En banc Eighth Circuit ruling on departure particulars

Among many sentencing ruling appearing on this opinion page, the Eighth Circuit today issued a lengthy en banc decision in US v. Burns, No. 04-2901 (8th Cir. Aug. 27, 2007) (available here).  Here is the lengthy summary of the decision:

Determination of the value of the assistance a cooperating defendant provides law enforcement in any given circumstance must be viewed in light of the entire defendant behavior associated with that circumstance, and requiring more qualitatively impressive substantial assistance to justify progressively larger departures furthers the goal of reducing unjustified sentencing disparities while recognizing that situations exist at the tapering edge of the assistance bell-curve that justify departures that substantially exceed the Sentencing Guideline’s range; here, the district court abused its discretion in granting defendant a 60% departure based on his substantial assistance, as the timeliness of his assistance and its truthfulness and completeness were not so exceptional as to merit the size of the departure; further, while the nature and extent of defendant’s assistance was not inconsiderable, to grant such a large departure on this basis would leave little room for more substantial and extensive assistance by other defendants; district court did not err in using 360 months as the starting point for any departure, as the government’s filing of a 5K1.1 motion did not waive the application of the mandatory life sentence which applied in the case.

Judge Bright, dissenting in part on the issue of the extent of the departure and concurring in part on the issue of the starting point, joined by Judge Bye.  Judge Bye, dissenting in part on the issue of the extent of the departure and concurring in part on the issue of the starting point, joined by Judge Bright.