UNITED STATES COURT OF APPEALS for the Fifth Circuit

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No. 91-9513 _____________________________________

UNITED STATES OF AMERICA,

Plaintiff-Appellant,

VERSUS

TERRENCE L. SELLERS,

Defendant-Appellee.

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Appeal from the United States District Court for the Eastern District of Louisiana ______________________________________________________ (October 2, 1992)

Before REAVLEY, HIGGINBOTHAM, and DUHÉ, Circuit Judges.

DUHÉ, Circuit Judge:

Terrence Sellers pled guilty to drug offenses, and was

sentenced. On appeal, the government challenges Sellers' sentence,

alleging that it was an improper departure from statutory

provisions and the Sentencing Guidelines. Because of the recent

Supreme Court decision Wade v. United States, -- U.S. --,

(1992), we vacate Sellers' sentence and remand the case

for resentencing.

Background and Procedural History

Terrence Sellers was apprehended carrying two kilograms of

"crack" cocaine. He subsequently pled guilty to one count of

possession of cocaine base with intent to distribute. See

(a)(1) (1988). Sellers cooperated with the government by providing information concerning his cohorts in the drug trade,

but no indictments or arrests were made as a result of Sellers'

efforts.

At Sellers' sentencing hearing, the district court departed

downward from the Sentencing Guidelines. The court explained that

the departure was justified because (1) the Sentencing Guidelines

did not adequately consider the minimal nature of Sellers' past

offenses, (2) the Sentencing Guidelines did not adequately reflect

Seller's level of culpability, and (3) Sellers had substantially

cooperated with the government. The government objected to this

departure arguing that Sellers' criminal history did not merit a

downward departure and that it was improper to find that Sellers

rendered substantial assistance without the filing of a U.S.S.G. §

5K1.1 motion. See

(e) (Supp. 1992).1

Standard of Review

Our review is narrowly confined by statute. See

(f) (Supp. 1992). We must "uphold a sentence unless it is

imposed in violation of the law or as a result of an incorrect

application of the sentencing guidelines, or is a departure from

the guideline range and is unreasonable." United States v.

Buenrostro,

(5th Cir.), reh'g denied,

U.S.S.G. § 5K1.1 p.s. explains that: "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." This Sentencing Guideline provision tracks the statutory language of

(e) (Supp. 1992).

2 297 (5th Cir. 1989) (en banc), cert. denied,

(1990).

The Supreme Court's decision in Williams v. United States, --

U.S. --,

(1992), further guides our review.

Williams addressed "whether a reviewing court may affirm a sentence

in which a district court's departure from the guideline range is

based on both valid and invalid factors." 112 S. Ct. at 1118. If

an appellate court is unable to determine whether the same sentence

would have been imposed had the trial court not relied on the

improper factor(s), a remand is in order. Id. at 1120-21.

Discussion

The district court departed from the guideline range for

several reasons. First, the court held that the criminal history

enhancement provision of the Guidelines distorted the rather minor

nature of Sellers' past offenses. See R. vol. 3, at 6. This

departure is arguably within the sentencing court's discretion.

Both

(b) and U.S.S.G. § 5K2.0 permit a departure

where the trial 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 . . . ."

(b) (Supp.

1992); see also Williams v. United States, -- U.S. --,

(1992) ("The selection of the sentence from within the

guideline range, as well as the decision to depart from the range

in certain circumstances, are decisions that are left solely to the

sentencing court. U.S.S.G. § 5K2.0 p.s.").

3 Likewise, the court found that the sentence indicated by the

Guidelines did not adequately reflect Seller's culpability in the

instant drug trafficking operation. See R. Vol. 3, at 3. Cases

discussing departures based on culpability implicate U.S.S.G. §

3B1.2, which provides for an adjustment to the offense level upon

a finding of minimal participation. See e.g., United States v.

Hewin,

(5th Cir. 1989); Buenrostro,

.

The Third and Ninth Circuits have taken the view that a departure

for minimal participation may still be appropriate even when an

adjustment to the offense level is not warranted. See United

States v. Valdez-Gonzales,

(9th Cir. 1992);

United States v. Bierley,

(3d Cir. 1990). Such

a departure is again arguably within the district court's

discretion preserved by 18 U.S.C. 3553(b) and U.S.S.G. § 5K2.0.

The Valdez-Gonzalez court reached this conclusion, reasoning that

[I]n view of the limited application of the section 3B1.2 minimal participant adjustment, the Sentencing Commission had failed to consider adequately the role of the defendant in conduct surrounding the offense of conviction. The court thus permitted a downward departure analogous to the section 3B1.2 downward adjustment, but based upon defendant's role in events extending beyond the offense of conviction.

957 F.2d at 648 (citations omitted). We do not reach the question

of whether or not such a view is correct. The present decision

turns on the narrow issue of departures for substantial assistance.

The district court held that Sellers was entitled to a

downward departure because he provided the government with

substantial assistance. See R. vol. 3, at 9. Sellers was

4 sentenced before the Supreme Court's decision in Wade v. United

States, -- U.S. --,

(1992). Wade makes it clear

that absent a § 5K1.1 motion from the government, a downward

departure for substantial assistance is not proper. See Wade,

.2 Because we now have the benefit of Wade, we

conclude the downward departure in Sellers' sentence was based at

least in part on an invalid departure factor.

As stated earlier, we must uphold a sentence unless it is a

result of an incorrect application of the Guidelines. The "use of

an invalid departure ground is an incorrect application of the

Guidelines." Williams v. United States, -- U.S. --,

(1992). Once a determination has been made that a

district court departed from the Guidelines on an invalid basis, a

remand is appropriate unless the reviewing court concludes that the

district court would have imposed a similar sentence without the

invalid departure factor. See Williams,

.

Rather than engaging in such a speculative exercise, we remand the

case to the district court for resentencing.

Conclusion

A departure from the Sentencing Guidelines based on the

2 The Wade Court held that there may be occasions when a prosecutor's decision not to file a § 5K1.1 substantial assistance motion may be reviewed by the trial court. When the prosecution's refusal to request such a downward departure rests on unconstitutional foundations, e.g., a defendant's race or religion, then the trial court may properly depart for substantial assistance without the prerequisite § 5K1.1 motion. Wade,

- 44. Such is not the case here, however, and the government motion requirement is applicable.

5 defendant's substantial assistance to the government requires a

U.S.S.G. § 5K1.1 motion. Because the trial court relied on a

departure ground invalidated by Wade, we VACATE the sentence and

REMAND the case for resentencing.

VACATED and REMANDED.

6