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Defendant-appellant, Cheng Ah-Kai, appeals from a judgment of conviction entered on February 1, 1991 in the United States District Court for the Eastern District of New York (Nickerson, J.), after a plea of guilty to a charge of importing more than one kilogram of heroin into the United States, in violation of 21 U.S.C. § 952(a) and § 960(b)(1)(A). Prior to sentencing, the United States Attorney moved for downward departure from the sentence established in the United States Sentencing Guidelines ("U.S.S.G." or "sentencing guidelines") for Cheng's "truthful, forthright and important" cooperation with the government. Although Cheng argued for a sentence below the statutory minimum, the district court reluctantly agreed with the government that because the motion was made under U.S.S.G. § 5K1.1, it did not have the authority to depart below the statutory minimum sentence. The district court was in accord with the government's argument that departure below the statutory minimum must be preceded by a government motion made specifically under the authority of 18 U.S.C. § 3553(e). We reject the government's argument, vacate the judgment of the district court, and remand for resentencing.


951 F.2d 490 (1991)

UNITED STATES of America, Appellee,


CHENG AH-KAI, Defendant-Appellant.

No. 105, Docket 91-1192. United States Court of Appeals, Second Circuit.

Argued September 13, 1991. Decided December 6, 1991.

New York Law School location: File #1311, Box #128