Quintano

*440 MEMORANDUM *

The district court departed downward to sentence Appellee Quintano below the five-year statutory minimum following his guilty plea to one count of conspiracy to possess with intent to distribute cocaine. The government appeals, arguing that the district court acted beyond its authority by departing below the statutory minimum based on Mr. Quintano’s assistance to authorities despite the government’s refusal to recommend such a departure pursuant to United States Sentencing Guidelines (U.S.S.G.) § 5K1.1. Mr. Quintano contends that the government acted in bad faith and with “unclean hands” by preventing him from assisting in investigations and by failing to make a § 5K1.1 motion. In the alternative, he argues that Koon v. United States, 518 U.S. 81 , 116 S.Ct. 2035 , 135 L.Ed.2d 392 (1996), permits the district court to depart downward in its discretion pursuant to U.S.S.G. § 5K2.0.

We have subject matter jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742 (b). We reverse and remand for resentencing. Without a motion from the government, the district court cannot depart below the statutory mandatory minimum. Because there was no such motion here, Mr.…