to, a sentence below the statutory minimum.

Of course, the Government did more than simply “acknowledge” substantial assistance here: It moved the court to impose a sentence below the Guideline range. But we agree with the Government that nothing in § 3553(e) suggests that a district court has power to impose a sentence below the statutory minimum to reflect a defendant’s cooperation when the Government has not authorized such a sentence, but has instead moved for a departure only from the applicable Guidelines range. Nor does anything in § 3553(e) or § 994(n) suggest that the Commission itself may dispense with § 3553(e)’s motion requirement or, alternatively, “deem” a motion requesting or authorizing different action — such as a departure below the Guidelines minimum — to be a motion authorizing the district court to depart below the statutory minimum.

Moreover, we do not read § 5K1.1 as attempting to exercise this nonexistent authority. Section 5K1.1 says: “Upon motion of the government stating that the defendant has provided substantial assistance . . . the court may depart from the guidelines,” while its Application Note 1 says: “Under circumstances set forth in 18 U. S. C. § 3553(e) and 28 U. S. C. § 994(n). .. substantial assistance .. . may justify a sentence below a statutorily required minimum sentence,” §5K1.1, comment., n. 1. One of the circumstances set forth in § 3553(e) is, as we have explained previously, that the Government has authorized the court to impose a sentence below the statutory minimum.

Petitioner and his amici argue that § 3553(e) requires a sentence below the statutory minimum to be imposed in “accordance” with the Guidelines; that § 994(n) specifically directs the Commission to draft a provision covering substantial assistance cases, including cases in which a sentence below a statutory minimum is warranted; and that if §5K1.1 is not read as creating a unitary motion system, then the Commission has improperly failed to meet its obligation, because no other provision of the Guidelines implements § 3553(e) and § 994(n). They also argue' (1) that the reference to § 3553(e) in §5Kl.Ts Application Note 1 indicates that § 5K1.1 is a “conduit” established by the Commission for “implementation” of § 3553(e); (2) that Application Note 2’s use of the broad term “sentencing reduction,” rather than “departure from the guidelines range,” supports petitioner’s view that §5K1.1 authorizes departures below a statutory minimum; (3) that Application Note 3 makes sense only on the assumption that the district court retains “full discretionary power” over the extent of the sentencing reduction (i. e., the authority to choose any sentence once the Government makes any motion confirming the defendant’s substantial assistance); (4) that the reference to §5K1.1 alone (rather than to § 3553(e)) in USSG §2Dl.l’s Application Note 7 further supports petitioner’s claim that § 5K1.1 is a conduit for implementation of § 3553(e); and (5) that if the factors described in §5Kl.l(a) limiting the district court’s discretion do not apply to sentences imposed after the Government moves to depart below the statutory minimum, then the district court’s discretion will be wholly unlimited in those circumstances.

In the Government’s view, § 3553(e) already gives the district court authority to depart below the statutory minimum on motion to do so by the prosecutor. The Government urges us to read the last sentence of § 3553(e), and the inclusion of the phrase “including a sentence that is lower than that established by statute as a minimum sentence” in § 994(n), as merely requiring the Commission to constrain the district court’s discretion in choosing a sentence after the Government moves to depart below the statutory minimum. The Government contends that the first paragraph of § 5K1.1 does not authorize departures below the statutory minimum, but that § 5Kl.l(a) does apply to sentences imposed after the Government moves to depart below the statutory minimum (as well as to sentences imposed after the Government moves to depart below the Guidelines range); §5Kl.l(a) thus implements the requirements of § 3553(e) and §994(n) that relate to sentences below the statutory minimum, by requiring the district court to consider the factors listed in §§5Kl.l(a)(])-(5) in determining the appropriate extent of a departure below the statutory minimum. According to the Government, the difficulties and gaps referred to by petitioner vanish once §5Kl.l(a) is so construed.

We agree with the Government that the relevant parts of the statutes merely charge the Commission with constraining the district court’s discretion in choosing a specific sentence after the Government moves for a departure below the statutory minimum. Congress did not charge the Commission with “implementing” §3553(e)’s Government motion requirement, beyond adopting provisions constraining the district court’s discretion regarding the particular sentence selected.

Although the various relevant Guidelines provisions invoked by the parties could certainly be clearer, we also believe that the Government’s interpretation of the current provisions is the better one. Section 5Kl.l(a) may guide the district court when it selects a sentence below the statutory minimum, as well as when it selects a sentence below the Guidelines range. The Commission has not, however, improperly attempted to dispense with or modify the requirement for a departure below the statutory minimum spelled out in § 3553(e) — that of a Government motion requesting or authorizing a departure below the statutory minimum.

The Government has made no such motion here. Hence, the District Court correctly concluded that it lacked the authority to sentence petitioner to less than 10 years’ imprisonment.

Ill

What is at stake in the long run is whether the Government can make a motion authorizing the district court to depart below the Guidelines range but withholding from the district court the power to depart below the statutory minimum. Although the Government contends correctly that the Commission does not have authority to “deem” a Government motion that does not authorize a departure below the statutory minimum to be one that does authorize such a departure, the Government apparently reads § 994(n) to permit the Commission to construct a unitary motion system by adjusting the requirements for a departure below the Guidelines minimum — that is, by providing that the district cou,rt may depart below the Guidelines range only when the Government is willing to authorize the court to depart below the statutory minimum, if the court finds that to be appropriate. See Tr. of Oral Arg. 26-31.

We need not decide whether the Commission could create this second type of unitary motion system, for two reasons. First, even if the Commission had done so, that would not help petitioner, since the Government has not authorized a departure below the statutory minimum here. Second, we agree with the Government that the Commission has not adopted this type of unitary motion system. Neither the text of §5K1.1 nor its commentary expressly limits the authority of the court to depart below the Guidelines minimum to situations in which the Government has moved to depart below the statutory minimum. The text of §5K1.1 says: “Upon motion of the government stating that the defendant has provided substantial assistance . . . , the court may depart from the guidelines.” We do not read this sentence to say: “Upon motion of the government stating that the defendant has provided substantial assistance ... and authorizing the court to depart below the statutory minimum, if any, the court may depart from the guidelines.” Rather, we read it as permitting the district court to depart below the Guidelines range when the Government states that the defendant has provided substantial assistance and requests or authorizes the district court to depart below the Guidelines range. As we have noted, supra, at 127-130, the Application Notes to §5K1.1 and §2D1.1 do not compel any other reading.

The judgment is affirmed.

It is so ordered.

Justice Souter,

concurring.

I agree with the conclusion that 18 U. S. C. § 3553(e) requires a motion by the Government asking the district court to impose a sentence below the statutory minimum, but I part company with the Court on the characterization of the policy statement numbered §5K1.1, United States Sentencing Commission, Guidelines Manual §5K1.1, p. s. (Nov. 1995) (USSG). The text of this policy statement deals with departures from the Guidelines; the best reading of each sentence is that its referent is a Guideline departure, and that neither directly applies to reductions below mandatory mínimums. The Application Notes (which are “the legal equivalent of a policy statement,” USSG § 1B1.7) are where the Sentencing Commission has dealt with sentences below statutory míni-mums. In my view, the Sentencing Commission has discharged its responsibility under 28 U. S. C. § 994(n) by its inclusion of the Application Notes, which effectively tell district courts that the policy statement applies as well to motions for reductions below mandatory mínimums. Thus, my disagreement is over the suggestion that the two sentences of §5K1.1 can be treated separately. I would simply say that the Application Notes indicate that §5K1.1 applies to motions under § 3553(e), and leave it at that.

Justice Stevens,

concurring in the judgment.

Petitioner has persuaded me that the Sentencing Commission intended §5K1.1 to create a unitary motion system under which any request for a departure below the Guideline range based on substantial assistance would also authorize a departure below the statutory minimum. Such a system would be eminently reasonable, but, for two reasons, I am convinced that Congress did not intend to authorize it. First, I agree with the Court that the text of § 3553(e) does not authorize the court to impose a sentence below the statutory minimum unless the Government has made a motion requesting that relief. Second, notwithstanding my serious doubts concerning the wisdom of a congressional decision to impose statutory minimum sentences higher than those considered appropriate by the Commission, the very fact that Congress has done so indicates that it intended to confer the authority to dispense with the statutory minima on the prosecutor rather than the Commission.

Thus, I concur in the judgment because I agree with the Court’s interpretation of § 3553(e).

Justice Breyer,

with whom Justice O’Connor joins, concurring in part and dissenting in part.

I join Parts I and II of the Court’s opinion, for, like the Court, I believe the Commission does not have the power to modify Congress’ statutes. I disagree with Part III, however, because the Commission does have the power to write its own Guidelines and, in my view, the Commission has in fact exercised that power to create what the Court calls a “unitary motion system.”

To understand that system, one must keep in mind two facts. First, many “substantial assistance” departures involve departures only from Guideline sentences, not from statutory mandatory minimum sentences. When a defendant seeks a “substantial assistance” departure from the minimum Guideline sentence for robbery, fraud, money laundering, tax evasion, or most other offenses, the defendant need not worry about a statutorily required minimum sentence, for either no such minimum sentence applies, or that sentence is so far below the minimum Guideline sentence that there is no practical likelihood of a departure drastic enough to make it relevant. The Guidelines govern departures from these Guideline sentences, and they permit judges to depart downward for “substantial assistance” only if the Government makes a “motion . . . stating that the defendant has provided substantial assistancé in the investigation or prosecution of another person who has committed an offense.” United States Sentencing Commission, Guidelines Manual § 5K1.1, p. s. (Nov. 1995) (USSG). I call the policy statement that sets forth this rule the “Substantial Assistance Guideline.”

Second, some criminal convictions implicate not only the Guidelines, but also the special statutes (applicable particularly to drug and weapon offenses) that set “mandatory minimum” sentences. See United States Sentencing Commission, Mandatory Minimum Penalties in the Federal Criminal Justice System, App. A, pp. A1-A8 (Aug. 1991) (Mandatory Minimum Penalties). The law does not normally permit a departure below such mandatory statutory minimums. But cf. 18 U. S. C. § 3553(f) (limitation on applicability of statutory minimums in certain cases); USSG § 5C1.2 (same). The law does permit such a departure, however, for one special reason, namely, “substantial assistance,” but only if the Government makes a “motion ... so as to reflect a defendant’s substantial assistance in the investigation or prosecution of another person who has committed an offense.” 18 U. S. C. § 3553(e). I shall call the statute that states this rule the “Substantial Assistance Statute.”

With these two basic facts in mind, one might ask what the Commission means by the term “substantial assistance” in its Substantial Assistance Guideline. In particular, do those words in that Guideline mean the same thing that those same words mean in the Substantial Assistance Statute? Or does the Commission intend those words in its Guideline to create a tougher, or perhaps a more lenient, standard where departures from Guideline mínimums (rather than departures from statutory mínimums) are at issue?

The answer to this interpretive question, in my view, is that the Commission means the term “substantial assistance” in its Substantial Assistance Guideline to create the same standard that the Substantial Assistance Statute creates using the same words. As so interpreted, the Guideline authorizes a sentencing judge to depart downward from a Guideline sentence for substantial assistance only if the Government files the same kind of motion that the Government would file to obtain a departure from a statutory minimum sentence, were such a sentence at issue.

My reasons for believing that the Commission intended to tie its Substantial Assistance Guideline to the Substantial Assistance Statute (thereby recognizing one kind of “substantial assistance,” not two) are the following: First, as I have said, the language the Commission used to write its Substantial Assistance Guideline is virtually identical to the language that appears in the Substantial Assistance Statute. Compare USSG § 5K1.1, p. s., with 18 U. S. C. § 3553(e). Second, the Commission nowhere suggests that the key words “substantial assistance” mean something different in the two places (the Guideline and the Statute) where they appear, and I cannot imagine any reason why the Commission would have wanted to create different standards through the use of identical words, thereby creating additional administrative complexity and risking unnecessary confusion. Third, the Commission’s commentary refers to statutory and guideline departures indiscriminately. USSG §2D1.1, comment., n. 7 (citing Substantial Assistance Guideline for proposition that statutory minimum may be “waived”); see also Mandatory Minimum Penalties, supra, at 59 (discussing unitary “substantial assistance motions”).

The Court’s reason for reaching the contrary conclusion is that the Commission did not specify that courts could not depart below a minimum Guideline sentence without a Government motion for departure below any applicable statutory minimum. That is, the Substantial Assistance Guideline does not say: “Upon motion of the government stating that the defendant has provided substantial assistance . . . and authorizing the court to depart below the statutory minimum, if any, the court may depart from the guidelines.” Ante, at 131 (emphasis added; internal quotation marks omitted). But it is not surprising that the Commission neglected to add these words of crystal clarity to the Substantial Assistance Guideline, since that Guideline governs many cases that have nothing to do with mandatory minimum sentences. It makes sense, instead, for the Commission to have noted the interplay of “substantial assistance” and statutory míni-mums in its commentary to the Substantial Assistance Guideline, see USSG §5K1.1, p. s., comment., n. 1, and in its section on drug offenses, for which statutory mínimums are relatively common, see id., §2D1.1, comment., n. 7.

I recognize that the Court, through its interpretation of the Guideline, avoids having to decide “whether the Commission could create this . . . unitary motion system.” Ante, at 130. But the legal question it avoids is not a difficult one. Congress delegated to the Commission broad authority to determine when sentencing courts may reward substantial assistance with a reduced sentence. See 28 U. S. C. § 994(n). The Commission’s exercise of delegated authority is normally lawful as long as it is reasonable. See, e. g., United States v. Shabazz, 933 F. 2d 1029, 1035 (CADC) (Thomas, J.) (citing Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, 842-845 (1984)), cert. denied sub nom. McNeil v. United States, 502 U. S. 964 (1991). And a unitary system seems perfectly reasonable. Indeed, the Federal Rules of Criminal Procedure recognize an identical “unitary” system for post judgment substantial assistance motions. See Fed. Rule Crim. Proc. 35(b) (“[O]n motion of the Government made within one year after the imposition of the sentence,” court may reduce sentence “to reflect a defendant’s subsequent, substantial assistance”; this may include reduction “to a level below that established by statute as a minimum sentence”). Thus in my view, the Commission had the power to create a “unitary motion system,” and is free to maintain such a system, or to change it, in light of evolving criminal justice policies.

In this case, the lower courts accepted the Government’s “departure” motion as sufficient to justify a departure below the 135-month Guideline minimum applicable to petitioner’s crime, but not sufficient to justify a departure below the applicable 10-year statutory minimum. On a “unitary” view, this disposition could not be correct. Either the motion was sufficient to warrant a departure below the statutory minimum, or it was insufficient to warrant a departure below the Guideline minimum. I would remand this case to the lower courts for further consideration of this case-specific issue.

For these reasons, while agreeing with much of what the Court has written, I dissent from its disposition.

      Compare 55 F. 3d 130 (CA3 1995) and United States v. Rodriguez-Morales, 958 F. 2d 1441 (CA8), cert. denied, 506 U. S. 940 (1992), with United States v. Ah-Kai, 951 F. 2d 490 (CA2 1991), United States v. Beckett, 996 F. 2d 70 (CA5 1993), United States v. Wills, 35 F. 3d 1192 (CA7 1994), and United States v. Keene, 933 F. 2d 711 (CA9 1991).

       Petitioner also argues for the first time in his reply brief that the plea agreement into which he entered was at least ambiguous with respect to whether it required the Government to move the District Court to depart below the statutory minimum — and thus that the agreement itself permitted the court to depart below the 10-year minimum. See Reply Brief for Petitioner 7-8. We do not view this issue as included within the question upon which we granted certiorari, see Pet. for Cert. 3 (“Did the sentencing court have the discretion to depart below the applicable statutory minimum once the United States moved for departure under USSG §5K1, without the requirement of a second government departure application under 18 U. S. C. 3553(e)?”), and petitioner appears to concede that it is not, see Tr. of Oral Arg. 15. We therefore decline to address the argument.

       Although it is plain that under § 994(n), the Commission was at least authorized to create a system in which no Government motion of any kind need be filed before the district court may depart below the Guidelines minimum, neither party argues that the Commission has created such a system.

       See also Random House Dictionary of the English Language 1254 (2d ed. 1987) (defining “motion” in the legal sense as “an application made to a court or judge for an order, ruling, or the like”); Wade v. United States, 504 U. S. 181, 187 (1992) (“[Substantial assistance] is a necessary condition for [a departure, but] it is not a sufficient one. The Government’s decision not to move may have been based not on a failure to acknowledge or appreciate [the defendant’s] help, but simply on its rational assessment of the cost and benefit that would flow from moving”).

       We do not mean to imply, of course, that specific language (such as that quoted in text) or, on the other hand, an express reference to § 3553(e) is necessarily required before a court may depart below the statutory minimum. Cf. Brief for Petitioner 5-6, 18, 32, 34 (characterizing the opposing argument in this fashion). But the Government must in some way indicate its desire or consent that the court depart below the statutory minimum before the court may do so.

       Application Note 2 provides in relevant part: “The sentencing reduction for assistance to authorities shall be considered independently of any reduction for acceptance of responsibility.” USSG § 5K1.1, comment., n. 2.

       Application Note 3 provides: “Substantial weight should be given to the government’s evaluation of the extent of the defendant’s assistance, particularly where the extent and value of the assistance are difficult to ascertain.” USSG §5K1.1, comment., n. 3.

       Application Note 7 provides in pertinent part: “Where a mandatory (statutory) minimum sentence applies, this mandatory minimum sentence may be ‘waived’ and a lower sentence imposed (including a sentence below the applicable guideline range), as provided in 28 U. S. C. § 994(n), by reason of a defendant’s ‘substantial assistance in the investigation or prosecution of another person who has committed an offense.’ See §5K1.1 (Substantial Assistance to Authorities).” USSG §2D1.1, comment., n. 7. Section 2D1.1 is a Guideline addressed to a variety of drug offenses.

         Notably, § 3553(e) states that the “sentence” shall be imposed in accordance with the Guidelines and policy statements, not that the “departure” shall occur, or shall be authorized, in accordance with the Guidelines and policy statements.

       Section §5Kl.l(a) may apply of its own force to sentences below the statutory minimum, see ibid, (providing that the district court shall determine “[tjhe appropriate reduction” by applying a nonexhaustive list of factors), and both the reference to § 3553(e) in §5Kl.l’s Application Note 1 and the reference to §5K1.1 in §2Dl.l’s Application Note 7 may reflect that fact. Or perhaps the phrase “[t]he appropriate reduction” in §5Kl.l(a) encompasses only departures below the Guidelines range, but the Application Notes are meant to suggest that the court should also consider the § 5Kl.l(a) factors in the analogous circumstance of a departure below the statutory minimum.


author: Per Curiam. Justice Stevens,

text:
    LEAVITT, GOVERNOR OF UTAH, et al. v. JANE L. et al.
    No. 95-1242.
    Decided June 17, 1996
   Per Curiam.

The State of Utah seeks review of a ruling by the Court of Appeals for the Tenth Circuit which declared invalid a provision of Utah law regulating abortions “[a]fter 20 weeks gestational age.” Utah Code Ann. §76-7-302(3) (1995). The court made that declaration, not on the ground that the provision violates federal law, but rather on the ground that the provision was not severable from another provision of the same statute, purporting to regulate abortions up to 20 weeks’ gestational age, which had been struck down as unconstitutional. The court’s severability ruling was based on its view that the Utah Legislature would not have wanted to regulate the later-term abortions unless it could regulate the earlier-term abortions as well. Whatever the validity of such speculation as a general matter, in the present case it is flatly contradicted by a provision in the very part of the Utah Code at issue, explicitly stating that each statutory provision was to be regarded as having been enacted independently of the others. Because we regard the Court of Appeals’ determination as to the Utah Legislature’s intent to be irreconcilable with that body’s own statement on the subject, we grant the petition for certiorari as to this aspect of the judgment of the Court of Appeals, and summarily reverse.

Utah law, as amended by legislation enacted in 1991, establishes two regimes of 'regulation for abortion, based on the term of the pregnancy. With respect to pregnancies 20 weeks old or less, § 302(2) permits abortions only under five enumerated circumstances, Utah Code Ann. §76-7-302(2) (1995). With respect to pregnancies of more than 20 weeks, §302(3) permits abortions under only three of the five circumstances specified in §302(2). § 76-7-302(3). In the present suit for declaratory and injunctive relief, the District Court for the District of Utah held § 302(2) to be unconstitutional, but § 302(3) to be both constitutional and severable— i. e., enforceable despite the invalidation of the other provision. Jane L. v. Bangerter, 809 F. Supp. 865, 870 (1992). Upon appeal by the plaintiffs with regard to the latter provision, the Court of Appeals for the Tenth Circuit held that it could not be enforced, regardless of its constitutionality, because it was not severable from the invalidated portion of the law. Jane L. v. Bangerter, 61 F. 3d 1493, 1499 (1995). The State argues that that conclusion is simply unsustainable in light of the Utah Legislature’s express indication to the contrary, and we agree.

Severability is of course a matter of state law. In Utah, as the Court of Appeals acknowledged, the matter “is determined first and foremost by answering the following question: Would the legislature have passed the statute without the unconstitutional section?” Id., at 1497 (citing Stewart v. Utah Public Service Comm’n, 885 P. 2d 759, 779 (Utah 1994)). A provision of the abortion part of the Utah Code, to which these two sections were added, answers that question. Section 317 provides:

“If any one or more provision, section, subsection, sentence, clause, phrase or word of this part or the application thereof to any person or circumstance is found to be unconstitutional, the same is hereby declared to be severable and the balance of this part shall remain effective notwithstanding such unconstitutionality. The legislature hereby declares that it would have passed this part, and each provision, section, subsection, sentence, clause, phrase or word thereof, irrespective of the fact that any one or more provision, section, subsection, sentence, clause, phrase, or word be declared unconstitutional.” Utah Code Ann. §76-7-317 (1995) (emphasis added).

In the face of this statement by the Utah Legislature of its own intent in enacting regulations of abortion, the Court of Appeals nonetheless concluded that §§302(2) and 302(3) were not severable because the Utah Legislature did not intend them to be so. The Court of Appeals' opinion not only did not regard the explicit language of §317 as determinative — it did not even use it as the point of departure for addressing the severability question. It understood Utah law as instructing courts to “subordinate severability clauses, which evince the legislature’s intent regarding the structure of the statute, to the legislature’s overarching substantive intentions.” 61 F. 3d, at 1499 (emphasis added). The court divined in the 1991 amendments a “substantive intent” to prohibit virtually all abortions, see id., at 1497-1498, and went on to conclude that since, in its view, severing § 302(2) from § 302(3) would frustrate this overarching purpose, both provisions had to stand or fall together, see id., at 1499. We believe that the Court of Appeals erred at both steps of this progression.

The dichotomy between “structural” and “substantive” intents is nowhere to be found in the Utah cases cited as authority by the Court of Appeals. Indeed, none of those cases even speaks in terms of “conflicts among legislative intentions,” id., at 1498. The cases do support the proposition that, “even where a savings clause exist[s], where the provisions of the statute are interrelated, it is not within the scope of th[e] court’s function to select the valid portions of the act and conjecture that they should stand independently of the portions which are invalid.” State v. Salt Lake City, 445 P. 2d 691, 696 (Utah 1968). See also Salt Lake City v. International Assn. of Firefighters, 563 P. 2d 786, 791 (Utah 1977); Carter v. Beaver County Service Area No. One, 399 P. 2d 440, 441 (Utah 1965). But those concerns are absent from this case, for two reasons. First, because there is no need to resort to “conjecture”: The legislature’s abortion laws include not merely the standard “saving” clause, but a provision that could not be clearer in its message that the legislature “would have passed [every aspect of the law] irrespective of the fact that any one or more provision ... be declared unconstitutional.” §76-7-317. And second, because the two sections at issue here are not “interrelated” in any relevant sense — i. e., in the sense of being so interdependent that the remainder of the statute cannot function effectively without the invalidated provision, or in the sense that the invalidated provision could be regarded as part of a legislative compromise, extracted in exchange for the inclusion of other provisions of the statute. Nothing like that appears here. The Court of Appeals described §302(3) as “modiftying]” §302(2), and concluded that, “[w]ith the nullification of the abortion ban in section 302(2), the statute was gutted, and section 302(3) was left purposeless without an abortion ban to modify.” 61 F. 34d, at 1498. But as examination of the provisions makes apparent, see n. 1, supra, §302(3) cannot possibly be said to “modify” §302(2) in the sense of being an adjunct to it, as an adjective “modifies” a noun. Rather, it can be said to “modify” § 302(2) only in the sense of altering its disposition — permitting, for post-20week abortions, some but not all of the justifications allowed (for earlier-term abortions) by § 302(2). It is impossible to see how this could lead to the conclusion that § 302(3) is left “purposeless” when §302(2) is declared inoperative. Of course §302(3) does incorporate by reference permissible justifications for abortion set forth in § 302(2), instead of repeating them verbatim, but this drafting device can hardly be thought to establish such “interdependence” that § 302(3) becomes “purposeless” when §302(2) is unenforceable. To the contrary, §302(3) sets out in straightforward and self-operative fashion the circumstances under which an abortion may be performed “[a]fter 20 weeks gestational age.”

But even if the Court of Appeals were correct in treating § 317 like an ordinary saving clause; even if it were right in believing that there existed the “interrelationship” between §§302(2) and 302(3) that would permit an ordinary saving clause to be disregarded; and even if it had not invented the notion of “structural-substantive” dichotomy; the reasoning by which it concluded that the “substantive” intent of the Utah Legislature was to forgo all regulation of abortion unless it could obtain total regulation is flawed. The court reasoned that, because the intent of the 1991 amendments was “to prohibit all abortions, regardless of when they occur during the pregnancy, except in the few specified circumstances,” 61 F. 3d, at 1497, and because §§ 302(2) and 302(3) “operated as a unified expression of [that] intent,” ibid., for the court to separate §302(2) from §302(3) based on the unconstitutionality of the former would “clearly undermin[e] the legislative purpose to ban most abortions,” id,., at 1498.

This mode of analysis, if carried out in every case, would operate to defeat every claim of severability. Every legislature that adopts, in a single enactment, provision A plus provision B intends (A+B); and that enactment, which reads (A+B), is invariably a “unified expression of that intent,” so that taking away A from (A+B), leaving only B, will invariably “clearly undermine the legislative purpose” to enact (A+B). But the fallacy in applying this reasoning to the sev-erability question is that it is not the severing that will take away A from (A+B) and thus foil the legislature’s intent; it is the invalidation of A (in this case, because of its unconstitutionality) which does so — an invalidation that occurs whether or not the two provisions are severed. The relevant question, in other words, is not whether the legislature would prefer (A+B) to B, because by reason of the invalidation of A that choice is no longer available. The relevant question is whether the legislature would prefer not to have B if it could not have A as well. Here, the Court of Appeals in effect said yes. It determined that a legislature bent on banning almost all abortions would prefer, if it could not have that desire, to ban no abortions at all rather than merely some. This notion is, at the very least, questionable when considered in isolation. But when it is put forward in the face of a statutory text that explicitly states the opposite, it is plainly error.

* * *

We have summarily set aside unsupportable judgments in cases involving only individual claims, see, e. g., Board of Ed. of Rogers v. McCluskey, 458 U. S. 966, 969-971 (1982); National Bank of North America v. Associates of Obstetrics & Female Surgery, Inc., 425 U. S. 460, 460-461 (1976). Much more is that appropriate when what is at issue is the total invalidation of a statewide law, see, e. g., Idaho Dept. of Employment v. Smith, 434 U. S. 100, 100-102 (1977). To be sure, we do not normally grant petitions for certiorari solely to review what purports to be an application of state law; but we have done so, see Steele v. General Mills, Inc., 329 U. S. 433, 438, 440-441 (1947); Wichita Royalty Co. v. City Nat. Bank of Wichita Falls, 306 U. S. 103, 107 (1939), and undoubtedly should do so where the alternative is allowing blatant federal-court nullification of state law. The dissent argues that “[t]he doctrine of judicial restraint” weighs against review, post, at 146, but it is an odd notion of judicial restraint that would compel us to cast a blind eye on overreaching by lower federal courts. The fact observed by the dissent, that the “underlying substantive issue in this case” is a controversial one, generating “a kind of ‘hydraulic pressure’ that motivates ad hoc decisionmaking,” ibid., provides a greater, not a lesser, justification for reversing state-law determinations that seem plainly wrong. In our view, these considerations combine to make this an “extraordinary cas[e]” worth our effort of summary review, post, at 147.

Finally, the dissent’s appeal to the supposed greater expertise of courts of appeals regarding state law is particularly weak (if not indeed counterindicative) where a Court of Appeals panel consisting of judges from Oklahoma, Colorado, and Kansas has reversed the District Court of Utah on a point of Utah law. If, as we have said, the courts of appeals owe no deference to district court adjudications of state law, see Salve Regina College v. Russell, 499 U. S. 225, 239-240 (1991), surely there is no basis for regarding panels of circuit judges as “better qualified” than we to pass on such questions, see post, at 146. Our general presumption that courts of appeals correctly decide questions of state law reflects a judgment as to the utility of reviewing them in most cases, see Salve Regina College, supra, at 235, n. 3, not a belief that the courts of appeals have some natural advantage in this domain, cf. Brockett v. Spokane Arcades, Inc., 472 U. S. 491, 500 (1985) (“[W]e surely have the authority to differ with the lower federal courts as to the meaning of a state statute”); Cole v. Richardson, 405 U. S. 676, 683-685 (1972). That general presumption is obviously inapplicable where the court of appeals’ state-law ruling is plainly wrong, a conclusion that the dissent does not even contest in this case.

The opinion of the Tenth Circuit in this case is not sustainable. Accordingly, we grant the petition as to the severability question, summarily reverse the judgment, and remand the case to the Court of Appeals for further proceedings.

It is so ordered.

Justice Stevens,

with whom Justice Souter, Justice Ginsburg, and Justice Breyer join, dissenting.

The severability issue discussed in the Court’s per curiam opinion is purely a question of Utah law. It is contrary to our settled practice to grant a petition for certiorari for the sole purpose of deciding a state-law question ruled upon by a federal court of appeals. The justifications for that practice are well established: The courts of appeals are more familiar with and thus better qualified than we to interpret the laws of the States within their Circuits; the decision of a federal court (even this Court) on a question of state law is not binding on state tribunals; and a decision of a state-law issue by a court of appeals, whether right or wrong, does not have the kind of national significance that is the typical predicate for the exercise of our certiorari jurisdiction.

The underlying substantive issue in this case generates what Justice Holmes once described as a kind of “hydraulic pressure” that motivates ad hoc decisionmaking. Northern Securities Co. v. United States, 193 U. S. 197, 401 (1904) (dissenting opinion). Even if the court of appeals has rendered an incorrect decision, that is no reason for us to jettison the traditional guides to our practice of certiorari review. The doctrine of judicial restraint counsels the opposite course.

The majority counters with a pair of cases that supposedly show the absence of a settled practice regarding review of state-law questions. One of those — Wichita Royalty Co. v. City Nat. Bank of Wichita Falls, 306 U. S. 103 (1939) — was a diversity case decided in the wake of Erie R. Co. v. Tompkins, 304 U. S. 64 (1938). Just four weeks before we handed down Erie, the Court of Appeals had disclaimed its obligation to follow a controlling decision by the Texas Supreme Court (indeed, one rendered in an earlier stage of the same proceedings) on a matter of Texas commercial law. 306 U. S., at 106. The Court of Appeals then, denied rehearing on the theory that the Texas court had changed its mind and now agreed with the former’s view of the law. Ibid. Our decision to hear that case, which resulted in our rejection of the lower court’s conclusion, was plainly motivated by a concern to give effect to Erie’s new mandate.

That leaves the single example of Steele v. General Mills, Inc., 329 U. S. 433 (1947), in which this Court granted cer-tiorari because the lower court’s judgment “undermine[d] the transportation policy of Texas.” Id., at 438. Decided nearly 50 years ago and without successor, Steele is the exception that proves the rule.

However irregular such grants were in the past, they are now virtually unheard of. Indeed, in 1980 we codified our already longstanding practice by eliminating as a consideration for deciding whether to review a case the fact that “a court of appeals has .. . decided an important state or territorial question in a way in conflict with applicable state or territorial law.” Compare this Court’s Rule 19(l)(b) (1970) with this Court’s Rule 17.1 (1980). That deletion — the only deletion of an entire category of cases — was intended to communicate our view that errors in the application of state law are not a sound reason for granting certiorari, except in the most extraordinary cases. Tellingly, the majority does not cite a single example during the past 16 years in which we have departed from this reemphasized practice. This case should not be the first.

Accordingly, I respectfully dissent from the decision to grant the petition.

       The two subsections state:

        “(2) An abortion may be performed in this state only under the following circumstances:
      “(a) in the professional judgment of the pregnant woman’s attending physician, the abortion is necessary to save the pregnant woman’s life;
      “(b) the pregnancy is the result of rape or rape of a child . . . that was reported to a law enforcement agency prior to the abortion;
      “(e) the pregnancy is the result of incest... and the incident was reported to a law enforcement agency prior to the abortion;

        “(d) in the professional judgment of the pregnant woman’s attending physician, to prevent grave damage to the pregnant woman’s medical health; or
      “(e) in the professional judgment of the pregnant woman’s attending physician, to prevent the birth of a child that would be born with grave defects.
      “(3) After 20 weeks gestational age, measured from the date of conception, an abortion may be performed only for those purposes and circumstances described in Subsections (2)(a), (d), and (e).” Utah Code Ann. §76-7-302 (1995).

       In none of the Utah eases relied upon by the Court of Appeals was there a legislative statement of this sort. In both Salt Lake City v. International Assn. of Firefighters, 563 P. 2d 786 (1977), and Carter v. Beaver County Service Area No. One, 399 P. 2d 440 (1965), the saving clauses at issue simply declared: “If any provision of this act, or the application of any provision to any person or circumstance, is held invalid, the remainder of this act shall not be affected thereby.” See 1975 Utah Laws, ch. 102, §10; 1961 Utah Laws, ch. 34, §3. And in State v. Salt Lake City, 445 P. 2d 691, 696 (1968), the court treated the saving clause in the municipal ordinance under review as no different from the one discussed in Carter, upon which the court relied.

       Compare International Assn. of Firefighters, supra, at 791 (“The [invalidated] provisions . .. are an integral part of the act. . . . The concept of binding arbitration is wholly interdependent with the other provisions of the act”); Carter, supra, at 441-442 (“[T]he separability clause ... is ineffective, because of the dependency of the remaining sections upon the provisions declared inoperative”) (emphases added).

       The Court of Appeals also adverted to Utah Code Ann. § 76-7-317.2 (1995), which it interpreted as “making an exception to the general sever-ability clause specifically for section 302.” Jane L. v. Bangerter, 61 F. 3d, at 1499. Section 317.2 does nothing of the sort. It provides, simply, that “[i]f Section 76-7-302 as amended by Senate Bill 23,1991 Annual General Session, is ever held to be unconstitutional by the United States Supreme Court, Section 76-7-302, as enacted by Chapter 33, Laws of Utah 1974, is reenacted and immediately effective.” This provision does not speak to severability, but to the consequence of invalidation, presumably total invalidation. (For if the invalidation of § 302(2) alone triggered § 317.2, then all of § 302 would be replaced by the pre-existing, 1974 version. But the Court of Appeals did not decree § 302(1) as inoperative, nor did respondents seek that result.) Respondents make no effort to defend the ruling below on the basis of § 317.2.

       The dissent says that our review in Wichita Royalty Co. “was plainly motivated by a concern to give effect to [the] new mandate” of Erie R. Co. v. Tompkins, 304 U. S. 64 (1938), that federal courts apply state substantive law in diversity eases. Post, at 147, It remains the case, however, that “the only question for our decision” was whether the Court of Appeals was correct in its interpretation of state law. 306 U. S., at 107 (emphasis added). As for Steele v. General Mills, Inc., 329 U. S. 433 (1947), there our review was prompted by concern that the judgment below “undermine[d] the transportation policy of Texas,” id., at 438. But unless we were wrong in Steele to regard this as “a question of such importance” as to justify review, ibid., the Tenth Circuit’s “undermin[ing] [of] the [abortion] policy of [Utah]” presents an issue equally worth our attention. If the dissent is correct that Steele was our last case of this sort, it indicates only that we have not since been faced with a federal court’s equivalently clear misinterpretation of a state law of equivalent significance.

      The majority finds deference to the Court of Appeals “counter-indicative” because it reversed the District Court for the District of Utah on a point of Utah law. Ante, at 145. But courts of appeals owe district courts no deference on state-law questions; they review such matters de novo. See Salve Regina College v. Russell, 499 U. S. 225, 235-240 (1991) (rejecting reliance on the “local expertise” of the District Court). The geography of the Circuit, see ante, at 145, is utterly irrelevant.


author: Per Curiam.

text:
    CALDERON, WARDEN v. MOORE
    No. 95-1612.
    Decided June 17, 1996
   Per Curiam.

Respondent Charles Edward Moore, Jr., was convicted of first-degree murder in a California state court, and sentenced to death. The District Court granted habeas relief, concluding that the state court had denied Moore his right to self-representation under Faretta v. California, 422 U. S. 806 (1975). The District Court thus vacated the judgment of conviction and ordered the warden, petitioner here, to “release Moore from custody after the expiration of 60 days unless, within 60 days hereof, the State of California grants Moore the right to a new trial.” App. A to Brief in Opposition A65.

The State filed a notice of appeal and sought a stay of the District Court’s order pending appeal, but its various stay applications were respectively denied by the District Court, the Ninth Circuit, 56 F. 3d 39 (1995), and by Justice O’Con-nor, in her capacity as Circuit Justice for the Ninth Circuit. The State accordingly set Moore for retrial, and simultaneously pursued its appeal of the District Court’s order on the merits to the Ninth Circuit. The Court of Appeals, observing that the “State of California has granted petitioner Charles Edward Moore, Jr., a new trial,” dismissed the State’s appeal as moot. App. A to Pet. for Cert.

It is true, of course, that mootness can arise at any stage of litigation, Steffel v. Thompson, 415 U. S. 452, 459, n. 10 (1974); that federal courts may not “give opinions upon moot questions or abstract propositions,” Mills v. Green, 159 U. S. 651, 653 (1895); and that an appeal should therefore be dismissed as moot when, by virtue of an intervening event, a court of appeals cannot grant “any effectual relief whatever” in favor of the appellant, ibid. The available remedy, however, does not need to be “fully satisfactory” to avoid mootness. Church of Scientology of Cal. v. United States, 506 U. S. 9, 13 (1992). To the contrary, even the availability of a “partial remedy” is “sufficient to prevent [a] case from being moot.” Ibid.

In this case, to say the least, a “partial remedy” necessary to avoid mootness will be available to the State of California (represented here by petitioner). While the administrative machinery necessary for a new trial has been set in motion, that trial has not yet even begun, let alone reached a point where the court could no longer award any relief in the State’s favor. Because a decision in the State’s favor would release it from the burden of the new trial itself, the Court of Appeals is not prevented from granting “any effectual relief whatever” in the State’s favor, Mills, supra, at 653, and the case is clearly not moot. We therefore grant respondent’s motion to proceed in forma pauperis, grant petition for a writ of certiorari, reverse the judgment of the Court of Appeals, and remand the case for further proceedings consistent with this opinion.

It is so ordered.