United States v. Bing Wong, Also Known as Randy Shaw, Also Known as James Benson, Also Known as Mark Johnson Peter L. Moore & William Andre Mitchell, 127 F.3d 725 (8th Cir. 1997). · Go Syfert
United States v. Bing Wong, Also Known as Randy Shaw, Also Known as James Benson, Also Known as Mark Johnson Peter L. Moore & William Andre Mitchell, 127 F.3d 725 (8th Cir. 1997). Cases Citing This Book View Copy Cite
51 citation events (24 in the last 25 years) across 6 distinct courts.
Strongest positive: United States v. Ringis (iand, 1999-12-16)
Treatment trajectory · 1998 → 2026 · click a year to view as-of
1998 2012 2026
Top citers, strongest first. 31 distinct citers. How cited ↗
examined Cited as authority (verbatim quote) United States v. Ringis (3×) also: Cited as authority (rule)
N.D. Iowa · 1999 · signal: see, e.g. · quote attribution · 1 verbatim quote · confidence high
this court has held that 927 'disparity between sentences imposed on codefendants is not a proper basis for departure.
discussed Cited as authority (rule) United States v. Nolberto Naranjo, Jr.
8th Cir. · 2012 · confidence medium
Indeed, “ ‘some disparity will inevitably exist [between cases] because of the unique facts of each individual defendant’s case.’ ” Jones, 639 F.3d at 488 (quoting United States v. Wong, 127 F.3d 725, 728 (8th Cir.1997) (modification in Jones)).
discussed Cited as authority (rule) State v. Bell
Conn. · 2011 · confidence medium
The defendant has referred to no authority for the proposition that a sentencing court, in determining an appropriate sentence, ordinarily may consider the costs of incarceration as a factor, in addition to the traditional sentencing goals of retribution, rehabilitation and specific and general deterrence. 15 Rather, it *267 appears that, as a general matter, to the extent that the economic costs of incarceration are a factor in determining an appropriate sentence, they are to be considered not by the sentencing authority but by the legislature when it is enacting sentencing provisions. 16 See…
discussed Cited as authority (rule) United States v. Jones
8th Cir. · 2011 · confidence medium
But as this Court has recognized, while the Guidelines seek to promote uniformity in sentencing, “some disparity will inevitably exist [between cases] because of the unique facts of each individual defendant’s case.” United States v. Wong, 127 F.3d 725, 728 (8th Cir.1997).
discussed Cited as authority (rule) United States v. Jason Pepper
8th Cir. · 2009 · confidence medium
In the Sentencing Memorandum, the district court cited as support for its decision our prior opinions in United States v. Collins, No. 98-3765, 1999 WL 1143677 , at *1 (8th Cir. Dec. 2, 1999) (unpublished) (determining, “the economic costs of incarcerating [the defendant] is not a factor which the Court should have considered as a basis for departure”), and United States v. Wong, 127 F.3d 725, 728 (8th Cir. 1997) (explaining, “[t]he decision whether tax dollars should be used to pay for lengthy sentences is a congressional determination, not one to be made by federal courts[,]” and “…
discussed Cited as authority (rule) United States v. Pepper
8th Cir. · 2009 · confidence medium
In the Sentencing Memorandum, the district court cited as support for its decision our prior opinions in United States v. Collins, No. 98-3765, 1999 WL 1143677 , at *1 (8th Cir. Dec.2, 1999) (unpublished) (determining, “the economic costs of incarcerating [the defendant] is not a factor which the Court should have considered as a basis for departure”), and United States v. Wong, 127 F.3d 725, 728 (8th Cir.1997) (explaining, “[t]he decision whether tax dollars should be used to pay for lengthy sentences is a congressional determination, not one to be made by federal courts[,]” and “[t…
cited Cited as authority (rule) United States v. Buffy Bush
8th Cir. · 2003 · confidence medium
(Nov.2002) (superseded by Amendment of October 27, 2003); United States v. Wong, 127 F.3d 725, 727 (8th Cir.1997); United States v. Cox, 921 F.2d 772, 774 (8th Cir.1990).
cited Cited as authority (rule) United States v. Buffy Bush
8th Cir. · 2003 · confidence medium
(Nov. 2002) (superseded by Amendment of October 27, 2003); United States v. Wong, 127 F.3d 725, 727 (8th Cir. 1997); United States v. Cox, 921 F.2d 772, 774 (8th Cir. 1990).
discussed Cited as authority (rule) United States v. Maldonado-Montalvo
1st Cir. · 2003 · confidence medium
See United States v. Maldonado, 242 F.3d 1, 4-5 (1st Cir.2001) (noting that costs of incarceration normally are not grounds for downward departure); United States v. Wong, 127 F.3d 725, 728 (8th Cir.1997) (same).
discussed Cited as authority (rule) United States v. David Peterson
8th Cir. · 2003 · signal: cf. · confidence medium
Cf. United States v. Wong, 127 F.3d 725, 728 (8th Cir.1997) (whether length of sentence imposed by Guidelines was necessary to prevent future criminal activity was factor already taken into account by Guidelines, and thus district court’s belief that length of sentence was unnecessary could not justify departure from Guidelines range).
discussed Cited as authority (rule) United States v. Jose Carrasco, Also Known as Demetrio, United States of America v. Jose Gonzalez
8th Cir. · 2001 · confidence medium
In any event, we have “held that ‘[disparity between sentences imposed on codefendants is not a proper basis for departure.’ ” United States v. Wong, 127 F.3d 725, 728 (8th Cir.1997) (quoting United States v. Polan-co, 53 F.3d 893 , 897 (8th Cir.1995), cert. denied, 518 U.S. 1021 , 116 S.Ct. 2555 , 135 L.Ed.2d 1073 (1996)).
cited Cited as authority (rule) United States v. Maldonado
1st Cir. · 2001 · signal: cf. · confidence medium
Cf. United States v. Wong, 127 F.3d 725, 728 (8th Cir.1997).
discussed Cited as authority (rule) United States v. Sherry Lynn Collins
8th Cir. · 1999 · confidence medium
Departing without “any reason whatsoever” is an abuse of discretion, see United States v. Morken, 133 F.3d 628, 629 (8th Cir. 1998) (abuse of discretion where record revealed no valid basis for district court’s decision to depart downward), and “the public interest” (the phrase that the Court used at sentencing to refer to the economic costs of incarcerating Collins) is not a factor which the Court should have considered as a basis for departure, see United States v. Wong, 127 F.3d 725, 728 (8th Cir. 1997) (decision whether tax dollars should be spent on costs of incarceration is leg…
examined Cited as authority (rule) United States v. Andrew Jones, Also Known as Drew, United States of America v. Felton J. Sykes (4×) also: Cited "see"
8th Cir. · 1998 · confidence medium
Sykes' disparity in sentences argument is foreclosed by this Court's holding that "[d]isparity between sentences imposed on codefendants is not a proper basis for departure." 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); and United States v. Wong, 127 F.3d 725, 728 (8th Cir.1997).
discussed Cited as authority (rule) United States v. Andrew Jones (2×) also: Cited "see"
8th Cir. · 1998 · confidence medium
Jones’ disparity in sentences argument is foreclosed by this Court holding that “[d]isparity between sentences imposed on codefendants is not -6- a proper basis for departure.” United States v. Polanco, 53 F.3d 893, 897 (8th Cir. 1995), cert. denied, 518 U.S.1021 (1996); and United States v. Wong, 127 F.3d 725, 728 (8th Cir. 1997).
cited Cited "see" United States v. Park
2d Cir. · 2014 · signal: see · confidence high
See United States v. Wong, 127 F.3d 725, 728 (8th Cir.1997).
discussed Cited "see" United States v. Molina
8th Cir. · 2009 · signal: see · confidence high
See United States v. Wong, 127 F.3d 725, 728 (8th Cir.1997) (holding, pre-Booker, -Gall, and -Kimbrough, that “[t]he decision whether tax dollars should be used to pay for lengthy sentences is a congressional determination, not one to be made by federal courts”); United States v. Tapia-Romero, 523 F.3d 1125, 1126 (9th Cir.2008) (holding, post- Booker, -Gall, and -Kimbrough, that “Congress has not made the cost to society of a defendant’s imprisonment a factor [that] a sentencing judge should consider under [18 U.S.C.] § 3553(a) in determining the appropriate term of imprisonment under…
discussed Cited "see" United States v. Herbert Molina
8th Cir. · 2009 · signal: see · confidence high
See United States v. Wong, 127 F.3d 725, 728 (8th Cir. 1997) (holding, pre-Booker, -Gall, and -Kimbrough, that “[t]he decision whether tax dollars should be used to pay for lengthy sentences is a congressional determination, not one to be made by federal courts”); United States v. Tapia-Romero, 523 F.3d 1125, 1126 (9th Cir. 2008) (holding, post-Booker, -Gall, and -Kimbrough, that “Congress has not made the cost to society of a defendant’s imprisonment a factor [that] a sentencing judge should consider under [18 U.S.C.] § 3553(a) in determining the appropriate term of imprisonment unde…
discussed Cited "see" United States v. Patrick McMorrow
8th Cir. · 2006 · signal: see · confidence high
See United States v. Wong, 127 F.3d 725, 727-28 (8th Cir. 1997) (stating Guidelines allow court to depart from prescribed sentencing range in exceptional circumstances; finding departure from Guidelines range not warranted where court gave no explanation as to why factor for departure took case out of “heartland”).
discussed Cited "see" United States of America, Appellee/cross-Appellant v. Patrick Timothy McMorrow Appellant/cross-Appellee
8th Cir. · 2006 · signal: see · confidence high
See United States v. Wong, 127 F.3d 725, 727-28 (8th Cir.1997) (stating Guidelines allow court to depart from prescribed sentencing range in exceptional circumstances; finding departure from Guidelines range not warranted where *1120 court gave no explanation as to why factor for departure took case out of “heartland”).
discussed Cited "see" United States v. Michael Douglas
8th Cir. · 2003 · signal: see · confidence high
See United States v. Wong, 127 F.3d 725, 728 (8th Cir.1997) (disparity between sentences imposed on codefendants is not proper basis for departure; some disparity will inevitably exist because of unique facts of each individual defendant’s case); United States v. Granados, 962 F.2d 767, 774 (8th Cir.1992) (defendant cannot rely upon codefendant’s sentence as “a yardstick” for his own; sentence is not disproportionate just because it exceeds codefendant’s sentence).
discussed Cited "see" United States v. John Buckendahl (2×)
8th Cir. · 2001 · signal: see · confidence high
See United State v. Wong, 127 F.3d 725, 728 (8th Cir.1997); United States v. Polanco, 53 F.3d 893, 897 (8th Cir.1995); United States v. Foote, 898 F.2d 659, 666 (8th Cir.1990).
discussed Cited "see" United States v. John Herman Buckendahl, United States of America v. John Joseph Ringis, United States of America v. Joseph John Johnson, United States of America v. Juan Carlos Valdivia-Cardona, Also Known as Steven Paul Garcia, Also Known as Stevan Garcia, United States of America v. Jeffrey Alan Clark
8th Cir. · 2001 · signal: see · confidence high
See United State v. Wong, 127 F.3d 725, 728 (8th Cir. 1997); United States v. Polanco, 53 F.3d 893, 897 (8th Cir. 1995); United States v. Foote, 898 F.2d 659, 666 (8th Cir. 1990). 14 Other courts have reached similar results, finding no authority to depart based on sentencing disparities that resulted from interdistrict differences in plea-bargaining policies, United States v. Armenta-Castro, 227 F.3d 1255, 1257 (10th Cir. 2000); United States v. Banuelos-Rodriguez, 215 F.3d 969, 978 (9th Cir. 2000) (en banc); United States v. Bonnet-Grullon, 212 F.3d 692 , 709-10 (2d Cir.), cert. denied, 121 …
discussed Cited "see, e.g." United States v. Pedro Dyck, Also Known as Pedro Dyck-Peters.
8th Cir. · 2003 · signal: see also · confidence medium
The district court’s mere “dissatisfaction with the available sentencing range or a preference for a different sentence than that authorized by the guidelines is not an appropriate basis for a sentence outside the applicable guideline range.” USSG § 5K2.0, p.s., comment.; see also United States v. Wong, 127 F.3d 725, 727 (8th Cir.1997).
discussed Cited "see, e.g." United States v. Pedro Dyck
8th Cir. · 2003 · signal: see also · confidence medium
The district court's mere "dissatisfaction with the available sentencing range or a preference for a different sentence than that authorized by the guidelines is not an appropriate basis for a sentence outside the applicable guideline range." USSG § 5K2.0, p.s., comment.; see also United States v. Wong, 127 F.3d 725, 727 (8th Cir. 1997).
discussed Cited "see, e.g." United States v. Arthur Schuyler Ross, United States of America v. Arthur Schuyler Ross, Also Known as John Ross
8th Cir. · 2000 · signal: see also · confidence medium
We find that the district court abused its discretion in departing from the guideline money laundering sentence by departing, at least in part, due to what it viewed as an “unfortunate” disparity between and the “particular problem” with the Guidelines’ treatment of wire fraud and of money laundering, concluding that “the original guidelines amount is — or level, is outside of the heartland of the cases considered by the Sentencing Commission.” The Guidelines make clear that “dissatisfaction with the available sentencing range or a preference for a different sentence than tha…
discussed Cited "see, e.g." United States v. Arthur Ross
8th Cir. · 2000 · signal: see also · confidence medium
We find that the district court abused its discretion in departing from the guideline money laundering sentence by departing, at least in part, due to what it viewed as an “unfortunate” disparity between and the “particular problem” with the Guidelines’ treatment of wire fraud and of money laundering, concluding that “the original guidelines amount is – or level, is outside of the heartland of the cases considered by the Sentencing Commission.” The Guidelines make clear that “dissatisfaction with the available sentencing range or a preference for a different sentence than tha…
discussed Cited "see, e.g." United States v. Harold J. Jones
8th Cir. · 1998 · signal: see, e.g. · confidence medium
See, e.g., United States v. Wong, 127 F.3d 725, 728 (8th Cir. 1997); United States v. Polanco, 53 F.3d 893, 897 (8th Cir. 1995); United States v. Torres, 921 F.2d 196, 197 (8th Cir. 1990) (per curiam).
discussed Cited "see, e.g." United States v. Harold J. Jones, United States of America v. James O. Cashaw, United States of America v. John L. Palmer (2×)
8th Cir. · 1998 · signal: see, e.g. · confidence medium
See, e.g., United States v. Wong, 127 F.3d 725, 728 (8th Cir.1997); United States v. Polanco, 53 F.3d 893, 897 (8th Cir.1995); United States v. Torres, 921 F.2d 196, 197 (8th Cir.1990) (per curiam).
discussed Cited "see, e.g." United States v. Willis
11th Cir. · 1998 · signal: see also · confidence low
See United States v. Chotas, 968 F.2d 1193 (11th Cir.1992); see also United States v. Wong, 127 F.3d 725 (8th Cir.1997) (disparity in sentences imposed on eodefend-ants not a proper basis for departure); United States v. Perkins, 108 F.3d 512 (4th Cir.1997) (same); United States v. Ives, 984 F.2d 649 (5th Cir.1993) (same); United States v. Gallegos, 129 F.3d 1140 (10th Cir.1997) (departure based on sentencing disparity among codefendants not justified when sentences dissimilar due to plea bargain).
discussed Cited "see, e.g." United States v. Willis
11th Cir. · 1998 · signal: see also · confidence low
See United States v. Chotas, 968 F.2d 1193 (11th Cir. 1992); see also United States v. Wong, 127 F.3d 725 (8th Cir. 1997) (disparity in sentences imposed on codefendants not a proper basis for departure); United States v. Perkins, 108 F.3d 1512 (4th Cir. 1997) (same); United States v. Ives, 984 F.2d 649 (5th Cir. 1993) (same); United States v. Gallegos, 129 F.3d 1140 (10th Cir. 1997) (departure based on sentencing disparity among codefendants not justified when sentences dissimilar due to plea bargain).
Retrieving the full opinion text from the archive…
UNITED STATES of America, Appellant,
v.
Bing WONG, Also Known as Randy Shaw, Also Known as James Benson, Also Known as Mark Johnson; Peter L. Moore; And William Andre Mitchell, Appellees
97-1441WM.
Court of Appeals for the Eighth Circuit.
Oct 14, 1997.
127 F.3d 725
1997 U.S. App. LEXIS 28630
1997 WL 629849
D. Michael Green, Kansas City, MO, argued (Stephen L. Hill, Jr., on the brief), for appellant., Glenn E. Bradford, Kansas City, MO (Edward F. Walsh, IV, Kansas City, MO, on the brief), for appellees.
Arnold, Heaney, Beam.
Cited by 35 opinions  |  Published
Pinpoint authority: bottom 53%
RICHARD S. ARNOLD, Chief Judge.

In this case the Government appeals the sentences imposed on three defendants following guilty pleas for drug-related crimes. We reverse the sentences imposed by the District Court and remand the case for resentencing. The reasons given by the District Court for departing below the Guidelines — for example, that the cost of imprisonment for long periods of time is too high — are insufficient in law.

I.

Bing Wong, Peter L. Moore, and William A. Mitchell were named with six other codefendants in a ten-count indictment returned on April 11, 1995, charging them with violations of federal narcotics laws. In November 1995, Wong, Moore, and Mitchell each pleaded guilty to Count Two of the indictment, which charged a conspiracy to distribute cocaine and cocaine base (“crack”) in violation of 21 U.S.C. § 846 (1994).

The Government and Wong agreed that Wong’s base offense level under the federal Sentencing Guidelines, based upon the amount of “crack” cocaine involved, would be Level 38, with a four-level enhancement added under U.S.S.G. § 3B1.1 because Wong was the leader of a criminal organization comprised of five people or more. See[*727] U.S.S.G. § 3Bl.l(a). Wong and the Government also agreed that Wong would receive a three-level downward adjustment for acceptance of responsibility, bringing his final offense level to 39. The Government and Moore agreed that Moore’s offense level under the Sentencing Guidelines would be Level 38, and that Moore would receive a decrease of three levels for acceptance of responsibility. Likewise, under Mitchell’s plea agreement, Mitchell’s base offense level was 38, and he was entitled to a three-level downward adjustment for acceptance of responsibility.

The District Court held a sentencing hearing for the three defendants on December 17, 1996. At the hearing, each defendant stipulated to the amount of “crack” attributable to him for purposes of the Sentencing Guidelines. Wong stipulated to responsibility for 30 kilograms of “crack”; Moore stipulated to 30 kilograms; and Mitchell stipulated to 20 kilograms. Wong objected to being placed in Criminal History Category III, but his objection was overruled by the District Court. Because Wong’s base offense level was 39 and his Criminal History Category was III, he qualified for 324 to 405 months of imprisonment under the Sentencing Guidelines. Moore and Mitchell were each found by the District Court to qualify for a reduction of their sentences under the five-part “safety valve” test of 18 U.S.C. § 3553(f) (1994), therefore reducing them offense levels to 33 and their periods of imprisonment to 135 to 168 months each.

However, the sentences imposed by the District Court did not fall within these ranges. Wong received a sentence of 240 months’ imprisonment, and Mitchell and Moore each received a 120-month sentence. Each defendant also received a fine of $500.00 and a $50.00 special assessment. In sentencing Wong, Moore, and Mitchell, the District Court said:

I am going to make a decision to eliminate what I think would be an element of unfairness in sentencing strictly according to the guidelines.... [L]et me just say in doing so I am not undertaking technically to justify a downward departure, although I believe that even under the guidelines and regulations under the guidelines a downward departure is probably justifiable. I am really doing what I am doing today because I think it is fair and I think it is unconscionable to do otherwise, not only to the defendants but equally to the people of the United States.

Sentencing Hearing Trans, at 36. The Court, however, went on to mention a number of factors it believed justified downward departures for these defendants. The case is now here on the appeal of the United States.

II.

When sentencing criminal defendants, a federal court may depart from the. Sentencing Guidelines only in a manner provided by the Guidelines, subject of course to constitutional or statutory limits, none of which is argued here. United States v. Johnston, 973 F.2d 611, 613 (8th Cir.1992), cert. denied, 506 U.S. 1068, 113 S.Ct. 1019, 122 L.Ed.2d 165 (1993). The District Court’s disagreement with the Guideline ranges applicable to the defendants is not sufficient to justify deviation from the Guidelines. The commentary to U.S.S.G. § 5K2.0 notes that “dissatisfaction with the available sentencing range or a preference for a different sentence than that authorized by the guidelines is not an appropriate basis for a sentence outside the applicable guideline range.” See also Koon v. United States, — U.S. -, -, 116 S.Ct. 2035, 2044, 135 L.Ed.2d 392 (1996) (“A district judge now must impose on a defendant a sentence falling within the range of the applicable Guideline, if the case is an ordinary one.”). Insofar as the sentences imposed by the District Court reflect only the Court’s dissatisfaction with the constraints imposed on judicial discretion by the Sentencing Guidelines, the sentences must be reversed.

The Sentencing Guidelines do allow a district judge to depart from the prescribed ranges in exceptional cases. Koon v. United States, — U.S. at -, 116 S.Ct. at 2044. Examples of “encouraged factors” include victim provocation, coercion and duress, and the defendant’s diminished capacity. See U.S.S.G. §§ 5K2.10, 5K2.12, 5K2.13; Koon, - U.S. at -, 116 S.Ct. at 2045. Exam-[*728] pies of “forbidden factors,” or factors which may not be used in determining whether to depart from the Guidelines, include the defendant’s race, creed, sex, religion, national origin, or socio-economic status. See U.S.S.G. § 5H1.10; Koon, — U.S. at-, 116 S.Ct. at 2045. 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.” Koon, — U.S. at -, 116 S.Ct. at 2045.

The District Court noted several factors it used in reducing the appellees’ sentences below the prescribed Guidelines levels. First, the Court expressed concern with the fact that other defendants involved in the same drug trafficking scheme had received lesser sentences from other federal district judges. [1] This Court has held that “[disparity between sentences imposed on codefendants is not a proper basis for departure.” United States v. Polanco, 53 F.3d 893, 897 (8th Cir.1995), cert. denied, — U.S. -, 116 S.Ct. 2555, 135 L.Ed.2d 1073 (1996). Though one of the congressional goals in enacting the Sentencing Guidelines was the promotion of proportional and uniform sentences, some disparity will inevitably exist because of the unique facts of each individual defendant’s case. Id. Therefore, the District Court’s reliance on disparate sentences as a justification for departing from the Guidelines was erroneous.

Next, the District Court cited the costs of imprisoning the three defendants as a reason for departing from the guidelines and imposing shorter sentences. The decision whether tax dollars should be used to pay for lengthy sentences is a congressional determination, not one to be made by federal courts. The Sentencing Guidelines do not mention the expenses of imprisonment as a factor a court may use in deciding whether to depart from the Guidelines, and the District Court gave no explanation as to why such a factor would take the defendants’ case out of the “heartland” of the applicable Guidelines. See Koon, — U.S. at -, 116 S.Ct. at 2045. This factor should not have been considered by the District Court when it imposed the defendants’ sentences.

The District Court also justified its departure because it did not believe the length of the sentences imposed by the Guidelines on the three defendants was necessary to prevent future criminal activity. This consideration has already been taken into account in the drafting of the Guidelines. See 28 U.S.C. § 994(c)(6) (1994) (Commission required to consider “the deterrent effect a particular sentence may have”). This factor should not have been used to depart from the Guideline ranges.

Next, the District Court noted the distinction made under Sentencing Guidelines between powder cocaine and cocaine base, or “crack.” Under the Sentencing Guidelines, for sentencing purposes, “crack” is worth 100 times as much as powder cocaine. See 21 U.S.C. § 841(b) (1994); U.S.S.G. § 2Dl.l(c). We have rejected the proposition that this disparity can justify a downward departure. See United States v. Lewis, 90 F.3d 302, 304 (8th Cir.1996), cert. denied, — U.S. -, 117 S.Ct. 713, 136 L.Ed.2d 632 (1997).

Finally, the District Court justified its downward departure by the fact that there were no weapons or violence involved in the criminal offenses. A court should not ordinarily depart from a prescribed sentence on the basis of a potentially mitigating factor which the Guidelines have already taken into account. Koon, — U.S. at -, 116 S.Ct. at 2045. In this case, the applicable Guidelines for each defendant had already taken into account the absence of weapons or violence. None of the three defendants received the two-level enhancement which is required for possession of a weapon in con[*729] nection with a drug offense. See U.S.S.G. § 2D1.1(b)(1). And Mitchell and Moore each received a two-level downward adjustment under U.S.S.G. § 5C1.2, the “safety valve” exception, which, before it can be applied, requires that the defendant not have possessed a weapon or used violence in connection with his offense. See 18 U.S.C. § 3553(f)(2) (1994); U.S.S.G. § 5C1.2(2). Under Koon, if a factor has already been taken into account by the Guidelines, a district 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:” Koon, — U.S. at-, 116 S.Ct. at 2045. There is nothing in the record to suggest that the absence of weapons or violence makes this case exceptional or extraordinary, when compared with other cases in which there was no use of weapons or violence.

A word should be added about a factor not expressly referred to by the District Court at the sentencing hearing. Mitchell filed a “motion for downward departure based on ‘Family Need.’” The grounds advanced by the motion were, in brief, that four children were dependent upon Mitchell for their support. Two of these children had been living with Mitchell and his wife, Renita Y. Gee. Ms. Gee was also a defendant in the case, and Mitchell did not believe she would be able to support the children in his absence.

The District Court granted Mitchell’s motion for downward departure, but in , giving its reasons, it mentioned only the factors we have already discussed in this opinion. It said nothing about the family’s circumstances alleged in the motion. Thus, we do not know whether the District Court rejected these family circumstances as a ground for departure, or whether it simply failed to reach the issue. The parties and the District Court, on remand, will be free to pursue this matter in whatever way the law and the facts permit.

A few observations on the point may be in order. Congress instructed the Commission to consider the relevance of “family ties and responsibilities” to sentencing. 28 U.S.C. § 994(d)(7) (1994). Congress also declared “the general inappropriateness of considering the ... family ties and responsibilities” of a defendant in fixing the length of imprisonment. 28 U.S.C. § 994(e). The Commission, in turn, has issued a policy statement under U.S.S.G. § 5H1.6, which reads as follows:

Family ties and responsibilities ... are not ordinarily relevant to determining whether a sentence should be outside the applicable guideline range.

Such factors, however, “may be relevant ... in exceptional cases,” Introductory Commentary, U.S.S.G. Part 5H. We suggest that the District Court, on remand, explore whether this case can properly said to be extraordinary or exceptional in any relevant way.

III.

Because the District Court erred in departing from the Sentencing Guidelines for the reasons we have discussed, we reverse the sentences for Bing Wong, Peter L. Moore, and William A. Mitchell, and remand the case to the District Court for resentencing, in a manner not inconsistent with this opinion.

It is so ordered.

1

. Four defendants who were involved in the Wong organization received sentences from other federal judges which departed from Sentencing Guideline ranges, all because of motions made by the Government as a result of the defendants' substantial assistance. Appellant's Br. at 13-14 n. 11. No such motion was made in these three defendants' cases, and there is no claim that the Government was legally obliged to make such a motion.