§712 Substantial Assistance: Necessity for Government Motion
3d Circuit requires government motion to depart downward from mandatory minimum. (712) Defendant pleaded guilty to bank fraud and identity theft. Defendant cooperated in the investigation, and the government made a motion for a downward departure under 18 U.S.C. § 3553(e) for the bank fraud conviction but not for defendant’s identity theft conviction. Identity theft carries a mandatory two-year minimum, and the district court imposed 10 months on the bank fraud and two years on the identity theft. The Third Circuit held that without a government motion on the identity theft conviction, the district court had no authority to depart below the mandatory minimum on the identity theft conviction. U.S. v. A.M., __ F.3d __ (3d Cir. June 20, 2019) No. 18-1120.
8th Circuit upholds government’s refusal to file substantial assistance motion. (712) Defendant pleaded guilty pursuant to a plea agreement that stated that if defendant had “substantially assisted” the government as of the date of the agreement, the government would file a motion for downward departure. The agreement also stated that if defendant failed to provide truthful information about the ongoing investigation, the government would not file a motion. After signing the agreement, defendant refused to testify against his codefendant, and the government did not file a motion for a downward departure. The district court sentenced defendant to the statutory maximum. The Eighth Circuit found that the government did not breach the plea agreement. U.S. v. Edger, __ F.3d __ (8th Cir. May 23, 2019) No. 18-1594.
Supreme Court says courts have limited power to review government’s refusal to file substantial assistance motions. (712) In a unanimous opinion written by Justice Souter, the Supreme Court held that “federal district courts have authority to review a prosecutor’s refusal to file a substantial assistance motion and to grant a remedy if they find that the refusal was based on an unconstitutional motive,” such as “race or religion.” However, “a claim that a defendant merely provided substantial assistance will not entitle a defendant to a remedy or even to discovery or an evidentiary hearing.” Nor will “generalized allegations of improper motive.” The defendant here failed to make a “substantial threshold showing; counsel “merely explained the extent of [defendant’s] assistance to the Government.” The Government’s refusal to make the motion may have been based “not on a failure to acknowledge or appreciate [defendant’s] help, but simply on its rational assessment of the costs and benefits that would flow from moving.” Wade v. U.S., 504 U.S. 181, 112 S.Ct. 1840 (1992).
1st Circuit affirms court’s refusal to vary despite defendant’s cooperation. (712) Defendant argued that the district court sentenced her to a prison term because it was under the incorrect impression that, in the absence of a § 5K1.1 motion, it could not consider her efforts to cooperate with the government. See U.S. v. Landrón–Class, 696 F.3d 62 (1st Cir. 2012) (sentencing court has discretion to consider defendant’s cooperation as 18 U.S.C. § 3553(a) factor). The First Circuit found no error. It was clear from the transcript of the sentencing hearing that the district court was fully aware that it had the discretion to consider defendant’s willingness to cooperate. But having discretion to consider something did not entitle a defendant to force the district court to factor the issue into its final decision. It was evident from the transcript that, although the court was willing to impose a sentence that was significantly lower than recommended by the guidelines, it also considered the charged offenses to be sufficiently serious to warrant imprisonment. The district court’s choice to impose a term of imprisonment was not an abuse of discretion. U.S. v. Pacheco, 727 F.3d 41 (1st Cir. 2013).
1st Circuit says government’s obligation to make § 5K1.1 motion was negated by defendant’s lie. (712) The government’s obligation to make a § 5K1.1 motion under defendant’s plea agreement was conditioned on defendant providing “complete, truthful and substantial cooperation.” The government would be released from compliance if defendant failed “in any way” to fulfill his obligation. Although defendant provided significant assistance, he admitted that in one instance, he had “failed to remember” a 1996 check that became important at trial and crucial to the position of the U.S. Attorney. He stipulated to an obstruction of justice increase. While defendant argued that this single episode did not negate the extensive cooperation he provided, his plea agreement explicitly gave the government the authority not to request a downward departure in the event defendant failed to meet his obligation to be truthful. The First Circuit held that in the face of defendant’s admitted obstruction of justice, the government’s decision was within its discretion under the agreement. U.S. v. Cruz-Mercado, 360 F.3d 30 (1st Cir. 2004).
1st Circuit upholds refusal to make § 5K1.1 motion for defendant who was not truthful at first two debriefings. (712) Defendant argued that the sole reason the government failed to move for a § 5K1.1 downward departure was in retaliation for his telling the truth in his third debriefing, a truth which was exculpatory as to co-defendant Ortiz. The district court held that defendant had not made a threshold showing of improper motivation by the government. In explaining its reasons for not filing the motion, the government complained that, because of defendant’s statements and writing produced at the third of his four debriefings, the prosecution was forced to provide defense counsel with Brady and Jencks material. Concerned about these statements, the judge investigated further and took proffers from both counsels. In the end, the judge was satisfied that the government had reason to think defendant was not truthful at the last two debriefings and had not given substantial assistance. Defendant’s untruthfulness was shown by the fact that he did not disclose certain information helpful to Ortiz and another conspirator until his third debriefing. Substantial assistance is a higher standard for a defendant to meet than mere cooperation. Defendant’s failure to be forthcoming in earlier debriefings evidenced his failure to meet this higher standard. U.S. v. Nelson-Rodriguez, 319 F.3d 12 (1st Cir. 2003).
1st Circuit holds that government did not breach plea agreement by refusing to move for departure. (712) The government conceded that defendant provided assistance in its investigation of other drug traffickers, but refused to move for a § 5K1.1 departure because he was reticent about a murder in Boston. Defendant argued that the government improperly refused to file the § 5K1.1 motion to retaliate against him for his successful exercise of his right to a speedy trial. The First Circuit held that government did not breach the plea agreement by refusing to make the substantial assistance motion. The plea agreement did not obligate the government to file a § 5K1.1 motion before the filing was approved by the Substantial Assistance Committee. If the prosecutor left an impression that a request for approval to file a § 5K1.1 motion would be considered by the Committee based on defendant’s help in the drug investigation, then that promise was kept. The Committee was not told of defendant’s Speedy Trial Act motion or the dismissal of the first indictment. When the parties started to negotiate anew concerning the second indictment, the government told defendant it would not file a § 5K1.1 motion. Nonetheless, defendant decided to plead guilty and the government agreed not to appeal from the allowance of the speedy trial motion. Thus, at the time defendant pled guilty, it was clear that the government would not file a substantial assistance motion. U.S. v. Davis, 247 F.3d 322 (1st Cir. 2001).
1st Circuit agrees that defendant did not provide substantial assistance. (712) After an extensive hearing, the district court concluded that defendant had not provided substantial information, as required by the plea agreement and § 5K1.1. Defendant argued that the district court undervalued his cooperation and refused to consider evidence of gender-based animus against his attorney. The First Circuit upheld the district court’s finding that defendant did not provide substantial assistance. The judge meticulously reviewed and assessed each item of information that defendant provided and the government’s reasons for discounting its value. The intelligence contributed by defendant in some instances duplicated information the government had from other sources, involved small quantities of drugs, identified individuals who already were cooperating and, in some cases, led only to time-barred crimes. The fact that the government knew defendant had already turned over all of the information he possessed at the time he executed the agreement was not an implicit acknowledgement that he had already provided substantial assistance. The government’s retention of discretion to file the motion was an unambiguous signal that there still were hurdles to be cleared. Finally, it was not necessary to address the claim of gender-based animus because defendant did not meet the substantial assistance threshold. U.S. v. Doe, 233 F.3d 642 (1st Cir. 2000).
1st Circuit holds that failure to seek departure below statutory minimum had no effect on defendant’s sentence. (712) Defendant claimed that the government promised that if he provided substantial assistance, it would move for a downward departure under 18 U.S.C. § 3553(e) and USSG § 5K1.1. In the end, the government moved under the guideline, but did not explicitly mention § 3553(e), which would have permitted the court to depart below the statutory minimum sentence. The First Circuit found that the failure to seek a departure under § 3553(e) did not have any effect on defendant’s sentence. The mandatory minimum sentence was ten years. See 21 U.S.C. § 841(b)(1)(A)(ii). The judge chose to impose a sentence well above this mandatory minimum. Defendant could not explain how he was prejudiced by the failure to reduce the sentencing floor below ten years where the judge had no intention of departing downward to that floor, let alone below it. U.S. v. Cruz, 213 F.3d 1 (1st Cir. 2000).
1st Circuit holds that defendant was not entitled to substantial assistance departure. (712) Defendant’s plea agreement obligated him to cooperate with the government and obligated the government to recommend, in part, that the district court sentence defendant at the low end of the applicable sentencing range. The agreement did not mention either substantial assistance or a downward departure. At sentencing, defendant claimed that he was entitled to a downward departure because he had furnished the government with the names of 18 persons involved in criminal activity. The First Circuit disagreed. As stated in U.S. v. Alegria, 192 F.3d 179 (1st Cir. 1999), departures for substantial assistance may only be made under § 5K1.1, not § 5K2.0. A § 5K1.1 departure requires a government motion. The government has almost unlimited discretion in deciding whether to file such a motion. The only limits are when the government’s failure to make such a motion is based on a constitutionally impermissible factor, such as race or religion, or where the government has otherwise agreed to make the motion. Neither factor was present here, and the First Circuit refused to expand the exceptions. U.S. v. Sandoval, 204 F.3d 283 (1st Cir. 2000).
1st Circuit holds that pre-agreement promise did not obligate government to file § 5K1.1 motion. (712) Despite defendant’s cooperation, the prosecutor elected not to file a § 5K1.1 departure motion. Defendant claimed the government obligated itself to file such a motion by assuring him, in the presence of counsel, that it would move for a departure if defendant would “tell the truth, be available, and cooperate.” The First Circuit held that the representation, even if made, did not survive the execution of the plea agreement. The provision in the agreement stating that defendant was not expected to “make a case” against anyone, but merely provide “full, complete and truthful cooperation,” did not import the prosecutor’s promise into the agreement. “Full, complete, and truthful cooperation” is not the same as substantial assistance. Substantial assistance also requires an analysis of the significance and utility of the information provided, the nature and extent of the assistance, and the timeliness of the proffer. Moreover, the plea agreement contained an unqualified integration clause stating that the government “has made no promises or representations except as set forth in this plea agreement.” U.S. v. Alegria, 192 F.3d 179 (1st Cir. 1999).
1st Circuit does not remand where companion case found defendant did not provide substantial assistance. (712) As part of a plea agreement, the government promised to consider filing a § 5K1.1 motion or a Rule 35(b) motion in two cases against defendant. The government ultimately declined to move for a departure in either case, noting that it had explicitly retained in the agreement “sole discretion” over whether to file the motion, and that defendant had started to cooperate too late. Defendant argued that a hearing was required to determine whether the government breached paragraph 5 of the agreement, which stated that “the defendant’s failure to ‘make a case’ shall not relieve the government of exercising its discretion” under either § 5K1.1 or Rule 35(b). The First Circuit found some tension between the government’s paragraph 5 promise and counsel’s statement that defendant’s cooperation came too late. Under other circumstances, it might have remanded to the district court to hold an evidentiary hearing on the question of whether the government violated paragraph 5. However, the district judge in a companion case recently found, after an evidentiary hearing, that defendant did not provide substantial assistance to the government. This finding, although made by a different judge, was binding as between defendant and the government unless set aside on appeal. U.S. v. Doe, 170 F.3d 223 (1st Cir. 1999).
1st Circuit says allegation that prosecutors were slow in using information did not meet bad faith standard. (712) Despite its plea agreement promise to consider filing a § 5K1.1 motion in two cases against defendant, the government declined to move for the departure, noting that it had explicitly retained in the agreement “sole discretion” over whether to file the motion, and that defendant had started to cooperate too late. Defendant claimed that his cooperation was not late, but that the government simply failed to follow up his information until it was too late. The judges in both cases, citing Wade v. United States, 504 U.S. 181 (1992), held that they could not review the government’s refusal to file the motions because defendant had not alleged an unconstitutional bias. Defendant argued that he was entitled to attack the government’s refusal to move for a departure based on “bad faith” where, as here, the government had signed a plea agreement. Although other circuits have reached conflicting results, the First Circuit found it unnecessary to decide whether a government’s refusal to move for a downward departure under a plea agreement can be attacked on bad faith grounds where the allegations do not qualify under Wade. Defendant’s allegations, even if true, amounted to nothing more than the charge that prosecutors or police were slow in exploiting information he provided. This basically was a claim that the government acted carelessly or unreasonably. If a downward departure for substantial assistance could be ordered by the court under a reasonableness standard, virtually every refusal by the prosecutor would be open to judicial review. U.S. v. Doe, 170 F.3d 223 (1st Cir. 1999).
1st Circuit says government could refuse to make § 5K1.1 motion based on polygraph test. (712) As part of defendant’s plea agreement, the government agreed to move for a § 5K1.1 departure, contingent on defendant’s truthful assistance. Defendant agreed to take a polygraph test if requested by the government. If in the opinion of the examiner, defendant’s answer’s indicated deception, defendant would be in breach of the agreement. Defendant submitted to a polygraph and the examiner found that his answers showed deception. Accordingly, the government refused to move for a departure. The First Circuit held that the plea agreement permitted the government to refuse to make a § 5K1.1 motion based on the polygraph results. The plea agreement’s polygraph requirement was not void. Defendant agreed to the polygraph’s use as the standard by which his performance would be measured by the government. U.S. v. Santiago-Gonzalez, 66 F.3d 3 (1st Cir. 1995).
1st Circuit finds refusal to move for departure was not in bad faith and had rational basis. (712) Defendant argued that the government acted in bad faith and without a rational basis in refusing to move for a substantial assistance departure. The 1st Circuit disagreed. The government explained that defendant’s version of events contradicted that of other government witnesses and itself varied widely from one session to the next. Defendant revealed information during polygraph sessions that he had previously withheld. He also disregarded government instructions not to discuss his testimony with others. Although defendant furnished information about one drug dealer and an alleged hashish shipment, the information was incomplete and had already been provided by other government witnesses. Defendant was not entitled to an evidentiary hearing. U.S. v. Catalucci, 36 F.3d 151 (1st Cir. 1994).
1st Circuit rules government was not required to advise court of defendant’s cooperation because defendant never requested it. (712) Defendant’s plea agreement provided that at the request of defendant, the U.S. Attorney’s office would advise any entity or person of defendant’s cooperation. The 1st Circuit ruled that the government failure to advise the sentencing court of defendant’s cooperation was not a breach of promise because defendant never requested the government to so advise the court. The agreement clearly limited the government’s obligation to offer its views about defendant’s cooperation to those instances where the defendant made a request. Moreover, even if the government had so advised the court, it would not have changed defendant’s sentence. Defendant already received a sentence at the bottom of his guideline range. A sentencing court may not depart downward below the guideline range based upon a defendant’s cooperation in the absence of a government motion under section 5K1.1. U.S. v. Atwood, 963 F.2d 476 (1st Cir. 1992).
1st Circuit rules defendant not entitled to substantial assistance departure in absence of government motion. (712) The 1st Circuit rejected defendant’s contention that she was entitled to a downward departure based upon her assistance. A sentencing court may not depart on the basis of substantial assistance except when the government makes a motion. Although defendant claimed the government refused to make such a motion in retaliation for her exercise of her right to a jury trial, there was no evidence to sup-port this theory. A wholly conclusory allegation, unsupported either by proven facts or by reasonable inferences from proven facts, cannot suffice to overcome the force of the government motion requirement. U.S. v. Amparo, 961 F.2d 288 (1st Cir. 1992).
1st Circuit upholds its jurisdiction to consider whether government improperly decided not to move for downward departure. (712) The 1st Circuit upheld its jurisdiction to consider defendant’s claim that the government based its decision not to file a motion for a downward departure under guideline § 5K1.1 on an improper factor. To the extent that the government’s reasons for withholding action conflicted with guideline § 5K1.1, due process concerns were raised. Hence the appellate court could review the sentence under 18 U.S.C. § 3742(a)(1) to determine whether it was imposed in violation of law. U.S. v. Drown, 942 F.2d 55 (1st Cir. 1991).
1st Circuit upholds jurisdiction to consider ability to make substantial assistance departure without government motion. (712) The 1st Circuit ruled that it had appellate jurisdiction to consider whether a district court has authority to depart downward for substantial assistance under guideline § 5K1.1 in the absence of a government motion. Although there is no unanimity among the circuit courts as to whether such jurisdiction is conferred by 18 U.S.C. § 3742(a)(1) (granting appellate jurisdiction over sentences imposed in violation of law) or 18 U.S.C. § 3742(a)(2) (granting appellate jurisdiction over sentences resulting from incorrect applications of the guidelines), the court found it sufficient merely to find it had jurisdiction without particularizing the source. U.S. v. Romolo, 937 F.2d 20 (1st Cir. 1991).
1st Circuit reaffirms that court may not depart downward for substantial assistance in the absence of government motion. (712) The 1st Circuit rejected defendant’s contention that the district court had the ability in the absence of a government motion to depart downward under guideline § 5K1.1 based upon his substantial assistance to authorities. The court termed “dictum” the language in U.S. v. La Guardia, 902 F.2d 1010 (1st Cir. 1990) which left open the possibility that in “egregious cases” the government’s arbitrary and capricious failure to move for such a departure might be an aggravating circumstance justifying a downward departure under guideline § 5K2.0. Other courts have determined that § 5K2.0 cannot provide authority for a downward departure based on a defendant’s substantial assistance because that circumstance was adequately considered by the commission in guideline § 5K1.1. Nonetheless, it was “theoretically possible, albeit unlikely” that the circumstances surrounding a prosecutor’s failure to file such a motion might justify a departure. Defendant’s situation was nowhere close to the level of egregiousness necessary to seriously consider a departure. The government explained its reasons for the denial which the district court found to be “facially reasonable.” The district court was not obligated to order an evidentiary hearing on the matter. U.S. v. Romolo, 937 F.2d 20 (1st Cir. 1991).
1st Circuit finds government’s refusal to file motion for substantial assistance departure was not arbitrary. (712) Defendant claimed his right to due process was violated when the court denied his request for a downward departure based upon his substantial assistance. The 1st Circuit upheld the district court’s actions. The constitutionality of the requirement that the government make a motion for a substantial assistance departure had previously been upheld by the Circuit court. There was no evidence that the government’s failure to make such a motion was arbitrary. Defendant provided no assistance prior to his trial but, after he was convicted, sought to help. By then, all co-defendants but one were convicted. While defendant cooperated to some unspecified degree as to that one co-defendant, the government’s case against the co-defendant was already strong. U.S. v. Bannister, 924 F.2d 21 (1st Cir. 1991).
1st Circuit suggests downward departure based on defendant’s rehabilitation may be proper in rare circumstances. (712) The district court departed downward because of defendant’s rehabilitation efforts since arrest and indictment and defendant’s good faith efforts to offer cooperation. The 1st Circuit reversed. In the absence of a government motion, a court may not depart downward based on a defendant’s cooperation. However, the court found that a defendant’s rehabilitation might, on rare occasions, serve as a basis for a downward departure, but only if the rehabilitation is “so extraordinary as to suggest its presence to a degree not adequately taken into consideration by the acceptance of responsibility reduction.” Defendant did not present such a case. His rehabilitative endeavors, “though carried out in a conscientious fashion, were largely prompted by the specific mandates of his pretrial release agreement.” U.S. v. Sklar, 920 F.2d 107 (1st Cir. 1990).
1st Circuit holds that government need not make a § 5K1.1 motion absent explicit promise to do so. (712) Defendant argued that the precondition that a government motion § 5K1.1 is required for a downward departure for substantial assistance was unlawful. The 1st Circuit rejected the argument, citing its decision in U.S. v. La Guardia, 902 F.2d 1010 (1st Cir. 1990). The court also held that there is no legal basis for requiring the government to make a § 5K1.1 motion unless it explicitly promised to do so, and that no such promise need be implied in a plea bargain agreement to make it meaningful. U.S. v. Havener, 905 F.2d 3 (1st Cir. 1990).
1st Circuit upholds constitutionality of “substantial assistance” guideline. (712) Section 5K1.1 permits a court to depart downward from the guidelines “upon motion of the government,” where a defendant has furnished substantial assistance in the investigation or prosecution of another person. The defendant argued that the requirement of a government motion violated due process by “eliminating or interfering with the sentencing court’s right to [employ] judicial discretion in individualized sentencing.” The 1st Circuit disagreed, holding that Congress’s power to control judicial sentencing discretion includes the power to specify the factors a court may consider in setting a sentence. The court noted that district courts have ample power to demand the disclosure of all pertinent information for sentencing. The court left open the possibility that in a “egregious case” a court might be justified in taking some corrective action where the prosecution stubbornly refuses to file a motion. This was not such a case. U.S. v. La Guardia, 902 F.2d 1010 (1st Cir. 1990).
1st Circuit holds defendant was not entitled as a matter of right to a departure based upon cooperation with government. (712) Defendant claimed that the sentencing court erred in failing to depart from the guidelines due to his cooperation with the government. The 1st Circuit disagreed. Guideline § 5K1.1 provides that upon motion by the government, the sentencing court may grant a departure based upon the defendant’s substantial assistance with the government. The government did not make such a motion, and it had adamantly objected to any such departure. The section is permissive, not mandatory. Given the defendant’s failure to explain why the appellate court should find that there was an abuse of discretion, the court refused to consider whether a decision not to depart would even constitute an erroneous application of the guidelines. U.S. v. Wright, 873 F.2d 437 (1st Cir. 1989).
2nd Circuit affirms government’s assessment that defendant breached cooperation agreement. (712) Defendant cooperated with the government for over two years, until he was arrested in Utah for assaulting his wife and daughter and driving while intoxicated. Although Utah eventually dismissed the charges, the U.S. Attorney’s Office conducted its own investigation and concluded that defendant had committed the charged offenses. The government decided that defendant had breached his cooperation agreement, and declined to make a motion under U.S.S.G. § 5K1.1 or 18 U.S.C. § 3553(e). The Second Circuit held that the government properly exercised its discretion in deciding not to file a § 5K1.1 or § 3553(e) motion based on its good-faith assessment that defendant had breached his agreement to remain free of criminal activities. The unambiguous terms of the cooperation agreement gave the government considerable discretion in deciding whether to file a motion under § 5K1.1 or § 3553(e), based in part on its assessment that defendant had remained free of criminal activities. Although the Utah charges were dismissed, uncharged conduct may give rise to a breach of a cooperation agreement. U.S. v. Doe, 741 F.3d 359 (2d Cir. 2013).
2nd Circuit rejects defendant’s claim of improper motive by government. (712) Relying on his proffer agreement, defendant contended that the district court erred in declining to compel the government to file a motion under 18 U.S.C. § 3553(e) and guideline § 5K1.1 for a substantial assistance departure. Defendant contended he gave substantial assistance to ICE, and that the government’s refusal to make the motion was retaliation for his decision to proceed to trial. The Second Circuit found no error. To warrant a hearing on the government’s failure to make a § 5K1.1 motion, the defendant must present more than “generalized allegations of improper motive”; he must make a “substantial threshold showing” of such a motive. Defendant here made no such showing. The government never agreed to make a motion on his behalf. Defendant’s proffer agreement stated that “THIS IS NOT A COOPERATION AGREEMENT,” and that in receiving defendant’s proffer, the government “does not agree to … make a motion” on defendant’s behalf. Defendant’s contention that the government was retaliating for his insistence on exercising his right to a trial was entirely conclusory. U.S. v. Gomez, 705 F.3d 68 (2d Cir. 2013).
2nd Circuit holds that defendant made sufficient showing of government bad faith to warrant evidentiary hearing. (712) After engaging in nine proffer sessions, defendant and the government entered into a cooperation agreement. In return for defendant’s plea and cooperation, the government agreed to file a motion for a substantial assistance departure. However, at sentencing, the government refused to file the motion, contending that defendant had breached the agreement. Defendant argued that the government acted in bad faith, but the district court denied his request for an evidentiary hearing. The Second Circuit held that defendant made a sufficient showing to entitle him to an evidentiary hearing on his claim of government bad faith. There were no proffer sessions or other meetings between defendant and the government after they entered into the cooperation agreement. Any dissatisfaction by the government must have been based on events that occurred before they entered the cooperation agreement. It was clear that the government had knowledge of two of the four alleged misrepresentations long before the cooperation agreement was signed. It also was not clear whether the government knew by the time of the agreement of alleged drug activities by defendant. Defendant’s showing was sufficient to warrant an evidentiary hearing. U.S. v. Roe, 445 F.3d 202 (2d Cir. 2006).
2nd Circuit affirms where defendant did not allege government’s refusal to move for departure was in bad faith. (712) Defendant argued that the district court erred in refusing to depart downward based on his allegedly providing substantial assistance to the government in the investigation that ultimately led to indictment of others. The Second Circuit found no error, since defendant did not allege, nor did the record reflect, that the government’s decision not to file a § 5K1.1 motion was motivated by bad faith. Thus, the district court did not err in refusing to depart downward based on defendant’s alleged provision of substantial assistance. U.S. v. Brown, 321 F.3d 347 (2d Cir. 2003).
2nd Circuit holds that government did not act in bad faith in refusing to make departure motion. (712) While on bail, defendant cooperated with the government, including making monitored telephone calls to other targets of the government’s investigation. Defendant was unable to elicit any incriminating information in those calls, and the government refused to make the departure motion. Where a plea agreement provides that the government will file a § 5K1.1 letter if it determines that the defendant has provided substantial assistance, the court may review the agreement to see if the government has acted in good faith. The Second Circuit found that the government was not guilty of bad faith. The government met with defendant for over a year in an attempt to explore ways in which he might provide assistance. These efforts did not substantially further an investigation, because defendant’s “failure of initiative after his initial attempts had been rebuffed by individuals who were aware of his arrest.” Moreover, in recognition of defendant’s cooperation, the government offered to withdraw the prior felony information it had filed. Given the government’s substantial time commitment to the case, its generous offer to withdraw the prior felony information and defendant’s “failure of initiative,” the district court did not err in concluding the government did not act in bad faith simply because it failed to follow up one lead that it viewed as stale and insufficiently detailed. U.S. v. Reeves, 296 F.3d 113 (2d Cir. 2002).
2nd Circuit says court cannot make substantial assistance departure under § 5K2.0. (712) Although the district court granted defendant a downward departure under § 5K2.0 based on the injuries he and his wife allegedly received in retaliation for cooperating with the government, defendant challenged the district court’s refusal to grant him an additional departure under § 5K2.0 for his purported assistance to the government. The government had refused to file a § 5K1.1 motion. The Second Circuit held that a district court may grant a departure based on a defendant’s substantial assistance to the government only upon motion by the government. Section 5K2.0 only permits departures when there exists an aggravating or mitigating circumstance not adequately taken into account by the sentencing commission in formulating the guideline. Yet the “very existence of § 5K1.1 demonstrates that the sentencing commission clearly considered the questions of whether assistance to the government should be taken into account.” U.S. v. El-Gheur, 201 F.3d 90 (2d Cir. 2000).
2nd Circuit rejects need for hearing on government’s refusal to move for departure. (712) Although defendant provided some assistance to the government, the prosecutor declined to make a § 5K1.1 motion. Defendant argued on appeal that the district court should have conducted a hearing to assess whether the prosecutor promised defendant such a motion, and whether the government had an impermissible motive for refusing to make the reduction. The Second Circuit rejected the need for a § 5K1.1 hearing. First, defendant did not request a hearing. Therefore, the court could not have erred in failing to hold it. Second, defendant had no right to such a hearing unless he made a substantial threshold showing of an improper motivation on the prosecutor’s part. Defendant suggested two possible motives—prosecutorial vindictiveness and racism. Neither was supported by more than speculation. U.S. v. Difeaux, 163 F.3d 725 (2d Cir. 1998).
2nd Circuit allows departure without government motion for assistance to local police. (712) Defendant argued that the district court erred by declining to consider a downward departure under § 5K2.0 based on assistance defendant provided to local law-enforcement agencies. In the first opinion in this case, U.S. v. Kaye, 65 F.3d 240 (2d Cir. 1995), the Second Circuit held that a departure based on assistance to local authorities could only be considered under § 5K1.1, upon motion of the government. On reconsideration, however, the court held that § 5K1.1 was not intended to cover assistance to local law-enforcement. Section 5K1.1’s requirement that federal prosecutors make a motion for a departure is so ill-suited to situations in which defendant assists non-federal authorities, that some explicit expression of the Commission’s intent would be expected. Thus, the court had authority to depart downward without a government motion. Judge Van Graafeiland dissented, arguing that the original opinion was correct. U.S. v. Kaye, 140 F.3d 86 (2d Cir. 1998).
2nd Circuit finds no obligation to make § 5K1.1 motion where defendant breached plea agreement. (712) Defendant argued that the district court erred in not compelling the government to make a § 5K1.1 motion for a downward departure based on his substantial assistance during the investigation that led to the indictments. The Second Circuit found this argument almost frivolous, given defendant’s breach of the plea agreement. Defendant agreed as part of the plea agreement to respond truthfully and completely to all inquiries from the U.S. Attorney’s office. Defendant then attempted to obtain $10,000 from a co-conspirator to bribe a judge in the co-conspirator’s trial, and lied when government attorneys asked him when he had last spoken with the co-conspirator. Defendant’s conduct so undercut his credibility that the government was unable to use him as a witness at trial. U.S. v. Fernandez, 127 F.3d 277 (2d Cir. 1997).
2nd Circuit rejects departure for cooperation where government did not file § 5K1.1 motion. (712) Defendant argued that he was entitled to a downward departure for extraordinary acceptance of responsibility and cooperation with the government. He claimed that the district court failed to consider or rule on his motion for a downward departure. The Second Circuit found no error. Defendant misrepresented the record. During the hearing, defendant did not raise the issue of his cooperation. The assistance that defendant alleged he gave—disclosure of information leading to further investigation of others—is not ordinarily a basis for a downward departure except on a motion by the government. The government did not file a § 5K1.1 motion, and defendant did not allege any fact that would create an exception to the government motion requirement. U.S. v. Gomez, 103 F.3d 249 (2d Cir. 1997).
2nd Circuit says defendant’s lies, although corrected, justified refusal to move for departure. (712) The government agreed as part of defendant’s cooperation to move for a § 5K1.1 departure if defendant cooperated fully, provided substantial assistance, and provided truthful, complete and accurate information. Defendant then actively participated in the government’s bribery investigation of a certain bank officer. At a subsequent debriefing meeting, however, defendant denied receiving kickbacks from two other parties. Defense counsel then asked to speak with his client in private. After a break, defendant acknowledged his receipt of payments from these other two parties and provided details to the government. The Second Circuit held that defendant’s lies breached the cooperation agreement and justified the prosecutor’s refusal to move for a § 5K1.1 departure. The lies, although swiftly corrected, seriously undermined defendant’s credibility as a potential government witness. A cooperating defendant’s truthfulness about his own past conduct is highly relevant to the quality of his cooperation. By lying to the prosecutor during the period of his cooperation, defendant made it impossible for the government to argue at any future trial that, despite his past sins, he had acknowledged his guilt, turned over a new leaf, and cooperated in a truthful manner. U.S. v. Brechner, 99 F.3d 96 (2d Cir. 1996).
2nd Circuit upholds refusal to make § 5K1.1 motion based on belief that defendant lied about unrelated crime. (712) Defendant provided substantial assistance about the embezzlement scheme and signed a formal cooperation agreement that provided that the government would move for a § 5K1.1 substantial assistance departure. The government then learned that defendant was involved in the arson of his house two years earlier. Defendant professed his innocence, but the government declined to move for a § 5K1.1 departure because it believed defendant had breached the terms of the cooperation agreement by lying about the arson and by not revealing that he was under criminal investigation for it. The Second Circuit held that the government was justified in not making the motion because of its reasonable belief that defendant lied about his involvement in the arson. The cooperation agreement did not require defendant to volunteer information concerning his criminal involvement on a continuing basis. However, the government could conclude that defendant materially breached the agreement when he lied about his involvement in the arson. U.S. v. Pollack, 91 F.3d 331 (2d Cir. 1996).
2nd Circuit upholds refusal to hold hearing on defendant’s bad faith claim. (712) The government agreed to move for a downward departure if it determined that defendant’s assistance was substantial. Although defendant provided information, it did not amount to much. The most promising tip did not result in a prosecution because the proposed drug deal fell apart when defendant got into an altercation with one of the participants. The government refused to move for a § 5K1.1 departure. Defendant argued that the government acted in bad faith. The district court rejected his argument without a hearing, and the Second Circuit affirmed. The government explained that defendant’s assistance was not substantial, emphasizing that defendant’s dispute with one target undermined a proposed sting operation. It chose not to prosecute another target because he withdrew from the proposed deal before delivering cash, making a conspiracy prosecution far less attractive and removing the ability to seize “buy” money. This reason was sufficient. U.S. v. Imtiaz, 81 F.3d 262 (2d Cir. 1996).
2nd Circuit finds refusal to file departure letter did not breach cooperation agreement. (712) After defendant was arrested, he agreed to cooperate and testify against a co-conspirator. In his cooperation agreement he promised not to give false or misleading information or to commit any further crimes. The government agreed that if he met his obligations, it would file a substantial assistance motion. The co-conspirator pled guilty so defendant was not required to testify. The government then learned that defendant had failed to disclose 11 earlier arrests under various aliases. Defendant denied the prior arrests and then fled. He remained at large until arrested on fraud charges. The Second Circuit agreed that the government had no obligation to make a § 5K1.1 motion. The cooperation agreement gave the government considerable discretion. Defendant’s obligation to comply with the law was not limited to the period of time he actively cooperated with the government, and his obligation to be truthful did not relate only to his statements about others. The prosecutor’s statement at his pre-trial hearing that the government was ready to give a § 5K letter was only a current assessment of defendant’s situation. It did not change the agreement. U.S. v. Resto, 74 F.3d 22 (2d Cir. 1996).
2nd Circuit requires hearing on government’s good faith in refusing to make § 5K1.1 motion. (712) Defendant alleged that the government breached his plea agreement by failing to make a § 5K1.1 motion. The Second Circuit directed the district court to hold an evidentiary hearing to determine whether the government acted in good faith. There was an oral plea agreement. Relying on the government’s assurances, defendant provided assistance that led to the arrest of three drug traffickers. The government was satisfied with his cooperation and sent him a written agreement stating that it would make a § 5K1.1 motion if he provided substantial assistance. Defendant signed the agreement. The government provided two justifications for its failure to perform, contending that defendant breached the agreement by informing a co-conspirator about his cooperation and that defendant changed his initial description of a co-conspirator’s drug activities. Defendant disputed these assertions, noting that an investigative report corroborated his position. The district court’s failure to resolve these disputed issues required a remand. U.S. v. Leonard, 50 F.3d 1152 (2d Cir. 1995).
2nd Circuit finds government’s failure to move for departure did not breach agreement. (712) The government agreed that if it determined that defendant had provided substantial assistance, it would move for a section 5K1.1 departure. At the trial of his co-conspirator, defendant initially balked at testifying. As a result, the government sought an immunity order to force him to testify. Later that day, defendant’s attorney said defendant was willing to testify, but the government replied that defendant breached the agreement and the government would not honor it. Defendant nonetheless testified. The 2nd Circuit found the government did not breach the agreement by failing to move for a downward departure. The agreement explicitly placed the evaluation of defendant’s performance within the discretion of the government. The appellate court agreed with the district judge’s finding that defendant, and not the government, acted in bad faith. U.S. v. Hon, 17 F.3d 21 (2nd Cir. 1994).
2nd Circuit reaffirms that refusal to depart is not appealable. (712) One defendant claimed that the district court should have made a downward criminal history departure and the other defendant claimed that the district court should have departed downward based upon her substantial assistance. The 2nd Circuit refused to review the refusals to depart. The first defendant’s request for a downward departure would have no effect upon the mandatory minimum sentence he received, and a refusal to depart downward is not appealable. The second defendant’s argument for a substantial assistance departure in the absence of a government motion was foreclosed by the absence of a credible assertion that the government’s refusal to make the motion was based on an unconstitutional motive. U.S. v. Rivera, 971 F.2d 876 (2nd Cir. 1992).
2nd Circuit reverses downward departure for cooperation made without government motion. (712) Despite the lack of a government motion under section 5K1.1, the district court departed downward, noting that defendant’s cooperation had been of some assistance to the government and that such cooperation was evidence of his contrition. The 2nd Circuit reversed, reaffirming that downward departures based on “substantial assistance” to the government may be made only where the government has made a motion under section 5K1.1. Cooperation cannot be separated into its benefit to the prosecution and its evidence of contrition, with a sentencing judge free to assess the latter as a grounds for departure in the absence of a government motion. The government’s decision not to move for a downward departure is reviewable only upon an adequately pleaded claim that the refusal was not rationally related to any legitimate governmental end. No such claim was made here. U.S. v. Gonzalez, 970 F.2d 1095 (2nd Cir. 1992).
2nd Circuit finds insufficient basis for government’s refusal to move for downward departure. (712) Defendant’s plea agreement provided that if in the “sole and unfettered discretion” of the government, defendant’s cooperation warranted a downward departure, the government would make a motion under section 5K1.1. After defendant and his brother — who was also a cooperating witness — testified, the government refused to move for the departure. It gave as its reasons: 1) defendant’s cooperation was untimely, 2) defendant was more culpable than the co-defendant against whom he had testified, 3) defendant pled guilty only because his brother had done so, 4) the plea agreement benefited defendant in other ways, 5) the “substantial assistance” clause in the plea agreement was not bargained for, and 6) defendant’s trial testimony was inconsistent with the testimony of his brother. The district court found that the government acted in good faith in refusing to move for a downward departure, but the 2nd Circuit remanded for reconsideration, ruling that none of the stated reasons were sufficient. Even if the district court thought that defendant had testified falsely, the court failed to say so. The case was remanded for further consideration of the good faith issue, with a key issue being the veracity of defendant’s testimony. U.S. v. Knights, 968 F.2d 1483 (2nd Cir. 1992).
2nd Circuit discusses grounds for challenging requirement of government motion. (712) Defendant challenged the government motion requirement in guideline section 5K1.1. The 2nd Circuit found that it was bound by Circuit precedent to hold that no departure was available for defendant based on his cooperation in the absence of a government motion. He made no claim that the government acted in bad faith. How-ever, the court outlined various arguments that existed for challenging the government motion requirement. Although the opinion did not state that the court found these arguments persuasive, it presented a very detailed discussion of them. U.S. v. Agu, 949 F.2d 63 (2nd Cir. 1991).
2nd Circuit upholds failure to depart downward for substantial assistance. (712) Defendant contended that even in the absence of a government motion for a downward departure for substantial assistance under § 5K1.1, the district court was empowered to depart downward under § 5K2.0. The 2nd Circuit agreed that such a downward departure was “theoretically possible,” but the existence of § 5K1.1 demonstrates that the guidelines already consider assistance to the government. The only exception “is where the defendant offers information regarding actions he took, which could not be used by the government to prosecute other individuals (rendering 5K1.1 inapplicable), but which could be construed as a “mitigating circumstance” for purpose of § 5K2.0.” Defendant alleged that he provided information that saved the life of a confidential informant. This could have provided grounds for a downward departure under guideline § 5K2.0, but since defendant failed to raise the issue at sentencing, he could not now claim that the district court erred. U.S. v. Khan, 920 F.2d 1100 (2nd Cir. 1990).
2nd Circuit reverses downward departure even though minimally culpable offenders are not in a position to provide “substantial assistance” to the government. (712) Although it agreed with the district judge that it was “troubling” that minimally culpable offenders often do not have the quantity or quality of information to justify a substantial assistance departure under § 5K1.1, the 2nd Circuit reversed the judge’s downward departure. No motion was made by the government. Nor did the requirement of a government motion under § 5K1.1 lodge too much discretion in United States Attorneys. Although the defendant had identified a drug dealing location to the government and provided the government with information on his supplier (who had died before the information became of any use), the court found that this case did not “present the rare case that involves circumstances that were not adequately taken into consideration by the Sentencing Commission.” Despite their empathy for the judge who attempted to infuse equity into the guidelines, the court found that its “hands were tied.” U.S. v. Reina, 905 F.2d 638 (2nd Cir. 1990).
2nd Circuit holds government control of substantial assistance reduction does not violate separation of powers or due process. (712) The 2nd Circuit held that giving the government the authority to file a motion requesting a guidelines departure for substantial assistance does not violate the separation of powers doctrine. Given the government’s inherent power to decide whether to prosecute at all, the prosecution’s unique ability to determine the helpfulness of a defendant’s assistance, and the court’s ultimate responsibility and authority to determine a sentence, there is no constitutional violation. Due process is not violated even if the decision not to file such a motion is unreviewable. The court is free to consider the defendant’s cooperation when determining where to sentence the defendant within the guideline range. U.S. v. Huerta, 878 F.2d 89 (2nd Cir. 1989).
3rd Circuit says withdrawing substantial assistance motion did not breach plea agreement. (712) Defendant pled guilty to drug charges pursuant to a plea agreement in which the government agreed to file a downward departure motion at sentencing in exchange for defendant’s cooperation. However, before sentencing, defendant violated his bail conditions by failing to report to pretrial services and testing positive for illicit drugs. The violations continued, and during the execution of a bench warrant for his arrest, DEA agents seized a pill bottle containing about $4500 worth of methanphetamine and drug paraphernalia. The Third Circuit held that the government did not breach the plea agreement by withdrawing its substantial assistance motion. The agreement was based on defendant’s continued cooperation, and Paragraph 4(j) stated that “it is a condition and obligation of this cooperation agreement that the defendant not commit any additional crimes after the date of this agreement.” Defendant’s drug trafficking activities were further crimes constituting lack of cooperation under Paragraph 4(j), and this authorized the government to withdraw its motion under Paragraph 4(i). U.S. v. Schwartz, 511 F.3d 403 (3d Cir. 2008).
3rd Circuit says defendant’s assistance was considered under § 5K1.1 and thus did not warrant § 5K2.0 departure. (712) Defendant embezzled money, and invested part of the stolen funds in International Recovery Limited (IRL), which turned out to be a fruitless venture. Defendant eventually admitted his embezzlement and began assisting authorities in investigating IRL. After the FBI decided not to pursue a criminal investigation of IRL, defendant continued to assist the SEC regarding IRL for several more months. The district court denied defendant’s request for a departure under § 5K2.0, finding it had no authority to grant a substantial assistance departure in the absence of a government motion under § 5K1.1. The Third Circuit disagreed, but nonetheless agreed that a departure was unwarranted. Departures under § 5K2.0 do not require a government motion. However, while some courts have permitted departures under § 5K2.0 based on a defendant’s assistance in civil matters, defendant’s cooperation here fell within the heartland of § 5K1.1. The SEC investigation and the FBI investigation were clearly related. Had the SEC investigation uncovered criminal acts by IRL, there was no doubt those fact would have been transmitted to the FBI. A factor that fits within the heartland of a separate guideline provision cannot be the basis of a departure under § 5K2.0. U.S. v. Jones, 382 F.3d 403 (3d Cir. 2004).
3rd Circuit holds that sentencing court lacked authority to impose sentence below mandatory minimum. (712) Defendant pled guilty to possession of cocaine base with intent to distribute in excess of 50 grams of cocaine base, in violation of 21 U.S.C. § 841(a)(1), which subjected him to a 15-year mandatory minimum sentence. Although the court thought this sentence “excessive,” it found that it was compelled to impose it. The Third Circuit agreed that the district court lacked authority to sentence defendant below the mandatory minimum sentence. The panel rejected defendant’s argument that in 18 U.S.C. § 3553(a)(2), Congress explicitly precluded court from imposing sentences that plainly exceeded that which was necessary to fulfill the four delineated purposes of sentencing. Section 3553(a) sets forth a number of other factors that a sentencing court must consider when sentencing. In addition, § 3553(b) states that the court must sentence the defendant within the sentencing guideline range unless the court finds certain aggravating or mitigating circumstances not adequately considered by the Sentencing Commission. Thus, a court must refer to the purposes outlined in § 3553(a)(2) “except as otherwise specifically provided.” The mandatory minimum sentences defendant was exposed to clearly fit within the “except as otherwise specifically provided” exclusion of § 3553(a). U.S. v. Kellum, 356 F.3d 285 (3d Cir. 2004).
3rd Circuit refuses to construe PSR as obligating departure motion despite defendant’s breach. (712) Defendant’s plea agreement provided that he would fully cooperate, the government could not prosecute him for other criminal activity, and that if he provided substantial assistance, the government would move for a downward departure. The agreement further provided that if defendant committed any additional crimes, “the non-prosecution provision of this agreement shall be null and void. All other provisions of this agreement shall remain in full force and effect….” After entering the agreement but before sentencing, defendant committed two more crimes. Defendant contended that the language of the plea agreement still required the government to move for the departure, claiming that under the quoted language, the only remedy available to the government if he committed other crimes was the rescission of its promise not to prosecute him for other offenses. The Third Circuit found this interpretation absurd, since this would mean that no violation of the agreement could extinguish the government’s promise to move for the downward departure. However, the “Sentencing” section of the agreement, which discussed the § 5K1.1 motion, specifically conditioned the government’s moving for the downward departure on (1) defendant’s fully complying with the agreement, and (2) his providing substantial assistance. One of the basic requirements of the agreement was that defendant commit no more crimes. After his first arrest, the government warned defendant that if he engaged in further illegal activity it would not make the departure motion. U.S. v. Swint, 223 F.3d 249 (3d Cir. 2000).
3rd Circuit says government retained § 5K1.1 discretion even though agreement did not reserve it. (712) Defendant’s plea agreement provided that if defendant fully complied with the terms of the agreement and provided substantial assistance, the government would move for a § 5K1.1 departure. The district court interpreted the plea agreement to require the defendant to satisfy the government that he had complied with its terms and provided substantial assistance to the government. Defendant claimed that the court, not the prosecution, should determine this issue of fact on an objective basis and the government had the burden of proving that defendant did not comply with his plea agreement obligations. The Third Circuit held that the government retained its discretion under § 5K1.1 to determine whether defendant provided substantial assistance, even though the plea agreement did not contain any language expressly reserving this discretion. The agreement contemplated that any downward departure motion be made “pursuant to” 18 U.S.C. § 3553(e) and USSG § 5K1.1. Thus, the plea agreement was implicitly subject to the statute and the guidelines, and both expressly lodge the decision to make the motion with the government. Thus, the court could only review the government’s refusal to move for a departure for bad faith or an unconstitutional motive. U.S. v. Huang, 178 F.3d 184 (3d Cir. 1999).
3rd Circuit does not review failure to make § 5K1.1 motion where no allegation of impermissible motive. (712) Defendant complained that he cooperated with the government and should have received a § 5K1.1 downward departure. The government, however, found defendant to be of no help, offering only general information which was of no use. Defendant did offer information about a particular person, but that person had already been taken into custody. The Third Circuit found defendant was not entitled to a § 5K1.1 departure. It is within the government’s prosecutorial decision whether or not to seek a downward departure under § 5K1.1. Federal courts can review a prosecutor’s refusal to file a § 5K1.1 motion only if the refusal was based on bad faith or an unconstitutional motive, or if a plea agreement otherwise required the government to make the motion. Defense counsel conceded at oral argument that he did not allege that the government acted either in bad faith or with an unconstitutional motive. U.S. v. Holman, 168 F.3d 655 (3d Cir. 1999).
3rd Circuit says Koon does not permit substantial assistance departure without government motion. (712) Although defendant provided the government with a wide variety of information, the government refused to make a § 5K1.1 substantial assistance departure. Relying on In re Sealed Case, 149 F.3d 1198 (D.C. Cir. 1998), defendant argued that the district court had the authority to depart under § 5K2.0 based on a defendant’s substantial assistance, even in the absence of a government motion. The Third Circuit rejected In re Sealed Case, and held that a district court does not have the authority under § 5K2.0 to make a substantial assistance departure in the absence of a government motion. Substantial assistance to the government is taken into account in § 5K1.1, and therefore must be considered as a factor mentioned in the guidelines. In re Sealed Case found that the guidelines do not mention substantial assistance without a government motion as a sentencing factor. However, the existence of a government motion is not a sentencing factor. A sentencing factor is a relevant offense or offender characteristic. The requirement of a government motion under § 5K1.1 is a condition limiting a court’s authority to grant a defendant a substantial assistance departure. U.S. v. Abuhouran, 161 F.3d 206 (3d Cir. 1998).
3rd Circuit holds refusal to file § 5K1.1 motion did not breach plea agreement. (712) The plea agreement required defendant to provide truthful information and to testify truthfully at trial. Defendant agreed that if he gave any materially false information or testimony, his plea agreement would be void. The government agreed to file a § 5K1.1 motion if defendant fully complied with the agreement. Defendant breached the plea agreement by filing an affidavit in support of a motion to withdraw his plea in which he falsely stated that he was innocent. If the affidavit were true, his earlier trial testimony would have been perjury. The Third Circuit held that the government did not breach the plea agreement by refusing to move for a § 5K1.1 departure. The plea agreement gave the government the right to withhold the motion based on defendant’s false affidavit. Even if defendant filed the affidavit on advice of ineffective counsel, this would not excuse the lie. It was not “unfair” for the government to reap the benefits of the plea agreement (his earlier testimony) and avoid its obligation to him. U.S. v. Carrara, 49 F.3d 105 (3d Cir. 1995).
3rd Circuit will permit departure if §5K1.1 motion was withheld to penalize defendant for going to trial. (712) The 3rd Circuit held that even absent a motion by the government, a district court has authority to grant a downward departure for substantial assistance if the government’s sole motive for withholding a §5K1.1 motion was to penalize the defendant for exercising his constitutional right to a trial. Under Wade v. U.S., 112 S.Ct. 1840 (1992), any unconstitutional motive is subject to judicial review. Remand was necessary because the district court may have believed it lacked discretion to depart even if it found the government withheld a §5K1.1 motion to penalize defendant for going to trial. On remand, defendant will have the burden of proving prosecutorial vindictiveness. Since the government articulated legitimate reasons for not filing the motion, no presumption of vindictiveness will apply, and defendant must prove actual vindictiveness in order to prevail. Judge Rosenn dissented on other grounds. U.S. v. Paramo, 998 F.2d 1212 (3rd Cir. 1993).
3rd Circuit rules that district court may not make substantial assistance departure in the absence of government motion. (712) Following the Supreme Court’s decision in United States v. Wade, 60 U.S.L.W. 4389 (May 18, 1992), the 3rd Circuit affirmed that in the absence of a government motion, the district court lacked the ability to depart downward under section 5K1.1. Defendant did not allege that the government refused to file the motion for suspect reasons such as race or religion. Even if defendant’s assistance was unquestionably substantial, such a showing is neither necessary or sufficient. Similarly, defendant’s offer to provide assistance was not a proper basis for departure under section 5K2.0. U.S. v. Higgins, 967 F.2d 841 (3rd Cir. 1992).
3rd Circuit rejects due process challenge to substantial assistance provisions. (712) The 3rd Circuit rejected defendant’s claim that the substantial assistance provision of the guidelines violates due process by requiring a government motion to depart downward for substantial assistance. Eight courts of appeals have rejected the same argument. Moreover, the 3rd Circuit recently decided that Pennsylvania’s Mandatory Minimum Sentencing Act did not violate due process by giving state prosecutor’s discretion to depart below the statutory mandatory minimum sentence. The reasoning in that case was applicable here. U.S. v. Santos, 932 F.2d 244 (3rd Cir. 1991).
3rd Circuit holds that court may not depart downward for cooperation absent a government motion. (712) Defendant argued that a government motion was not needed to depart downward for cooperation because 18 U.S.C. § 3661 states that there may be “no limitation” on information a sentencing court may consider. The 3rd Circuit disagreed, relying on 18 U.S.C. § 3553(b), which forbids a departure unless the court finds an aggravating or mitigating circumstance not adequately considered by the Sentencing Commission in formulating the guidelines. The court held that information of the type encompassed in § 3661(b) must be subject to the limitations of § 3553(b). Section 3553(b) “does not authorize departure based on cooperation absent a government motion, because cooperation was considered by the Sentencing Commission, as § 5K1.1 clearly demonstrates.” U.S. v. Bruno, 897 F.2d 695 (3rd Cir. 1990).
4th Circuit holds that court could not depart below statutory minimum without § 3553(e) motion. (712) Defendant qualified as an armed career criminal under 18 U.S.C. § 924(e) and was subject to a mandatory minimum sentence of 15 years. The government made a motion under § 5K1.1 for a one-level substantial assistance departure, but did not move for a downward departure under 18 U.S.C. § 3553(e). The district court granted defendant an eight-level departure on a number of different grounds, including defendant’s substantial assistance, and sentenced defendant to 63 months. The Fourth Circuit reversed, holding that without a government motion under § 3553(e), the district court lacked authority to sentence defendant below the statutory minimum 15 years’ imprisonment. The government admitted that its motion was intended to include a § 3553(e) motion, that the parties’ course of dealing assumed that the government’s § 5K1.1 motion encompassed a motion under § 3553(e), and that “office policy” was that a motion made under § 5K1.1 included a § 3553(e) motion. However, there was no evidence in the record, other than the parties’ unsupported allegations, suggesting that the government was making a motion under § 3553(e). Absent such a motion, a sentence below the 15-year minimum was not permitted. U.S. v. Allen, 450 F.3d 565 (4th Cir. 2006).
4th Circuit finds government properly refused to make substantial assistance motion. (712) Defendant did not argue that the government’s refusal to file a motion under section 5K1.1 was based on an unconstitutional motive, but rather argued that the government’s reason “was not rationally related to a legitimate government end.” The Fourth Circuit rejected the argument, holding that the threats defendant issued to his co-defendants were in fact rationally related to the type or quality of assistance he rendered. But even if they were, the relevant inquiry under Wade v. U.S., 504 U.S. 181 (1992) is whether the government’s refusal to make a downward departure motion is rationally related to “any legitimate government end.” The panel thus rejected the Eighth Circuit’s more restrictive view in U.S. v. Anzalone, 148 F.3d 940, reh’g. en banc granted, opinion vacated, 148 F.3d 940, opinion reinstated, reh’g. en banc denied, 161 F.3d 1125 (8th Cir. 1998). Here, the panel found that the government’s interest in deterring a defendant from threatening the life of a co-defendant was not merely legitimate, it was compelling. Moreover, defendant’s allegation of disparate treatment of his co-defendants was “factually incorrect and legally irrelevant.” U.S. v. Butler, 272 F.3d 683 (4th Cir. 2001).
4th Circuit holds that plea agreement’s silence did not waive government’s § 5K1.1 discretion. (712) While defendant and others were hunting in the nearby woods, a woman was shot and killed while she stood on her property. Defendant pled guilty to being a felon in possession of a firearm. His plea agreement provided that in return for his production of his firearm and his truthful and complete cooperation with authorities, the government would move for a § 5K1.1 departure. The government refused to make the motion since defendant denied involvement in the shooting. An ATF agent testified regarding his investigation of the shooting, which implicated defendant as the shooter. The Fourth Circuit held that the district court did not clearly err in finding that defendant failed to provide “truthful and thorough cooperation.” Although the agreement did not contain the customary language explicitly reserving the government’s discretion to make or withhold a § 5K1.1 motion, the panel held that the government retained the responsibility and the discretion to evaluate whether defendant’s cooperation was truthful. A waiver of prosecutorial discretion by way of a plea agreement must be explicit. U.S. v. Snow, 234 F.3d 187 (4th Cir. 2000).
4th Circuit says departure for brother did not constitute substantial threshold showing of impropriety. (712) Although the government did not file a § 5K1.1 motion, the district court departed anyway, concluding defendant was entitled to the motion. Before a court may hold an evidentiary hearing on the government’s refusal to make a § 5K1.1 motion, the defendant must first make a “substantial threshold showing” that the refusal resulted from improper or suspect motives. Wade v. United States, 504 U.S. 181 (1992). Defendant argued only that the assistance he provided to the government was almost identical to that provided by his brother, who received a § 5K1.1 motion. The Fourth Circuit found that defendant’s proffer was insufficient to demonstrate any improper basis for the government’s decision, and at this point the district court should have ended its inquiry. The fact that the government chooses to make a § 5K1.1 motion for one brother and not the other did not constitute a substantial threshold showing of improper motive. Moreover, even if defendant had made a substantial threshold showing, the government’s decision was clearly related to a legitimate government end. Defendant’s assistance did not match that of his brother. The brother offered extensive assistance in an investigation of a corrupt state senator, and participated in 35-40 taped meetings with the senator. Defendant’s participation was limited to “telephone tag” and he never made contact with the senator. U.S. v. LeRose, 219 F.3d 335 (4th Cir. 2000).
4th Circuit rejects § 5K1.1 departure at resentencing after probation violation, absent new government motion. (712) At defendant’s original sentencing hearing in 1993, the district court departed downward pursuant to the government’s § 5K1.1 motion from a range of 46-57 months to a sentence of five years’ probation. Unbeknownst to the government, defendant had resumed his criminal activities while awaiting sentencing. The district court revoked probation and imposed a 46-month sentence in accordance with the version of 18 U.S.C. § 3565(a)(2) in effect before September 1994. The Fourth Circuit held that the district court applied the proper version of § 3565. Before the September 1994 amendment to § 3565(a)(2), a district court could not consider post-sentencing conduct as a basis for departure, and thus was required to impose a sentence within the applicable guideline range unless a ground for departure had been brought to the court’s attention during the initial sentencing hearing. After the 1994 amendment, the district court was permitted to consider post-sentencing factors as a basis for departure. In applying the pre-September 1944 version of § 3565(a)(2), the court did not err in refusing to consider a substantial assistance departure, because it was not available at resentencing absent a renewed motion by the government. U.S. v. Schaefer, 120 F.3d 505 (4th Cir. 1997).
4th Circuit says defendant’s bail jumping removed government’s obligation to move for § 5K1.1 departure. (712) Defendant’s plea agreement stated that if he provided substantial assistance, the government would move for a § 5K1.1 departure. Prior to his sentencing hearing, defendant jumped bail and fled to Honduras. He returned home to face sentencing only after learning that the government had instituted proceedings against his parents’ house. At sentencing, the government acknowledged that defendant had provided substantial assistance, but argued that defendant’s bail jumping was a breach of the plea agreement which freed it of the obligation to make a § 5K1.1 motion. The Fourth Circuit agreed. The agreement itself did not address the effect defendant’s absconding would have on the government’s obligation. However, implicit in every plea agreement is the defendant’s obligation to appear for sentencing at the time appointed by the district court. U.S. v. David, 58 F.3d 113 (4th Cir. 1995).
4th Circuit upholds “prisoners’ dilemma” offer of substantial assistance motion. (712) Defendant and a partner robbed a bank. The government told each defendant it would consider making a substantial assistance motion if the he would plead guilty and testify against the other defendant. Defendant’s partner ultimately accepted the offer, defendant did not, and the partner’s testimony helped convict defendant. Although the government did not make a § 5K1.1 motion in defendant’s case, the district court nonetheless departed downward, finding the government’s offers improper, since they reduced the decision as to which defendant would receive the motion to gamesmanship between the defendants. The other defendant’s acceptance of the offer effectively precluded defendant’s eligibility for the motion. The Fourth Circuit disagreed, finding the simultaneous “prisoners’ dilemma” type offer was rationally related to the legitimate ends of securing two convictions, expediting plea negotiations, and avoiding the expense of at least one trial. U.S. v. Maddox, 48 F.3d 791 (4th Cir. 1995).
4th Circuit finds no “substantial threshold showing” of improper motive by government. (712) Defendant argued that the government’s failure to make a motion for a substantial assistance departure was because of his race. He pointed out that in one recent case, the same U.S. Attorney’s office moved for a downward departure on behalf of several middle and upper-class white defendants convicted of comparable drug trafficking offenses. The 4th Circuit held that this allegation did not meet the “substantial threshold showing” required by Wade v. U.S., 112 S.Ct. 1840 (1992) necessary for a court to review the government’s decision. U.S. v. Wallace, 22 F.3d 84 (4th Cir. 1994).
4th Circuit says failure to move for downward departure did not breach plea agreement. (712) Defendant argued that the government’s failure to move for a substantial assistance departure violated his plea agreement. The 4th Circuit rejected this argument, since the plea agreement did not impose an obligation on the government to make such a motion. The agreement provided only that the government reserved its option to seek a departure if in its “sole discretion” it determined that defendant had provided substantial assistance. U.S. v. Wallace, 22 F.3d 84 (4th Cir. 1994).
4th Circuit finds government breached plea agreement by failing to move for substantial assistance departure. (712) Defendant’s plea agreement provided that if defendant cooperated with regard to pending investigations, and that cooperation was deemed by the government as providing substantial assistance, the government would move for a downward departure pursuant to §5K1.1. At sentencing, the government admitted that defendant’s assistance in the investigation of crimes was “substantial,” but refused to move for a departure until after he testified at two trials. The 4th Circuit ruled that defendant was entitled to specific performance of the government’s promise to move for a substantial assistance departure. The government had no right to insist on assistance in both investigation and prosecution. The plea agreement stated that the government would make the motion if it deemed defendant’s assistance substantial in the investigation “or” prosecution of another person. U.S. v. Dixon, 998 F.2d 228 (4th Cir. 1993).
4th Circuit refuses to inquire into government’s reasons for failing to bring motion for substantial assistance departure. (712) Defendant contended that the government abused its discretion in refusing to file a motion for a downward departure under guideline § 5K1.1 based upon his substantial assistance. The 4th Circuit refused to consider his claim, noting that under Circuit precedent, when a defendant is able to negotiate a plea agreement that includes the government’s agreement to file a motion for a downward departure under § 5K1.1, the defendant obtains a right to require the government to fulfill that promise. Absent such an agreement, the government alone has the right to decide, in its discretion, whether to file such a motion. Here, defendant’s agreement only required the government to bring any facts concerning defendant’s cooperation to the attention of the court at sentencing. U.S. v. Raynor, 939 F.2d 191 (4th Cir. 1991).
4th Circuit rules prosecutor is not required to explain refusal to move for substantial assistance departure. (712) The 4th Circuit held that absent a motion filed by the government, the district court has no authority to depart downward from a mandatory minimum sentence for a defendant’s substantial assistance. Moreover, the decision whether to make such a motion is a “prosecutorial tool which may be exercised in the sole discretion of the government.” Thus, a defendant may not inquire into the government’s reasons and motives for refusing to make such a motion. Neither 18 U.S.C. § 3553(e) nor 28 U.S.C. § 994(n) gives a defendant a beneficial interest that may be enforced as a right. A defendant who wishes to ensure a right should negotiate a plea agreement agreeing to provide valuable cooperation in return for the government’s commitment to file a motion for a downward departure. The defendant then has a contractual right to require the government to fulfill its promise. U.S. v. Wade, 936 F.2d 169 (4th Cir. 1991).
4th Circuit upholds refusal to depart downward for substantial assistance in absence of government motion. (712) Since the government failed to make a motion for a downward departure for defendant’s substantial assistance, the district court properly ruled that it lacked authority to make such a downward departure. However, the 4th Circuit expressed concern that the government originally dealt with an unrepresented and uncharged man. They made representations to him in order to induce him to wear a wire to gather evidence against his co-conspirators. It was unclear exactly what representations were made, but a layperson’s understanding of “doing all we can with the guidelines” might encompass a promise to move for a downward departure. The government appeared to be following “a practice of making unclear oral representations to unrepresented criminal defendants which they may misinterpret as promises upon which they can rely.” U.S. v. Sharp, 927 F.2d 170 (4th Cir. 1991).
4th Circuit holds substantial assistance departures may include grant of probation. (712) Defendant pled guilty to interstate travel to further a narcotics activity. Her adjusted offense level was 28, but the government made a motion for a substantial assistance departure, which was granted. Defendant was sentenced to 24 months imprisonment. She appealed, claiming that the trial court erred when it concluded it had no discretion to depart below 24 months because Congress thought these offenses were serious enough to warrant a prison term. The 4th Circuit vacated the sentences holding that the language of 18 U.S.C. § 3553(c) and § 5K1.1 place no limit on the district court’s authority to depart downwards for substantial assistance. If the government feels that the departure is excessive, it may appeal on the grounds of reasonableness. Thus, probation may be warranted, as the defendant claimed. The court’s jurisdiction to depart downwards to reflect substantial assistance is not limited to a finite sentence. U.S. v. Wilson, 896 F.2d 856 (4th Cir. 1990).
4th Circuit holds that motion for ‘substantial assistance’ reduction is within the prosecutor’s discretion and that the government did not abuse its discretion. (712) The 4th Circuit held that a district court has no power to depart from the guidelines for ‘substantial assistance’ unless the government first requests such a departure. The court found that § 5K1.1 was not an unconstitutional delegation of judicial power to the government. The government’s determination in this case that the downward departure was not warranted was supported by the fact that the defendant’s proffered assistance turned out to be unreliable. Additionally, § 5K1.1 does not violate due process. The court found that Congress’ vesting of the authority to request the reduction in the executive branch was not an irrational decision. U.S. v. Francois, 889 F.2d 1341 (4th Cir. 1989).
4th Circuit holds that it is not unconstitutional to require that a reduction of a sentence for substantial assistance be conditioned upon a government request. (712) The 4th Circuit held that under rule 35(b) a sentence cannot be reduced based upon the defendant’s ‘substantial assistance’ unless the government first moves the sentencing court for such a reduction. This provision is not an unconstitutional delegation to prosecutors of ‘unbridled and unreviewable discretion.’ No constitutional rights are violated by this requirement because there is no constitutional right to availability of a substantial assistance provision to reduce a criminal sentence. U.S. v. Francois, 889 F.2d 1341 (4th Cir. 1989).
5th Circuit allows consideration of defendant’s cooperation under § 3553(a), despite lack of § 5K1.1 motion. (712) Defendant pled guilty to child pornography charges. At sentencing, he urged the district court to consider his cooperation with authorities when considering the factors in 18 U.S.C. § 3553(a)(2). The district court acknowledged his efforts, but found it could not consider his cooperation because the government had not filed a § 5K1.1 motion. The Fifth Circuit held that a sentencing court has the power to consider a defendant’s cooperation under § 3553(a), regardless of whether the government files a § 5K1.1 motion. The court’s failure to recognize its discretion to consider defendant’s cooperation under § 3553(a)(1) was a significant procedural error. The court here was quite explicit in rejecting its authority to consider defendant’s cooperation, so the error was not harmless. The court never addressed or weighed defendant’s cooperation in its conditional statements about what it might have done. U.S. v. Robinson, 741 F.3d 588 (5th Cir. 2014).
5th Circuit upholds government’s refusal to move for substantial assistance departure. (712) Pursuant to a plea agreement, defendant pled guilty to methamphetamine charges, and was sentenced to a mandatory minimum sentence of 120 months under 21 U.S.C. § 841(b)(1)(A)(viii). He argued that the government breached the plea agreement by failing to file a § 5K1.1 motion for a substantial assistance departure. The plea agreement expressly provided that the government retained the discretion to decide whether to file the motion. Nonetheless, defendant contended that the plea agreement was in large part induced by the discussions between the government and defense counsel regarding the possibility of moving for a downward departure. The Fifth Circuit held that the government did not breach the plea agreement by failing to move for the § 5K1.1 departure. Counsel’s only discussion of downward departure at the plea hearing involved the safety valve guideline. U.S. v. Barnes, 730 F.3d 456 (5th Cir. 2013).
5th Circuit reconsiders and says no substantial assistance departures without government motion. (712) Before defendant’s sentencing, the government said it would not move for a substantial assistance departure. The court purported to make a five-level downward departure under § 5C1.2, stating that it appeared defendant provided substantial assistance. The Fifth Circuit held that § 5C1.2 was not applicable to defendant because his guideline range was higher than the applicable mandatory minimum sentence. In addition, the Fifth Circuit vacated its earlier opinion at 161 F.3d 281 (5th Cir. 1998), which held that a district court can depart under § 5K2.0 based on a defendant’s substantial assistance, even in the absence of a government motion. Instead, the court held that a district court has no more authority to depart for substantial assistance under § 5K2.0 than it has under § 5K1.1. The court was persuaded by the Third Circuit’s opinion in U.S. v. Abuhouran, 161 F.3d 206 (3d Cir. 1998) that a court may only depart under § 5K2.0 based on substantial assistance in those cases where § 5K1.1 permits a departure without a government motion — where the government has improperly refused to make a motion, either because it has an unconstitutional motive or because it has acted in bad faith. U.S. v. Solis, 169 F.3d 224 (5th Cir. 1999).
5th Circuit finds plea involuntary where court said it could depart even without 5K1.1 motion. (712) Defendant pled guilty to cocaine charges. In the plea agreement, the government reserved its discretion not to move for a § 5K1.1 departure. However, at the time of the plea, the district court assured defendant that it would compel the government to fulfill its side of the bargain if defendant complied with the terms of the plea agreement. The government did not refute the court’s assertion that it could sentence as if a § 5K1.1 motion had been filed. At sentencing, the government refused to make a § 5K1.1 motion and the district court did not depart downward. The Fifth Circuit held that defendant’s guilty plea was not knowing and voluntary because the district court misstated the consequences of the plea. Absent allegations of unconstitutional motive, the district court could not even address the issue of defendant’s substantial assistance, much less grant a downward departure on that basis without a § 5K1.1 motion. U.S. v. Amaya, 111 F.3d 386 (5th Cir. 1997).
5th Circuit says refusal to make § 5K1.1 motion did not breach plea agreement. (712) Defendant’s plea agreement required him to give a complete and truthful statement about his knowledge of criminal activities, and if he provided substantial assistance the government could file a § 5K1.1 motion. Prior to arraignment, defendant was interviewed by an IRS agent for about 15 minutes. The government refused to file a § 5K1.1 motion claiming that although defendant’s statements were truthful, they did not rise to the level of substantial assistance. The Fifth Circuit held that the government did not breach the plea agreement by refusing to move for a substantial assistance departure. The plea agreement stated that the government retained “sole discretion” over the decision as to whether or not to submit a motion. In such a situation, a refusal to make a § 5K1.1 motion is reviewable only for an unconstitutional motive. The government here debriefed defendant and advised the court of his cooperation. Defendant was sentenced at the bottom of the guideline range. He did not allege that the government’s refusal was based on an unconstitutional motive. U.S. v. Price, 95 F.3d 364 (5th Cir. 1996).
5th Circuit upholds refusal to make § 5K1.1 motion in absence of improper motive. (712) Defendant’s plea agreement provided that the government “reserve[d] its option” to seek a § 5K1.1 departure from the guidelines “if, in its sole discretion” it determined that such a departure was appropriate. Defendant argued that the government negotiated the plea agreement in bad faith because it never intended to file a § 5K1.1 motion, and it breached the agreement by refusing to file the motion. The Fifth Circuit upheld the government’s refusal to make the § 5K1.1 motion since no unconstitutional motive was alleged. Where, as here, the government retains sole discretion to file the motion, its refusal to file is reviewable only for unconstitutional motives such as race or religion of the accused. The government’s retention of sole discretion did not violate due process. U.S. v. Aderholt, 87 F.3d 740 (5th Cir. 1996).
5th Circuit finds plea agreement did not require government to ask for departure from mandatory minimum. (712) Under defendant’s plea agreement, the government agreed to recommend a sentence within the lowest 25% of the “applicable guideline range.” Defendant’s sentencing range would have been 51 63 months, but he was subject to a 60 month mandatory minimum. Defendant argued that his plea agreement required the district court to request a § 5K1.1 downward departure from the mandatory minimum sentence. The government argued that it fulfilled the plea bargain by requesting a 60 month sentence. The Fifth Circuit held that even if the “applicable guideline range” was construed as 51 63 months, there was no basis for reversal, since the error would not have affected a substantial right. A downward departure from a mandatory minimum is only appropriate for the purpose of reflecting a defendant’s substantial assistance. Defendant provided no assistance to the government. Cerverizzo v. U.S., 74 F.3d 629 (5th Cir. 1996).
5th Circuit refuses to examine government’s failure to move for substantial assistance departure. (712) Defendant argued that his cooperation merited a substantial assistance motion by the government. The 5th Circuit held that defendant’s claim was foreclosed by Wade v. U.S., 112 S.Ct. 1840 (1992). A district court may review the government’s refusal to file a substantial assistance motion if it finds that the refusal was based on an unconstitutional motive. Defendant did not make such a claim. U.S. v. Jackson, 22 F.3d 583 (5th Cir. 1994).
5th Circuit remands to determine parties’ interpretation of substantial assistance. (712) Defendant’s plea agreement stated that if defendant provided substantial assistance, the government “may” make a motion for a downward departure at sentencing. The 5th Circuit remanded because the district court found that defendant had not rendered substantial assistance without making any determinations as to the reasonable expectations of either defendant or the government. The government stated that defendant should provide truthful information and testimony if necessary. However, the government never asked defendant to testify and never verified if the information he provided was truthful. Moreover, the record did not show how much discretion the government retained to make the substantial assistance motion. Given the government’s candid concessions in oral argument, it could no longer insist that defendant intentionally entered into an illusory “bargain” which gave the government unfettered discretion to refuse to make the motion. U.S. v. Hernandez, 17 F.3d 78 (5th Cir. 1994).
5th Circuit rules that court has authority under §5K1.1 to depart below mandatory minimum. (712) The 5th Circuit held that a court may depart below a mandatory minimum sentence regardless of whether a government’s departure motion is made under either §5K1.1 or §3553(e). §5K1.1 governs all substantial assistance departures, and its scope includes departures from mandatory minimum sentences permitted by 18 U.S.C. §3553(e). U.S. v. Hernandez, 17 F.2d 78 (5th Cir. 1994).
5th Circuit remands to determine whether defendant provided substantial assistance. (712) Defendant argued that a letter provided by a Justice Department trial attorney demonstrated that defendant had provided substantial assistance, thereby obligating the government under the plea agreement to file a motion for a downward departure. The 5th Circuit remanded. The district court had concluded, without making any determination as to the reasonable expectations of the parties, that defendant’s assistance was not substantial. The record was silent as to what the parties believed would constitute substantial assistance. The court also did not address defendant’s claim that government investigators failed to follow up on information he provided and fully debrief him. If on remand the district court determined that defendant did provide substantial assistance, then it must determine whether the plea agreement obligated the government to move for a downward departure. U.S. v. Wilder, 15 F.3d 1292 (5th Cir. 1994).
5th Circuit says failure to make substantial assistance motion did not violate plea agreement. (712) The 5th Circuit rejected defendant’s claim that the government’s failure to move for a substantial assistance departure violated his plea agreement. The agreement expressly provided that the government retained absolute discretion to move for the section 5K1.1 departure. The prosecutor’s statements at rearraignment did not amend the plea agreement to reduce the government’s discretion to move for the departure. Although the prosecutor referred to the government’s willingness to file a section 5K1.1 motion, the prosecutor agreed to make such a motion in accordance with the plea agreement. There was no indication that the government intended to relinquish the discretion it had expressly reserved in the plea agreement. U.S. v. Garcia-Bonilla, 11 F.3d 45 (5th Cir. 1993).
5th Circuit finds government did not prevent defendant from providing substantial assistance through debriefing interview. (712) Defendant argued that the government violated his plea agreement by failing to allow him the opportunity to provide substantial assistance through a debriefing interview. The 5th Circuit rejected the claim, finding the record reflected that defendant was debriefed. Defendant’s written objection to the PSR acknowledged that he was completely debriefed, and at the sentencing hearing, defendant’s former counsel made several references to the debriefing. Moreover, defendant’s former counsel implicitly agreed that it would be appropriate for the government to seek a reduction under Rule 35 if defendant provided substantial assistance after sentencing. Defendant later received a 60-month reduction in his sentence. Having so acquiesced, defendant could not now contend that the government violated the plea agreement. U.S. v. Palomo, 998 F.2d 253 (5th Cir. 1993).
5th Circuit remands to decide if government breached obligation to file 5K1.1 motion. (712) Defendant’s plea agreement provided that if he fully cooperated, the government would move for a downward departure under section 5K1.1. At sentencing, the government offered no evidence to refute defendant’s claim that he fully cooperated with the government. The district court made no finding as to whether the government breached the agreement. The 5th Circuit remanded for a ruling on this question. Generally, the prosecutor’s power to make or withhold a section 5K1.1 motion is a form of prosecutorial discretion which is not reviewable for arbitrariness. However, if a prosecutor breaches a promise to make a section 5K1.1 motion, a different rule applies. If the promise was material to the guilty plea, the court must allow the defendant to withdraw the plea and start over. Here, the district court had the authority to determine whether defendant satisfied the terms of his plea agreement, and to enforce the agreement if he did. U.S. v. Watson, 988 F.2d 544 (5th Cir. 1993).
5th Circuit says defendant’s ongoing criminal conduct justifies refusal to make 5K1.1 motion. (712) Defendant’s plea agreement provided that he would cooperate and that if he complied with section 5K1.1, the government would move for a downward departure. Although defendant cooperated, the government refused to make the motion after discovering that defendant’s failed to disclose his involvement in ongoing drug activities in Florida. The 5th Circuit rejected defendant’s claim that the government breached his plea agreement. By concealing information about his participation in ongoing drug activities, defendant failed to satisfy the “substantial assistance” and “truthful” information conditions of his plea agreement. This relieved the government of its obligation to make a section 5K1.1 motion. The fact that defendant was acquitted of charges relating to the Florida investigation did not change the analysis, since defendant bore the burden of proving that the government breached the plea agreement. U.S. v. Watson, 988 F.2d 544 (5th Cir. 1993).
5th Circuit reverses substantial assistance departure made without government motion. (712) The district court departed downward because (a) the guidelines did not adequately consider the minimal nature of defendant’s past offenses, (b) the guidelines did not adequately reflect defendant’s lack of culpability, and (c) defendant had substantially cooperated with the government. The government had not made a motion under section 5K1.1 for a substantial assistance departure. The 5th Circuit vacated and remanded for resentencing in light of Wade v. U.S., 112 S.Ct. 1840 (1992). Wade made it clear that absent a section 5K1.1 motion from the government, a downward departure for substantial assistance is not proper. Although reasons (a) and (b) were arguably within the district court’s discretion, reason (c) was an invalid departure factor. U.S. v. Sellers, 975 F.2d 149 (5th Cir. 1992).
5th Circuit upholds refusal to hold hearing to consider substantial assistance departure. (712) Defendant appealed the district court’s refusal to hold an evidentiary hearing to examine the extent of defendant’s assistance to the government under section 5K1.1. The 5th Circuit, affirmed, following the decision in Wade v. U.S., 112 S.Ct. 1840 (1992). Under Wade, the government’s decision not to file a motion for a substantial assistance departure may be reviewed only if the refusal was based on an unconstitutional motive such as race or religion. Absent a “substantial threshold showing” of such an improper motive, courts lack authority to scrutinize the level of the defendant’s cooperation. This limited review forecloses the need for an evidentiary hearing solely to document the defendant’s assistance. Here, defendant did not allege an illicit motivation underlying the government’s refusal to request a section 5K1.1 departure, and thus, no evidentiary hearing was warranted. U.S. v. Urbani, 967 F.2d 106 (5th Cir. 1992).
5th Circuit rules that government must move for downward departure if defendant relied upon government promise. (712) Government counsel sent defense counsel a proposed plea agreement with a transmittal letter stating: “In addition, I will recommend departure to the court based upon your client’s full and complete debriefing and substantial assistance to the government in resolving this case as outlined above.” The plea agreement was silent on this matter, but did contain a provision that stated that it was the entire agreement between the parties. Defendant contended that the government’s failure to move for a departure was a breach of the plea agreement. The 5th Circuit remanded for the district court to determine whether defendant, in reliance on the government’s representation, accepted the government’s offer and did all that he was capable of doing under the circumstances. If defendant performed his obligation, or was ready to perform his obligation but was unable to do so because the government had no further need or opted not to use him, then the government was obliged to move for the downward departure. The district court could then enter whatever sentence it deemed appropriate. U.S. v. Melton, 930 F.2d 1096 (5th Cir. 1991).
5th Circuit upholds requirement of government motion for substantial assistance departure against due process challenge. (712) Defendant contended that guideline § 5K1.1’s requirement of a government motion before a judge may depart downward for substantial assistance limits the judge’s discretion in a way that violates due process. The 5th Circuit rejected the argument noting that it has been rejected by every circuit that has considered it. Because defendants have no constitutional right to a “substantial assistance” departure provision in the guidelines, a government motion requirement does not unconstitutionally limit the discretion of the sentencing judge. U.S. v. Harrison, 918 F.2d 30 (5th Cir. 1990).
5th Circuit repeats that court may depart downward for substantial assistance even without a government motion. (712) Relying on its opinion in U.S. v. White, 869 F.2d 822, 828-29 (5th Cir. 1989), the 5th Circuit reiterated that the absence of a government motion “does not preclude a district court from entertaining a defendant’s showing that the government is refusing to recognize such substantial assistance.” In this case, however, “the district court had absolutely no evidence on which it could evaluate the extent of [defendant’s] assistance to the government.” The denial of the defendant’s motion was not clearly erroneous. U.S. v. Paden, 908 F.2d 1229 (5th Cir. 1990).
6th Circuit says error in identifying basis for sentence below mandatory minimum was harmless. (712) Defendant pleaded guilty to conspiracy to manufacture marijuana, an offense carrying a 120-month minimum sentence. At sentencing, the government moved under 18 U.S.C. § 3553(e) and § 5K1.1 for a reduction in sentence based on defendant’s substantial assistance. The district court noted that it could not impose a sentence below the mandatory minimum without a government motion under § 5K1.1 because a sentence below the mandatory minimum would also be below the Guideline range. It then imposed a sentence of 87 months. On appeal, defendant argued that the district court improperly concluded that it could not sentence below the mandatory minimum without a § 5K1.1 motion. The Sixth Circuit agreed, holding that a motion under § 3553(e) gives the district court the authority to impose a sentence below the statutory minimum and the Guideline range. The court held, however, that the error was harmless because defendant received a sentence below the 120-month statutory minimum. U.S. v. Gabbard, 586 F.3d 1046 (6th Cir. 2009).
6th Circuit says government did not prove defendants breached agreement. (712) Defendants’ plea agreement required the government to file a downward departure motion if, in the sole discretion of the government, defendants provided substantial assistance in the prosecution or investigation of other suspects. Both defendants provided the government with some assistance. However, after both men were seen smoking a marijuana joint in jail, the government refused to file the motions, claiming that defendants had lost their usefulness as trial witnesses. However, this showed only that the government determined that defendants had not substantially assisted the prosecution of other suspects. The government did not address whether defendants had provided substantial assistance during the investigation of other suspects, and it had no proof that it in fact decided that defendants did not provide such assistance. While the government might have inadvertently failed to determine whether defendants provided substantial assistance during the investigation of other suspects, an inadvertent failure to perform obligations under a plea agreement is nonetheless a breach. The Sixth Circuit ruled that the government failed to meet its burden of proving defendants’ breaches before declining to honor its obligations under the agreement. Absent this proof, the government was bound by the plea agreement and was required to file downward departure motions, and its failure to do so breached the agreement. U.S. v. Lukse, 286 F.3d 906 (6th Cir. 2002).
6th Circuit upholds refusal to hold evidentiary hearing for bad faith claim. (712) Defendant argued that the government’s refusal to file a § 5K1.1 motion for a downward departure was not made in good faith. He contended that he satisfied his obligations under the plea agreement and the appellate court should remand to the district court to conduct an evidentiary hearing to determine whether the government was acting in bad faith. Defendant did not argue that the government had an unconstitutional motive for failing to move for a departure. However, in the Sixth Circuit, it is well-settled that “absent a condition in the plea agreement that binds the government to move for a downward departure, [a defendant] is confined to arguing under Wade that the government failed to move for constitutionally impermissible reasons (such as race or religion).” U.S. v. Williams, 176 F.3d 301 (6th Cir. 1999). Although other circuits have held that it is appropriate to review for bad faith the government’s failure to file a § 5K1.1 motion, this is not the law of the 6th Circuit. Therefore, the Sixth Circuit ruled that the district court acted appropriately when it denied defendant’s request for an evidentiary hearing. U.S. v. Rashid, 274 F.3d 407 (6th Cir. 2001).
6th Circuit suggests en banc review of whether refusal to make § 5K1.1 motion can be reviewed for bad faith. (712) Under 6th Circuit law, the government’s refusal to file a § 5K1.1 motion may only be reviewed for an unconstitutional motive. See U.S. v. Moore, 225 F.3d 637 (6th Cir. 2000). Because defendant argued that the government’s refusal violated due process and/or was not rationally related to any legitimate government purpose, the Sixth Circuit ruled that the district court properly refused to consider the claim. However, the panel stated that it believed that the law in the 6th Circuit is an incorrect interpretation of Wade v. U.S., 504 U.S. 181 (1992), and suggested that an en banc review. In addition to holding that a defendant must show unconstitutional motive in order to obtain review of the government’s refusal to file a § 5K1.1 motion, Wade also said that the defendant “would be entitled to relief if the prosecutor’s refusal to move was not rationally related to any legitimate Government end.” Other Circuits have held, post-Wade, that the government has an obligation to exercise its discretion in “good faith.” The panel suggested that the government’s actions here were not rationally related to any legitimate end and/or were in bad faith. The government admitted that defendant did absolutely everything required of him under the plea agreement. The fact that by the time of trial the government was able to locate other witnesses besides defendant should not relieve it from filing a § 5K1.1 motion. U.S. v. Hawkins, 274 F.3d 420 (6th Cir. 2001).
6th Circuit says court properly refused to depart under § 5K1.1 where no government motion. (712) Defendant argued that the district court should have departed downward based on his “earnest efforts to cooperate with authorities.” However, the government did not file a motion under § 5K1.1 for a substantial assistance departure, and there was not an express agreement between the government and defendant to file such a motion. Thus, the Sixth Circuit ruled that the district court properly denied defendant’s request for a downward departure under § 5K1.1. In addition, the district court’s decision not to depart under § 5K2.0 was not reviewable on appeal. U.S. v. Harris, 237 F.3d 585 (6th Cir. 2001).
6th Circuit rejects another Singleton challenge to use of testimony obtained from witness promised leniency. (712) Citing U.S. v. Singleton, 144 F.3d 1343 (10th Cir. 1998), on rehearing, 165 F.3d 1297 (10th Cir. 1999), defendant argued that the district court erred in admitting testimony procured by prosecutors in exchange for sentencing reductions, in violation of the federal anti-bribery statute, 18 U.S.C. § 201(c). However, Singleton was reversed by the Tenth Circuit en banc, and was explicitly rejected by the Sixth Circuit in U.S. v. Ware, 161 F.3d 414 (6th Cir. 1998). The Ware court held that the word “Whoever” in § 201(c)(2) does not apply to the government, and that the statute does not preclude a prosecutor from offering a cooperating defendant leniency in exchange for truthful testimony against another individual. Therefore, the Sixth Circuit refused in this case to disturb a challenged conviction on the ground that it was obtained with testimony solicited by the government in exchange for promises of leniency at sentencing. U.S. v. Randolph, 230 F.3d 243 (6th Cir. 2000).
6th Circuit reaffirms that government motion is necessary for substantial assistance departure. (712) In U.S. v. Coleman, 188 F.3d 354 (6th Cir. 1999) (en banc), the Sixth Circuit stated that the “only factors” a district court is precluded from considering in assessing a downward departure motion are “race, sex, national origin, creed, religion, and socio-economic status, … lack of guidance as a youth, … drug or alcohol dependency, … and economic hardship.” Based on this language, defendant argued that the district court erred in concluding that it did not have the authority to grant a substantial assistance departure without a government motion. The Sixth Circuit held that this dicta did not overrule long-standing circuit precedent holding that a court may not consider a substantial assistance without a government motion. See U.S. v. Benjamin, 138 F.3d 1069 (6th Cir. 1998). Moreover, the Supreme Court has ruled that a district court may only consider a substantial assistance departure upon government motion. See Wade v. United States, 504 U.S. 181 (1992). U.S. v. Moore, 225 F.3d 637 (6th Cir. 2000).
6th Circuit says court may only review refusal to depart for unconstitutional motives. (712) The district court ruled that it could only review the government’s refusal to make a § 5K1.1 motion when the defendant asserts an unconstitutional motive. Defendant argued that a court may review the government’s refusal for both unconstitutional motive and bad faith. The Sixth Circuit found that under circuit precedent, when a plea agreement allocates complete discretion to the government to consider whether a substantial assistance motion should be filed, a court may only review the government’s decision for unconstitutional motives. See U.S. v. Benjamin, 138 F.3d 1069 (6th Cir. 1998). Because defendant’s agreement explicitly granted the government “complete discretion” to determine whether it should move for a substantial assistance departure, the court could review the government’s refusal only for unconstitutional motives. Defendant did not allege any impermissible motive, and thus, the district court properly denied his motion. U.S. v. Moore, 225 F.3d 637 (6th Cir. 2000).
6th Circuit says “probable cause” that defendant breached agreement did not relieve government of § 5K1.1 obligation. (712) The plea agreement said the government would move for a substantial assistance departure, but if defendant committed any crimes while he was cooperating, or otherwise violated the agreement, the government would not be bound by its promise. At sentencing, the government refused to make a § 5K1.1 motion because it believed that defendant had been involved in a homicide. The district court did not require the government to make the § 5K1.1 motion, finding that the government had probable cause to believe that defendant had breached the plea agreement by committing a crime. The Sixth Circuit held that the judge erred in allowing the government to decline to make a § 5K1.1 motion simply because it had “probable cause” to believe that defendant breached the plea agreement. The government must establish the defendant’s breach by a preponderance of the evidence. The district court here found that while the government had “at least probable cause” to believe that defendant breached the plea agreement, this did not rise to a preponderance of the evidence. U.S. v. Benjamin, 138 F.3d 1069 (6th Cir. 1998).
6th Circuit holds that plea agreement did not require substantial assistance motion. (712) Defendant argued that his plea agreement required the government to move for a § 5K1.1 departure. The Sixth Circuit disagreed, since the agreement stated that the government retained complete discretion both in determining whether a § 5K1.1 motion was warranted and in determining the extent of any departure requested. U.S. v. Epley, 52 F.3d 571 (6th Cir. 1995).
6th Circuit refuses to review government’s decision not to move for substantial assistance departure. (712) Defendant’s plea agreement provided that the government would move for a substantial assistance departure, “if warranted,” but that the decision to file the § 5K1.1 motion rested solely in the government’s discretion. At sentencing, the government declined to make such a motion, although it acknowledged that defendant had cooperated with the government. The Sixth Circuit refused to review the government’s refusal to move for a substantial assistance departure. The burden is on the defendant to prove that the government’s decision was the result of a constitutionally suspect motivation. Here, there was absolutely no showing that the government was motivated by unconstitutional considerations. U.S. v. Johnson, 46 F.3d 19 (6th Cir 1995).
6th Circuit finds no ineffective assistance in failing to advise that substantial assistance departure was at government’s discretion. (712) Defendant claimed that his counsel’s failure to advise him that the government was under no obligation to request a substantial assistance departure was ineffective assistance, rendering his guilty plea involuntary. The 6th Circuit found that even if counsel had failed to so advise him, it did not constitute ineffective assistance. Defendant failed to meet the “competence” prong of Strickland — there was no showing that counsel’s performance was not competent. He also did not meet the “prejudice” prong — there was no indication that had he known more, he would not have pled guilty. Al-though it would have been better if defendant had been specifically told that any motion for a downward reduction was at the government’s discretion, it could not be said that the failure to do so amounted to ineffective assistance. Sullivan v. U.S., 11 F.3d 573 (6th Cir. 1993).
6th Circuit upholds government’s refusal to move for departure absent allegation of improper motives. (712) In a motion to vacate under 28 U.S.C. section 2255, petitioner argued that the government breached his plea agreement by failing to request a downward departure based on his substantial assistance. The 6th Circuit upheld the denial of petitioner’s request for relief. He failed to identify any unconstitutional motive for the government’s refusal to make the motion. He also did not assert that the government was specifically required, as part of its plea bargain, to make the motion. The government’s stated reason for refusing to make the motion in the district court (defendant’s information did not amount to “substantial assistance”) was a rational and acceptable reason for the government to refuse to request a departure. Sullivan v. U.S., 11 F.3d 573 (6th Cir. 1993).
6th Circuit refuses to require hearing to determine why government did not move for §5K1.1 departure. (712) Defendant’s plea agreement provided that the government would move for a departure under section 5K1.1 if it determined that he had substantially assisted the government. At sentencing, however, the government informed the court that it did not intend to file such a motion, and did not state why. The 6th Circuit upheld the district court’s refusal to hold a hearing to examine why the government re-fused to make the motion. Under Wade v. U.S., 112 S.Ct. 1849 (1992), a defendant has a right to a hearing only if he makes a substantial threshold showing of an unconstitutional motive. Defendant made no such showing, arguing only that he had provided substantial assistance. U.S. v. Bagnoli, 7 F.3d 90 (6th Cir. 1993).
6th Circuit declines to consider failure to depart from mandatory sentence where government did not make motion. (712) In U.S. v. Dumas, 921 F.2d 650 (6th Cir. 1990), the 6th Circuit upheld the district court’s refusal to depart downward from defendant’s mandatory sentence under 18 U.S.C. § 924(c). It found that 18 U.S.C. § 3553(e) and guideline § 5K1.1 only authorize departures from statutory minimum sentences, not statutory mandatory sentences. Section 924(c) creates a mandatory sentence. On the government’s petition for rehearing, the Sixth Circuit amended the opinion to reflect that it need not consider defendant’s argument concerning the district court’s failure to depart, since the government did not ask the district court to depart downward on the § 924(c) conviction. U.S. v. Dumas, 934 F.2d 1387 (6th Cir. 1990), amended, U.S. v. Reed, 934 F.2d 1339 (6th Cir. 1991).
6th Circuit upholds mandatory minimum sentence against due process challenge. (712) Defendant contended that the mandatory minimum sentences required by 21 U.S.C. § 841(b)(1)(B)(iii) violate due process because 18 U.S.C. § 3553(e) allows a court to sentence below the mandatory minimum only upon motion of the government for substantial assistance. The 6th Circuit, following its recent decision in U.S. v. Levy, 904 F.2d 1026 (6th Cir. 1990), rejected this contention. Defendant argued that Levy did not control because it dealt with guideline § 5K1.1. However, this guideline was promulgated in response to 18 U.S.C. § 3553, and the guideline and parent statute are “substantively identical” for purposes of defendant’s claim. The government’s power to move for a downward departure is based on the reasonable assumption that the government is in the best position to advise the court of the extent of defendant’s assistance. U.S. v. Gardner, 931 F.2d 1097 (6th Cir. 1991).
6th Circuit upholds requirement of government motion for substantial assistance departure. (712) Defendant argued that guideline § 5K1.1 should not be read to require a government motion in order for the court to make a downward departure for substantial assistance. He also argued that if a motion was required, the provision was unconstitutional. The 6th Circuit rejected both arguments summarily, noting that it previously resolved these issues in U.S. v. Levy, 904 F.2d 1026 (6th Cir. 1990). U.S. v. Dumas, 934 F.2d 1387 (6th Cir. 1990), amended, U.S. v. Reed, 934 F.2d 1339 (6th Cir. 1991).
6th Circuit upholds refusal to consider downward departure for cooperation in absence of government motion. (712) At sentencing, the defendant argued that he was entitled to a downward departure under § 5K1.1 because he had cooperated. The district court refused to entertain his offer of proof. The 6th Circuit affirmed, holding that in the absence of a government motion, the district court had no duty to consider granting him a downward departure. U.S. v. Levy, 904 F.2d 1026 (6th Cir. 1990).
6th Circuit rejects claim that “substantial assistance” section violated due process or Eighth Amendment. (712) Defendant argued that § 5K1.1 violated his right to due process and freedom from cruel and unusual punishment because it does not provide defendants with the opportunity to present proof of cooperation and seek a downward departure in the absence of a government motion. The 6th Circuit rejected these arguments, agreeing with six other circuits which have considered the issues. U.S. v. Levy, 904 F.2d 1026 (6th Cir. 1990).
7th Circuit holds that defendant who stopped cooperating was not entitled to § 5K1.1 motion. (712) Defendant argued that his sentence should be vacated because the government failed to make a § 5K1.1 motion as it agreed to do in his plea agreement if defendant cooperated fully in this and other investigations. While defendant conceded that his cooperation stopped shortly after his co-defendants’ trial, he claimed he was nonetheless entitled to the benefit from his earlier assistance. The Seventh Circuit held that defendant was not entitled to the § 5K1.1 because he did not comply with the terms of his plea agreement. The agreement stated that defendant must “willfully and truthfully cooperate with the government in any matter in which he is called upon to cooperate.” Further, defendant was required to “cooperate fully and truthfully in identifying and forfeiting tainted assets subject to forfeiture, regardless where they may have been transferred or hidden.” By failing to provide full cooperation, defendant violated the terms of the plea agreement and relieved the government of its obligation to move for a downward departure. U.S. v. Sowemimo, 335 F.3d 567 (7th Cir. 2003).
7th Circuit says defendant breached agreement by indicating his willingness to commit perjury. (712) Defendant pled guilty under an agreement in which he agreed to provide complete and truthful information and testimony. However, during a debriefing, the government found defendant uncooperative and troublesome. Defendant then wrote a letter to the government, saying that “whatever you want me to say on the stan[d], just tell me sir and I will do it.” The government them moved to withdraw from the plea agreement, claiming that defendant had breached it because his letter revealed his willingness to commit perjury. Defendant argued on appeal that he should not have been sentenced without the substantial assistance motion. The Seventh Circuit held that the government was justified in refusing to make the substantial assistance motion. Defendant seriously undermined his value as a witness by writing that he would testify to whatever the government wanted him to say. U.S. v. Dumes, 313 F.3d 372 (7th Cir. 2002).
7th Circuit finds no error in failure to enforce government’s alleged promise of leniency. (712) Defendant’s wife testified that one agent promised leniency for defendant if he cooperated with law enforcement. She also testified that the other agent promised a sentence of one to three years in a state facility in exchange for defendant’s cooperation. When federal prosecutors later offered defendant a plea agreement, his wife advised him to reject it because it did not meet the terms of the agreement she alleged she reached with the two agents. After initially going to trial, defendant decided to plead guilty, and was sentenced to 188 months’ imprisonment. The court found that there was no contract or agreement between defendant and the government, and that there was simply a misunderstanding between defendant, his wife, and law enforcement officers. The Seventh Circuit found no error. Defendant argued, in essence, that he provided substantial assistance and the government breached its agreement to move for a departure on the basis of that assistance. However, the district court found as a factual matter that there was no such agreement and that defendant had not assisted the government in any significant way. The court lacked authority to depart on the basis of substantial assistance absent a motion from the government. U.S. v. Bosque, 312 F.3d 313 (7th Cir. 2002).
7th Circuit directs court to explain how defendant breached plea agreement. (712) The government refused to file the § 5K1.1 motion because during the trial of co-conspirators, defendant lied on the stand regarding his deal with the government. The government argued that this lie constituted a material breach of the plea agreement and therefore it was relieved of any obligation to file the motion. The district court denied the motion. The Seventh Circuit ruled that the district court provided insufficient findings of fact to support its finding that defendant substantially breached the plea agreement. The government cannot unilaterally determine that the defendant has breached the plea agreement and refuse to uphold its end of the bargain. An evidentiary hearing is required for the court to determine if a substantial breach of the plea agreement has occurred. In this case, the judge simply stated that “there was no doubt in his mind that [defendant] did not live up to his end of the bargain.” The court did not elaborate or provide sufficient findings for its reasoning. On remand, the court must give a more complete explanation of what facts the court found that led to its conclusion that defendant “did not live up to his end of the bargain.” U.S. v. Frazier, 213 F.3d 409 (7th Cir. 2000).
7th Circuit holds that government’s refusal to file § 5K1.1 motion did not breach plea agreement. (712) The government promised as part of defendant’s plea agreement, that it would, in its sole discretion, determine whether defendant’s alleged cooperation amounted to substantial assistance. The government then refused to file a § 5K1.1 motion, finding defendant’s cooperation did not qualify as substantial assistance because although he cooperated in his own case, he failed to assist the government in any of the other related federal cases. The Seventh Circuit held that the government did not breach the plea agreement when it determined that defendant did not provide substantial assistance. Given the wealth of information the government had against defendant, his cooperation in his own case “was no more than frosting on the cake” and was not substantial assistance. U.S. v. Jones, 209 F.3d 991 (7th Cir. 2000).
7th Circuit says plea agreement entitled defendant to evidentiary hearing on whether he fully cooperated. (712) Defendant’s plea agreement provided that the government would move for a substantial assistance departure if defendant gave his “full and truthful cooperation” to the government. The government refused to move for a departure, claiming that defendant had failed to meet his obligation to provide “full and truthful cooperation.” Defendant disputed this claim, contending that the government breached the plea agreement. The district court refused to review the matter, ruling that the government’s refusal to move for a downward departure was within its prosecutorial discretion. The Seventh Circuit held that the plea agreement entitled defendant to a hearing on whether he had provided full and truthful cooperation. The government limited its discretion by entering into the plea agreement. Although a defendant’s breach of the agreement may excuse the government from its obligations, the government cannot unilaterally determine that a defendant has breached a plea agreement. When the prosecution seeks to escape an obligation under a plea agreement on the grounds that the defendant has failed to meet some precondition, the defendant is entitled to an evidentiary hearing. U.S. v. Lezine, 166 F.3d 895 (7th Cir. 1999).
7th Circuit rules that defendant’s breach relieved government of obligation to move for departure. (712) Defendant’s plea agreement provided that the government would move for a substantial assistance departure if defendant gave his “full and truthful cooperation” to the government. The government refused to move for a departure. The Seventh Circuit agreed that defendant’s substantial breach of the plea agreement relieved the government of its obligation to move for a departure. Defendant failed to disclose his criminal history in his initial presentence interview. Although the district court believed defendant’s claim that he mistakenly thought his prior convictions were non-criminal traffic violations, defendant’s explanation did not suffice for purposes of the plea agreement. Defendant’s numerous other falsifications also violated the condition of “full and truthful cooperation.” He changed his story regarding his knowledge of the cocaine, thus making himself less credible as a witness. Similarly, defendant lied about his education, employment history and family situation. The lies were not irrelevant; they were part of a pattern of fraud, deceit, and misrepresentation that reduced defendant’s potential usefulness as a witness. U.S. v. Lezine, 166 F.3d 895 (7th Cir. 1999).
7th Circuit reaffirms that government motion is prerequisite to § 5K1.1 departure. (712) Defendant pled guilty to drug crimes. In a post-indictment interview, defendant provided information to the government that helped convince it not to go forward with a prosecution against a co-defendant. However, the government refused to bring a § 5K1.1 motion for a substantial assistance departure. Defendant contended that the district court should have nonetheless departed based on his substantial assistance, and that the government motion requirement violated the separation of powers. The Seventh Circuit affirmed based on a “long and unbroken line of cases” recognizing that a government motion is a prerequisite to a § 5K1.1 departure. The government motion requirement did not violate separation of powers principles. U.S. v. Santoyo, 146 F.3d 519 (7th Cir. 1998).
7th Circuit refuses to require § 5K1.1 motion for lack of showing of unconstitutional motive. (712) Defendant argued that the district court erred in not requiring the government to move for a downward departure based on his cooperation, and that the government had no rational reason for refusing to request a downward departure. The Seventh Circuit found no error, because defendant failed to make a threshold showing of any unconstitutional motive by the government. A defendant does not have a constitutionally protected right to a substantial assistance departure. Section 5K1.1 gives the government the power, not the duty, to file a motion for a downward departure when a defendant has substantially assisted. The burden is on the defendant to make a substantial threshold showing of an unconstitutional motive before he is entitled to an evidentiary hearing. Defendant failed to make this showing. Although the government’s failure to make a § 5K1.1 motion was “troubling,” given the extent of defendant’s cooperation, this was an assessment for the prosecutor rather than the courts. U.S. v. Carter, 122 F.3d 469 (7th Cir. 1997).
7th Circuit finds no breach of agreement to recommend a sentence no higher than middle of range. (712) The government promised to recommend a sentence no higher than the middle of defendant’s final guideline range. That range was originally 168-210 months, but he was subject to a 180-month mandatory minimum. At sentencing, the government said the middle was 195 months (referring to a range of 180-210 months), but recommended a statutory minimum of 180 months because of defendant’s assistance to authorities. Defendant argued that the middle of his range was actually 189 months (referring to a range of 168-210 months) and that to give him 15 months’ credit for his assistance (to a sentence of 174 months), the government should have made a § 3553(e) downward departure motion. The Seventh Circuit disagreed. First, under § 5G1.1(c)(2), defendant’s final applicable sentencing range was 180-210 months; the middle of this range was 195 months. Second, even if the middle of the range was 189 months, the government did not breach the plea agreement. The prosecutor recommended a sentence no higher than the middle of either range. U.S. v. King, 62 F.3d 891 (7th Cir. 1995).
7th Circuit rejects due process claim based on government’s considering defendant’s incarcerated status. (712) Defendant argued that the government improperly refused to make a substantial assistance motion because he was incarcerated. The government stated that defendant’s incarceration was simply one factor. The Seventh Circuit rejected defendant’s due process claim because he disclaimed his only potential remedy—withdrawing his guilty plea. Defendant wanted the district court to depart without the benefit of a substantial assistance motion. He had no right to this remedy because the government did not make a promise that could be specifically enforced. In addition, the failure to inform defendant of the effect of his incarceration was not the type of constitutional violation that would allow the court to review the prosecutor’s decision not to file the motion. Defendant’s equal protection claim was meritless. It is rational to distinguish between incarcerated and free defendants because incarcerated defendants cannot provide as much assistance. U.S. v. King, 62 F.3d 891 (7th Cir. 1995).
7th Circuit denies departure where defendant did not allege unconstitutional motive. (712) Defendant moved to compel the government to request a downward departure under § 5K1.1, claiming he had provided substantial assistance. The 7th Circuit upheld the denial of the motion, since defendant did not allege or offer evidence to prove that the government had an unconstitutional motive for refusing to move for the departure. U.S. v. Durman, 30 F.3d 803 (7th Cir. 1994).
7th Circuit finds failure to move for substantial assistance departure did not breach plea agreement. (712) Defendant argued that the government breached his plea agreement by failing to zealously interview him and take full advantage of his decision to cooperate. The 7th Circuit found no breach. The government did interview defendant as agreed. The information that he provided, however, proved nearly worthless. The government therefore did not interview defendant further. The district court agreed that the information was worthless. The government was clearly within its rights in not recommending a downward departure. Since there was no breach, the district court did not err in refusing to permit defendant to withdraw his plea. U.S. v. Nash, 29 F.3d 1195 (7th Cir. 1994).
7th Circuit rejects departure where defendant did not show unconstitutional motives. (712) The 7th Circuit rejected defendant’s claim that he was entitled to a downward departure from the guidelines in recognition of his substantial assistance to the government. Defendant gave no specific information regarding his cooperation, making only conclusory statements that he rendered substantial assistance. In fact, defendant became a fugitive during his period of alleged cooperation. He also did not present any evidence to indicate that the government’s decision not to seek a downward departure was based on unconstitutional motives. U.S. v. Kelly, 14 F.3d 1169 (7th Cir. 1994).
7th Circuit places burden on defendant to show improper motive for refusal to file substantial assistance motion. (712) The 7th Circuit affirmed the district court’s determination that in the absence of a government motion, the defendant has the burden of demonstrating that a departure under section 5K1.1 was justified. Under Wade v. U.S., 112 S.Ct. 1840 (1992), the district court can review a refusal to file a substantial-assistance motion by the prosecutor if the denial is based on an unconstitutional motive. How-ever, the defendant has no right to an evidentiary hearing unless he makes a “substantial threshold showing.” U.S. v. Egan, 966 F.2d 328 (7th Cir. 1992).
7th Circuit affirms that district court lacked discretion to make substantial assistance departure in the absence of a government motion. (712) The 7th Circuit affirmed the district court’s determination that it lacked discretion to depart based on defendant’s substantial assistance in the absence of a government motion. U.S. v. Baker, 965 F.2d 513 (7th Cir. 1992).
7th Circuit upholds government motion requirement. (712) Notwithstanding the absence of a government motion seeking a downward departure based substantial assistance, the district court departed downward on those grounds, concluding that the government motion requirement violated substantive and procedural due process. Relying on Circuit precedent, the 7th Circuit reversed. U.S. v. Spears, 965 F.2d 262 (7th Cir. 1992).
7th Circuit reaffirms that government’s refusal to move for downward departure is not reviewable for bad faith or arbitrariness. (712) The 7th Circuit upheld the district court’s failure to depart downward based on defendant’s substantial assistance since the government did not move for one. The court reaffirmed its holding in U.S. v. Smith, 953 F.2d 1060 (7th Cir. 1992) that a court does not have the authority to make a substantial assistance departure under section 5K1.1 without a motion from the government. It also reaffirmed Smith’s holding that the prosecutor’s power to make or withhold a section 5K1.1 motion is a form of prosecutorial discretion which is not reviewable for arbitrariness or bad faith. A different rule does apply if the prosecutor promises to make a section 5K1.1 motion in return for a guilty plea, and then fails to make the motion. However, this was not such a case. Here, the government agreed to dismiss counts against defendant and “in its sole discretion” to move for a downward departure if defendant provided substantial assistance. U.S. v. Burrell, 963 F.2d 976 (7th Cir. 1992).
7th Circuit rejects downward departure in the absence of a government motion. (712) The 7th Circuit rejected defendant’s argument that a district court may depart downward under a guideline section other section 5K1.1 for a defendant’s substantial assistance. Courts may depart under section 5K2.0 only if the Sentencing Commission did not adequately consider a circumstances, and the Commission adequately considered whether a prosecutorial motion was necessary. Section 5K1.1 is written without leeway, and nothing suggests that the terms of departure for assistance to the prosecution “have been less than exhaustively canvassed.” U.S. v. Smith, 953 F.2d 1060 (7th Cir. 1992).
7th Circuit finds no breach of plea agreement in government’s failure to move for downward departure. (712) Defendant’s plea agreement stated that if defendant provided substantial assistance in accordance with guideline § 5K1.1, the government would move for a downward departure. Defendant made a “good faith effort” to cooperate, but the government did not move for a downward departure because it did not learn anything it did not already know. The 7th Circuit rejected defendant’s claim that the government breached the plea agreement. “[S]ubstantial assistance in compliance with § 5K1.1” of the guidelines means that the government still has the discretion to determine whether defendant’s assistance was substantial. A defendant’s assertion of “good faith” is irrelevant. However, the court recommended that the government be more forthcoming with defendants during plea negotiations, making clear its requirements for substantial assistance. The government should not take advantage of a defendant’s ignorance of the caselaw surrounding substantial assistance. U.S. v. Fairchild, 940 F.2d 261 (7th Cir. 1991).
7th Circuit rejects separation of powers challenge to substantial assistance provision. (712) The 7th Circuit joined other circuits in upholding § 5K1.1 against a claim that it violated the separation of powers doctrine by delegating judicial authority to the executive branch. Congress has the power to eliminate discretion in sentencing altogether. Defendant has no constitutional right to have his cooperation considered in sentencing, therefore, he cannot challenge the procedure for enacting the provision. Defendant’s argument also ignores the traditional charging power exercised by the executive branch. U.S. v. Spillman, 924 F.2d 721 (7th Cir. 1991).
7th Circuit finds defendant not entitled to departure for substantial assistance. (712) Defendant argued that a prosecutor may not arbitrarily refuse to make a motion for a downward departure based on a defendant’s substantial assistance, and that due process requires a case-by-case review of the reasons the prosecutor failed to authorize the departure. The 7th Circuit found that it need not decide whether the Constitution calls for a review of the § 5K1.1 decision more searching than ensuring that the prosecutor did not base a decision on prohibited criteria such as race or speech. Defendant in this case agreed to assist the prosecutor in another case, and then gave testimony that assisted the defense, leading to defendant’s indictment for perjury. Thus, the prosecutor in this case “understandably doubt[ed]” the value of information offered by defendant, whose testimony could now be impeached by the perjury indictment. These considerations afforded a “rational basis for declining to make a motion under § 5K1.1.” U.S. v. Bayles, 923 F.2d 70 (7th Cir. 1991).
7th Circuit upholds requirement of government motion for substantial assistance departure. (712) Defendant contended that guideline § 5K1.1 violated due process by placing sentencing authority in the hands of the prosecutor, and by depriving defendant of an opportunity to be heard. The 7th Circuit rejected defendant’s argument, finding defendant’s argument indistinguishable from an argument rejected in a previous Circuit case. The government’s refusal to make the departure motion was a reasonable exercise of its wide discretion under § 5K1.1. Defendant’s attempted assistance was minimal. The court refused to require a district court to entertain a § 5K1.1 motion by the defense merely because the defendant alleges bad faith or vindictiveness by the government. U.S. v. Donatiu, 922 F.2d 1331 (7th Cir. 1991).
7th Circuit upholds no downward departure where government failed to make motion for substantial assistance. (712) Defendant contended that his sentence should have been mitigated to account for the substantial assistance he claimed to have provided the government. The government not did move for such a reduction. Although defendant presented evidence that the government’s failure to make such a motion was unreasonable, the 7th Circuit upheld the failure to depart. The government motion requirement does not violate due process. Moreover, the district court did not believe defendant’s declarations that his cooperation warranted a reduction in sentence and made an express finding that defendant had not substantially assisted the government. U.S. v. Wilson, 922 F.2d 1336 (7th Cir. 1991).
7th Circuit finds that § 5K1.1’s requirement of a government motion does not violate due process. (712) Defendant argued that the requirement under guidelines § 5K1.1 for a government motion in order to receive a reduction for substantial assistance violated due process. The 7th Circuit found that defendant had failed to present this issue to the district court, but since the government did not argue the waiver issue, the court considered it. Defendant’s argument failed because it presupposed a right to have the court consider his assistance to the government in sentencing. “Since Congress did not have to provide any substantial assistance reduction, Congress could reasonably condition any reduction it did provide.” The requirement of a government motion was reasonable. U.S. v. Valencia, 913 F.2d 378 (7th Cir. 1990).
7th Circuit rules that prosecutor’s statement that defendant’s cooperation “should be considered” did not constitute a 5K1.1 motion. (712) The government informed the court at sentencing that defendant had assisted in the prosecution and conviction of another cocaine dealer, and said that his cooperation “should be considered.” The 7th Circuit concluded that these statements did not satisfy the motion requirement in § 5K1.1 of the guidelines. Since no motion was filed, the district court did not have to determine whether defendant provided substantial assistance to the authorities. U.S. v. Brick, 905 F.2d 1092 (7th Cir. 1990).
7th Circuit holds that requirement that government file a motion for a substantial assistance departure does not violate statutory mandate. (712) Defendant pled guilty to one count of bank robbery and one count of distributing cocaine. Defendant appealed his bank robbery sentence, claiming that the district court erred in failing to depart downwards due to his cooperation with state and federal authorities despite the lack of a government motion for a substantial assistance departure. He claimed that § 5K1.1’s requirement of a government motion violated 28 U.S.C. § 994(a), because § 5K1.1 does not assure that a district court may take a defendant’s substantial assistance into account. The 7th Circuit disagreed, finding that it was reasonable for the commission to require a government motion because the government is ordinarily in the best position to evaluate the assistance provided. Furthermore § 994(a) only requires the guidelines to recognize the “general appropriateness” of a substantial assistance departure. Also, Rule 35(b) requires a government motion prior to a reduction to reflect post-sentencing substantial assistance. “Since Congress conditioned the court’s power to lower sentences to reflect substantial assistance on the government’s motion, it was not unreasonable for the commission to include a government motion requirement in any guideline.” U.S. v. Lewis, 896 F.2d 246 (7th Cir. 1990).
7th Circuit holds that requirement of government motion prior to substantial assistance departure does not violate due process. (712) A bank robber argued that it violated the due process clause to require that the government file a motion prior to a departure for substantial assistance because (1) it improperly restricts a sentencing judge’s traditional discretion, (2) it deprives a defendant of his right to present accurate and reliable sentencing information,” and (3) it presents an unacceptable risk of prejudgment or bias because the prosecutor determines whether a court may consider departing. The 7th Circuit rejected each of these arguments, holding that because a defendant has no right to have a court depart for substantial assistance, he cannot complain that § 5K1.1 deprives the court of the opportunity to depart. U.S. v. Lewis, 896 F.2d 246 (7th Cir. 1990).
8th Circuit finds no improper motive for government’s failure to make substantial assistance motion. (712) The government refused to move for a substantial assistance departure, citing concerns about the reliability of defendant’s information and his credibility generally. The government also believed that defendant was an ineffective prosecution witness at trial, as indicated by the jury’s acquittal in the case where defendant testified. Moreover, the timing of defendant’s cooperation was not helpful, since it did not begin until the government investigation had ended. Defendant presented no evidence that the government’s refusal to file a substantial assistance motion was not rationally related to a legitimate end. The Eighth Circuit held that the government’s refusal to move for the substantial assistance departure was not based on an improper motive. U.S. v. Smith, 574 F.3d 521 (8th Cir. 2009).
8th Circuit says Booker does not allow sentence below mandatory minimum, absent substantial assistance. (712) Defendant faced a mandatory life sentence on the two drug counts and a mandatory consecutive 60-month sentence on a gun count. The government made a substantial assistance motion under § 5K1.1 and 18 U.S.C. § 3553(e) on the drug counts, which the trial court granted. However, the government refused to make a substantial assistance motion on the gun count, stating that this was based on “a determination of her overall assistance.” Defendant asked the court to compel the government to make the motion on the gun count, and the court found that the government in bad faith tried to limit the court’s sentencing discretion. The court also imposed two alternative sentences, granting downward Booker variances from the mandatory minimum, in the event that the appellate court reversed the compelled substantial assistance motion. The Eighth Circuit reversed all three possible bases for the 186-month sentence. As to the compelled motion for a substantial assistance departure, the government’s reason for not making the motion on the gun count fit within the permissible bounds of prosecutorial discretion because the decision was based on defendant’s overall assistance. As for the Booker variances, Booker does not allow a variance below the statutory minimum. A reduction below the statutory minimum must be based exclusively on assistance-related considerations, and cannot be based on § 3553(a) factors. U.S. v. Freemont, 513 F.3d 884 (8th Cir. 2008).
8th Circuit finds no improper government motive for refusal to make § 5K1.1 motion. (712) Defendant argued that the district court erred by not compelling the government to file a motion for a substantial assistance departure under § 5K1.1 or 18 U.S.C. § 3553(e). Alternatively, he argued that the court abused its discretion by not considering his assistance under the factors outlined in 18 U.S.C. § 3553(a). The Eighth Circuit ruled that defendant did not make a substantial threshold showing that the government had an improper motive for refusing to make the motion. Absent a plea agreement that creates a duty for the government to file the motion, the government retains discretion to determine whether substantial assistance was provided and whether to file a motion under § 3553(3) or § 5K1.1. Although a third party offered to provide assistance on behalf of defendant, the government contended that it neither solicited, nor used, that assistance because it determined that the third party was unreliable and impeachable. Defendant conceded that the government articulated a logical basis for not using the third party as a confidential informant. As to the § 3553(a) factors, the district court did not abuse its discretion when it imposed a sentence at the bottom of the applicable guideline range. Because the government did not file, and the district court did not compel, a motion under § 3553(e), defendant was subject to a statutory minimum sentence of 180 months. Thus, the most he could gain under § 3553(a) would be an eight-month decrease in his sentence. U.S. v. Fields, 512 F.3d 1009 (5th Cir. 2008).
8th Circuit upholds refusal to hold evidentiary hearing on government’s failure to make § 5K1.1 motion. (712) Defendant challenged the district court’s refusal to hold an evidentiary hearing on the government’s failure to move for a substantial assistance departure. Under Wade v. U.S., 504 U.S. 181 (1992), defendant was entitled to an evidentiary hearing only if he made “a substantial threshold showing” that the government’s refusal to make a substantial assistance motion was premised on an improper motive. Defendant claimed that the government had acted irrationally in failing to move because it had minimized and inaccurately represented his cooperation. The Eighth Circuit ruled that because defendant offered no evidence which went beyond his general allegations of improper motive, the district court did not err in declining to hold an evidentiary hearing. U.S. v. Holbdy, 489 F.3d 910 (8th Cir. 2007).
8th Circuit says Booker does not allow sentence below mandatory minimum, absent substantial assistance. (712) Defendant faced a mandatory life sentence on the two drug counts and a mandatory consecutive 60-month sentence on a gun count. The government made a substantial assistance motion under § 5K1.1 and 18 U.S.C. § 3553(e) on the drug counts, which the trial court granted. However, the government refused to make a substantial assistance motion on the gun count, stating that this was based on “a determination of her overall assistance.” Defendant asked the court to compel the government to make the motion on the gun count, and the court found that the government in bad faith tried to limit the court’s sentencing discretion. The court also imposed two alternative sentences, granting downward Booker variances from the mandatory minimum, in the event that the appellate court reversed the compelled substantial assistance motion. The Eighth Circuit reversed all three possible bases for the 186-month sentence. As to the compelled motion for a substantial assistance departure, the government’s reason for not making the motion on the gun count fit within the permissible bounds of prosecutorial discretion because the decision was based on defendant’s overall assistance. As for the Booker variances, Booker does not allow a variance below the statutory minimum. A reduction below the statutory minimum must be based exclusively on assistance-related considerations, and cannot be based on § 3553(a) factors. U.S. v. Freemont, 513 F.3d 884 (8th Cir. 2008).
8th Circuit finds no improper government motive for refusal to make § 5K1.1 motion. (712) Defendant argued that the district court erred by not compelling the government to file a motion for a substantial assistance departure under § 5K1.1 or 18 U.S.C. § 3553(e). Alternatively, he argued that the court abused its discretion by not considering his assistance under the factors outlined in 18 U.S.C. § 3553(a). The Eighth Circuit ruled that defendant did not make a substantial threshold showing that the government had an improper motive for refusing to make the motion. Absent a plea agreement that creates a duty for the government to file the motion, the government retains discretion to determine whether substantial assistance was provided and whether to file a motion under § 3553(3) or § 5K1.1. Although a third party offered to provide assistance on behalf of defendant, the government contended that it neither solicited, nor used, that assistance because it determined that the third party was unreliable and impeachable. Defendant conceded that the government articulated a logical basis for not using the third party as a confidential informant. As to the § 3553(a) factors, the district court did not abuse its discretion when it imposed a sentence at the bottom of the applicable guideline range. Because the government did not file, and the district court did not compel, a motion under § 3553(e), defendant was subject to a statutory minimum sentence of 180 months. Thus, the most he could gain under § 3553(a) would be an eight-month decrease in his sentence. U.S. v. Fields, 512 F.3d 1009 (5th Cir. 2008).
8th Circuit holds that 18-month sentence is reasonable after substantial assistance departure. (712) Defendant faced a mandatory minimum sentence of 120 months, but because he qualified for safety valve protection, he was subject to a guideline range of 70-87 months. The district court granted the government’s motion for a § 5K1.1 departure, and imposed a sentence of 18 months. The Eighth Circuit held that the 18-month sentence was reasonable. The court made its decision based on its evaluation of how defendant’s grand jury testimony had helped the government in prosecuting other members of the conspiracy. While serious consideration needed to be given to the government’s recommendation, it is not controlling. Here, the district court seriously considered the government’s recommendation before arriving at its own evaluation of the significance and usefulness of defendant’s assistance. The § 3553(a) factors supported the reasonableness of the court’s sentence. Relevant to the “nature and circumstances of the offense and the history and characteristics of the defendant,” was the fact that defendant was not personally involved in the distribution of methamphetamine or in any criminal conduct until these offenses when he was in his early forties and purchased the horse vitamins at the behest of his young niece. His expression of regret at the sentencing hearing was perceived by the court to be genuine. U.S. v. Pizano, 403 F.3d 991 (8th Cir. 2005).
8th Circuit holds that downward departure to 18-month sentence for drug offense was unreasonable. (712) Defendant provided substantial assistance following his arrest on drug conspiracy and gun charges. He pled guilty, and the government moved for a § 5K1.1 departure on the conspiracy charge. The district court granted a much greater departure, imposing an 18-month sentence for the conspiracy. This represented an 85% departure from the mandatory minimum of 120 months. Coupled with the consecutive 60-month mandatory minimum sentence on the gun count, defendant received a departure of 57% from the mandatory sentence of 180 months. The 8th Circuit held that the district court abused its discretion by departing downward to an “unreasonable degree.” In justifying the degree of departure, the district court articulated no reasons other than the traditional § 5K1.1 factors and its dissatisfaction with the then-mandatory nature of the sentencing guideline. The significance and usefulness of the assistance and its nature and extent were such that the departure was excessive. The panel was also troubled by the court’s comments that indicated that the departure was based, at least in part, on an improper factor – the court’s dissatisfaction with the Sentencing Guidelines. U.S. v. Haack, 403 F.3d 997 (8th Cir. 2005).
8th Circuit says defendant is not entitled to evidentiary hearing based solely on claim that she supplied information. (712) Defendant argued that the district court abused its discretion by denying her motion for an evidentiary hearing on her motion to compel the government to make a substantial assistance departure motion. At sentencing, she testified that she gave the government names; showed officers businesses, houses and people associated with drug activity; and repeatedly telephoned officers but they never returned her phone calls. However, defendant never testified before a grand jury, never testified in any contested sentencing hearings, and never purchased drugs for the government. Defendant was unable to name any person the government charged or held using her information. The Eighth Circuit found no abuse of discretion. Even crediting defendant’s version of the facts did not support any inference that the government acted unconstitutionally or irrationally in refusing to move for a downward departure based on substantial assistance. A defendant’s bare assertions of assistance do not constitute a “substantial threshold showing” of improper conduct by the government. U.S. v. Mullins, 399 F.3d 888 (8th Cir. 2005).
8th Circuit says government’s desire to limit court’s discretion is not bad faith. (712) Defendant’s guideline range was 78-97 months in prison, and the mandatory minimum for his offense was five years. The government filed a § 5K1.1 motion, recommending a 20 percent downward departure based on defendant’s substantial assistance. The government did not make a motion under 18 U.S.C. § 3553(e), which is required before a court may depart below a statutory minimum sentence. The district court granted defendant’s motion to compel the government to make the § 3553(e) motion, concluding the government acted in bad faith in refusing to make the § 3553(e) motion because “I can’t think of a single reason other than to limit my discretion.” The Eighth Circuit reversed. Under Wade v. U.S., 504 U.S. 181 (1992), courts have authority to review a prosecutor’s refusal to file a substantial assistance motion if they find that the refusal was based on an unconstitutional motive. Bad faith is not a constitutional standard. A substantive due process violation requires proof that a government official’s abuse of power “shocks the conscience.” Although the court could not think of a reason to not file the motion other than to limit its discretion, this is not improper. “The government’s refusal to file a § 3553(e) or U.S.S.G. § 5K1.1 motion always has the effect of limiting the sentencing court’s discretion. But so long as the government is exercising the statutory power conferred by those laws and its action is not based on an unconstitutional motive, its refusal to file the motion is unreviewable.” U.S. v. Moeller, 383 F.3d 710 (8th Cir. 2004).
8th Circuit says court properly applied mandatory life sentence and refused to depart without government motion. (712) Defendant argued that the district court mistakenly believed that it did not have the power to depart due to the application of the career offender statute and 21 U.S.C. § 841. Because the government did not file a motion for a downward departure from the statutory minimum sentence, the Eighth Circuit found that the district court properly determined that it had no authority to depart. A district court lacks authority to sentence below the statutory minimum if the pertinent provisions in § 841(b) apply and the government has lawfully declined to move for a downward departure under 18 U.S.C. § 3553(e). Whether the mandatory life sentence under § 841(b)(1)(A)(viii) applied depended on whether 500 or more grams of methamphetamine were involved in defendant’s offense. The jury convicted defendant of conspiring to distribute 500 or more grams of meth, a fact the sentencing court was permitted to adopt because the same court presided over the trial in the case. Because defendant was previously convicted of at least two other drug felonies, § 841(b)(1)(A) made a life sentence mandatory. U.S. v. Collins, 340 F.3d 672 (8th Cir. 2003).
8th Circuit holds that government’s refusal to move for substantial assistance departure was not irrational. (712) Defendant argued that the government breached his plea agreement by refusing to move for a § 5K1.1 departure. He pointed out that he provided the government with information regarding a fellow inmate who had escaped, as well as information about the inmate’s girlfriend. These individuals were later apprehended and pled guilty to various federal charges. Defendant contended that his cooperation led to these pleas, as he was an eyewitness to the escape and would have provided damaging testimony against the inmate and his girlfriend at trial. The government, however, explained that the information provided by defendant was of little value. The escapee was apprehended based on a tip from a neighbor, and the case against the escapee and his girlfriend was strong without defendant’s testimony. The Eighth Circuit found no irrationality in this explanation and no indication of bad faith by the government. U.S. v. Hardy, 325 F.3d 994 (8th Cir. 2003).
8th Circuit holds that court lacked authority to depart where no government motion. (712) Defendant argued that he was entitled to a downward departure because at the time of his arrest he disclosed information that led to the arrest and prosecution of two co-conspirators. The district court found that it lacked authority to depart absent a government motion. The Eighth Circuit agreed. Absent a motion by the government pursuant to § 5K1.1, a district court generally lacks the authority to grant a downward departure based on a defendant’s substantial assistance. The exception is when the defendant makes a “substantial threshold showing” of prosecutorial discrimination or irrational conduct. Here, defendant failed to demonstrate that the prosecution acted in a discriminatory or irrational manner when it refused to file a substantial assistance motion. U.S. v. McDonald, 298 F.3d 1020 (8th Cir. 2002).
8th Circuit holds that failure to make § 5K1.1 motion after target’s death did not breach plea agreement. (712) Pursuant to his plea agreement, defendant provided the government with information concerning the activities of his brother-in-law Lewis and other co-conspirators in the form of debriefings and testimony before the grand jury. However, before Lewis could be indicted, he died. The government declined to move for a substantial assistance departure. The Eighth Circuit held that the government’s failure to file a motion for a substantial assistance departure did not breach the plea agreement. The plea agreement expressly stated that the decision whether or not to file the motion was entirely within the discretion of the government. The discretionary decision may be challenged only if the defendant makes a “substantial threshold showing” of prosecutorial discrimination or irrational conduct. Although Lewis’s death was a matter over which defendant had no control, and defendant may have provided assistance to the full extent of his abilities, whether the assistance provided was “substantial” was for the government to determine. U.S. v. Amezcua, 276 F.3d 445 (8th Cir. 2002).
8th Circuit finds no substantial threshold showing of unconstitutional motive or bad faith. (712) The Eighth Circuit ruled that defendant failed to make a substantial threshold showing that the government’s refusal to move for a substantial assistance departure was unconstitutional or motivated by bad faith. Defendant admitted that he lied to police officers when he denied his post-arrest purchase of methamphetamine. He also admitted that he lied when he denied his continued drug use. Defendant’s untruthfulness and continuing illegal conduct ruined his potential assistance against at least four targets of the government’s investigation and set the investigation back several months. The government’s refusal to move for a departure was therefore rationally related to a legitimate governmental purpose – encouraging criminal defendants to be fully cooperative and forthright with the government. The essence of defendant’s allegation of bad faith was that the more lenient treatment some of his co-conspirators received demonstrated that the government’s refusal was an attempt to punish him for his lies and recalcitrance. However, defendant’s allegation was unsupported; rather, he inferred such intent from the mere fact of the refusal. The government, in contrast, consistently represented that it refused to move on defendant’s behalf because of the destructive effect his recalcitrance had upon its investigation. U.S. v. Wolf, 270 F.3d 1188 (8th Cir. 2001).
8th Circuit rules that government retained discretion over whether to seek § 3553(e) reduction in addition to § 5K1.1 reduction. (712) The government requested a substantial assistance departure under § 5K1.1, but did not seek a more substantial reduction under 18 U.S.C. § 3553(e). Defendant argued that his attorney was ineffective in failing to seek specific performance of the plea agreement, which defendant contended required the government to recommend a departure under § 3553(e). The agreement provided, in pertinent part, that if the government determined that defendant provided substantial assistance, then it would request that defendant received a sentence “under the applicable statutes and/or sentencing guidelines pursuant to 28 U.S.C. § 994(n), 18 U.S.C. § 3553(e), and sentencing guidelines, section 5K1.1.” Although the Eighth Circuit found this clause written awkwardly, it ruled that the clause “and/or” sufficiently conveyed the intent of the government to retain discretion over whether to seek a § 3553(e) reduction “and/or” a § 5K1.1 reduction. This position was bolstered by the last sentence of the paragraph, in which the government reserved “the right to make the sole determination … whether to request a reduction generally or a specific sentence or sentence reduction.” This evidenced the government’s strong intent to retain the right to determine the specific form of sentencing reduction. Accordingly, defendant’s counsel was not objectively unreasonable in failing to act on defendant’s particular interpretation of the plea agreement. U.S. v. Taylor, 258 F.3d 815 (8th Cir. 2001).
8th Circuit rules defendant waived challenge to government’s failure to make § 5K1.1 motion. (712) Defendant provided some cooperation to the government but ultimately was unable or unwilling to identify the target of the DEA’s investigation. The Eighth Circuit ruled that defendant waived his right to challenge the government’s failure to move for a substantial assistance departure. Normally when a defendant fails to raise an issue before the district court, the issue is not properly preserved for appeal, and is subject to plain error review under Rule 52(b). However, there was no need to conduct plain error review because defendant waived his right to object. When a defendant waives a right, that is intentionally relinquishes or abandons it, the claim is extinguished altogether. Here, defendant did not object to the PSR, which did not identify substantial assistance as a basis for departure. When the government did not make the motion, he made no departure motion on his own nor did he otherwise indicate to the court at the time of sentencing that he was entitled to such a departure. After explaining the extent of defendant’s cooperation to the court, defendant’s counsel asked only that he be sentenced at the bottom of the sentencing range. “He cannot now complain when he received what he asked for.” U.S. v. Murphy, 248 F.3d 777 (8th Cir. 2001).
8th Circuit holds that government’s failure to file departure motion breached plea agreement. (712) Defendant’s plea agreement provided that if the government “concludes that you have provided substantial assistance … the United States shall file” a motion for a substantial assistance departure. The prosecutor did not make a departure motion, instead indicating, at the sentencing hearing, that she had in her possession, a motion for reduction of sentence under Rule 35(b). In the Rule 35(b) motion, filed immediately after sentencing, the government conceded defendant’s substantial assistance, but noted that defendant might be needed for further testimony, and stated that the government would request a hearing on the motion following completion of his cooperation. The Eighth Circuit held that the government’s failure to move for a substantial assistance departure breached the plea agreement. The executed agreement superseded the government’s otherwise broad discretion to make a departure motion. The government agreed to move for a departure under § 5K1.1 or 18 U.S.C. § 3553(e), or both, if in its sole discretion it determined that defendant had provided substantial assistance. The government exercised that discretion in defendant’s favor when, in its Rule 35(b) motion, it conceded that defendant had provided the requisite assistance. Once the government determined that defendant had provided substantial assistance, it was obligated to comply with its agreement to file a departure motion. U.S. v. Johnson, 241 F.3d 1049 (8th Cir. 2001).
8th Circuit agrees that refusal to make substantial assistance motion was not improper. (712) Defendant contended that he wanted to help the police but was wrongfully denied an opportunity to do so. The district court listened to defendant’s testimony and concluded that it established only that “serious communication difficulties existed” between defendant and the government. The court did not believe that the government’s refusal to move for a substantial assistance departure was irrational, in bad faith, or based on an unconstitutional motive. The Eighth Circuit held that the district court did not err in denying defendant’s request for a substantial assistance departure. Although the district court’s analysis of the dispute between defendant and the government was brief, the court’s findings were not clearly erroneous. U.S. v. Tyler, 238 F.3d 1036 (8th Cir. 2001).
8th Circuit says Koon does not authorize substantial assistance departures under § 5K2.0. (712) Defendant conceded that the district court could not grant a downward departure under § 5K1.1 without a motion from the government. However, he argued that “substantial assistance” was an unmentioned factor in § 5K2.0, and therefore a permitted departure factor under Koon v. United States, 518 U.S. 81 (1996). The Eighth Circuit refused to read Koon as authorizing substantial assistance departures under § 5K2.0. Part K of the guidelines, which covers departures, contains two provisions. The first is “substantial assistance to authorities,” and the second is “other grounds for departure.” This clear division means that “substantial assistance” cannot be ground for departure under the second. A defendant cannot avoid the § 5K1.1 government-motion requirement by moving for a substantial assistance departure under § 5K2.0. U.S. v. Fountain, 223 F.3d 927 (8th Cir. 2000).
8th Circuit upholds finding that defendant not entitled to § 5K1.1 motion. (712) Defendant contended that the government promised him a sentence reduction on the day of his arrest, and that his initial cooperation entitled him to a § 5K1.1 motion. The district court held a hearing on defendant’s motion to compel the government to file the substantial assistance motion, at which it found that the government had not promised defendant a sentence reduction on the day of his arrest. At the hearing, the DEA agent testified that he agreed only to convey details of defendant’s cooperation to the prosecutor, who would then decide whether or not to make a motion. A second officer who was present during the interviews also testified that he did not hear defendant promised a sentence reduction. The Eighth Circuit found no clear error—the district court obviously found the DEA agent to be more credible than defendant. The government’s refusal to file the § 5K1.1 did not breach the plea agreement, and was properly based on its evaluation of the nature and quality of defendant’s assistance. Defendant failed to cooperate fully with the government after entering the plea agreement. After signing the agreement, he was given multiple opportunities to provide complete information about his involvement, but repeatedly refused to provide any information beyond what he offered during his initial interviews at the time of his arrest. U.S. v. Johnston, 220 F.3d 857 (8th Cir. 2000).
8th Circuit says court properly refused to find government acted in bad faith. (712) Defendant argued that the government acted in bad faith when it refused to move for a substantial assistance departure under § 5K1.1. He contended that he assisted the government by giving information on a planned escape from a federal prison in Kansas, and by identifying his drug sources. The government did not dispute that defendant gave information on the prison escape or that his suppliers were indicted in part based on information defendant provided. However, the government believed that defendant’s refusal to acknowledge his role in directing his girlfriend to buy drugs while he was incarcerated, together with his continued insistence that he distributed amphetamine rather than methamphetamine, his lies about drug quantity, and his attempt to force his girlfriend to recant her version of the events, made defendant an unreliable witness. The district court found that defendant had failed to show that the government acted in bad faith. The Eighth Circuit agreed that the evidence supported this conclusion. U.S. v. Hyatt, 207 F.3d 1036 (8th Cir. 2000).
8th Circuit rules government had sufficient grounds to deny § 5K1.1 motion. (712) Defendant signed a plea agreement to cooperate and provide truthful information to the government. At her debriefing, defendant denied knowledge of her fiancé’s drug activity, denied using drugs and denied seeing them at their house. When asked whether money she entered into business accounts with false receipts was from drug trafficking activity, she replied “not specifically.” The government then ended the questioning. The Eighth Circuit ruled that defendant did not make a “substantial threshold showing” that the government’s refusal to make a § 5K1.1 motion was improperly motivated. Instead, defendant merely disagreed with the government’s appraisal of her truthfulness. It was not irrational for the government to view defendant’s answer “not specifically” as a denial of an element of the offense of conviction. This provided a sufficient ground for the government, under the plea agreement and the facts of the case, to make a good-faith refusal to file the § 5K1.1 motion. Additionally, the government could reasonably conclude any information defendant provided, even if truthful, did not amount to substantial assistance. Providing “truthful information” and providing “substantial assistance” are not interchangeable. U.S. v. Due, 205 F.3d 1030 (8th Cir. 2000).
8th Circuit says government may consider refusal to testify at co-conspirators’ sentencing. (712) Defendant promised as part of his plea agreement to testify “before the Grand Jury and/or at any trial or other court proceeding …” As a direct result of his agreement to testify, two co-conspirators also pled guilty. Accordingly, the government filed a downward departure motion under § 5K1.1. However, it refused to make a motion under 18 U.S.C. § 3553(e) because defendant refused to testify at the co-conspirators’ sentencing hearings. The Eighth Circuit refused to compel the government to make such a motion. Defendant did not make a substantial threshold showing that the government acted unconstitutionally, irrationally, or in bad faith. His plea agreement did not entitle him to refuse to testify in the sentencing proceedings. Defendant may have been entitled to assert the privilege against self-incrimination in response to particular questions, but given his promise to testify against his co-conspirators at any type of proceeding, he was not entitled to assert a blanket privilege and refuse to take the stand at sentencing. The government legitimately considered his refusal to adhere to the terms of the agreement in assessing the quality of his assistance. U.S. v. Vernon, 187 F.3d 884 (8th Cir. 1999).
8th Circuit upholds refusal to make § 5K1.1 motion where defendant continued to use drugs. (712) Prior to sentencing, defendant failed to appear for drug counseling four times and tested positive for cocaine four other times. The government refused to move for a substantial assistance departure because defendant had not revealed to the government that he had been using cocaine and had not revealed his source. The district court found the decision was within the government’s discretion under his plea agreement and that defendant had “ruined himself as a potential witness.” In U.S. v. Anzalone, 148 F.3d 940, reh’g. en banc granted, opinion vacated, 148 F.3d 940, opinion reinstated, reh’g. en banc denied, 161 F.3d 1125 (8th Cir. 1998), the government refused to file a downward departure motion after it heard that the defendant had recently used drugs. The Eighth Circuit reversed because the government’s decision not to file the motion “was for reasons other than the nature of Anzalone’s substantial assistance.” The Eighth Circuit found this case distinguishable from Anzalone. The government’s refusal here was based on its conclusion that defendant had not met his duty under the plea agreement because he did not keep the government apprised of his ongoing drug involvement or his sources and had undermined his usefulness as a potential witness. The government’s decision was based on its evaluation of the quality of defendant’s assistance. U.S. v. Wilkerson, 179 F.3d 1083 (8th Cir. 1999).
8th Circuit will not review where no “substantial threshold showing” of improper motive. (712) Defendant’s plea agreement said that the government would make a § 5K1.1 motion for departure if it determined, “in its sole discretion,” that defendant provided substantial assistance. The Eighth Circuit would not review the government’s refusal to make the § 5K1.1 motion because defendant did not make a “substantial threshold showing” of improper motive. Defendant simply disagreed with the government’s assessment of his truthfulness and the extent to which his cooperation assisted the government. U.S. v. Barrett, 173 F.3d 682 (8th Cir. 1999).
8th Circuit says whether defendant told all he knew was irrelevant for § 5K1.1. (712) The government refused to make the § 5K1.1 motion it had conditionally promised in defendant’s plea agreement. At a hearing on the matter, defendant insisted that he told the government everything he knew, but he broke off discussions when he decided that he wanted to withdraw his plea. The Eighth Circuit agreed that the government did not act irrationally in refusing to make the motion. Defendant’s objection focused on the wrong point. The question was not whether he told all that he knew; the question was whether the government could rationally conclude that the information he provided was not substantial. On this record, the government could rationally make this conclusion. U.S. v. D’Angelo, 172 F.3d 1046 (8th Cir. 1999).
8th Circuit upholds refusal to file § 5K1.1 motion where defendant gave surprise testimony at trial. (712) Defendant pled guilty to drug charges. He participated in six police debriefings and testified against a co-conspirator. However, at the co-conspirator’s trial, defendant revealed for the first time that another person, “El Gordo,” helped arrange and carry out the drug transactions in which defendant participated. He admitted that he withheld information about El Gordo from police in order to protect himself and his family from retribution. The government refused to make a § 5K1.1 motion. The Eighth Circuit held that the district court correctly denied defendant’s motion for a hearing on the government’s refusal to file the § 5K1.1 motion. Defendant did not make a threshold showing that the government’s refusal was improper. The government refused to file the motion because defendant was untruthful with authorities in police debriefings and prejudiced the government’s case against the co-conspirator. The government has a legitimate interest in providing an incentive for defendants to cooperate fully. There was no evidence of bad faith or an unconstitutional motive. U.S. v. Licona-Lopez, 163 F.3d 1040 (8th Cir. 1998).
8th Circuit says government may not refuse § 5K1.1 motion for reasons unrelated to defendant’s assistance. (712) Defendant pled guilty to drug charges. He provided assistance to the government, but the government refused to file a § 5K1.1 motion because it had received information that defendant had recently used and possessed drugs. The Eighth Circuit held that the government cannot base its § 5K1.1 motion decision on factors other than the defendant’s substantial assistance. Once the government concludes that a defendant has provided substantial assistance, and has assessed “the cost and benefit that would flow from moving,” it should make the downward departure motion and then advise the sentencing court if there are unrelated factors, such as defendant’s alleged post-plea drug use, that in the government’s view should preclude or restrict a downward departure. Although defendant’s plea agreement provided that if defendant breached the agreement, the government could “refuse to make a motion or recommendation,” this provision did not apply to a substantial assistance departure. Judge Murphy dissented. U.S. v. Anzalone, 161 F.3d 1125 (8th Cir. 1998).
8th Circuit requires evidentiary hearing on government’s refusal to make substantial assistance motion. (712) Defendant’s plea agreement said if she cooperated in the prosecution of her brother, the government would consider filing § 5K1.1 and § 3553(e) motions. The prosecutor also told defendant he did not believe she should go to prison for 20 years, and that she could expect a 7-10 year sentence. Defendant then testified for 5 days against her brother in two separate criminal proceedings, helping the government secure a life sentence against him. The government filed a § 5K1.1 motion, but it refused to file a § 3553(e) motion to go below the statutory 20-year minimum. The government claimed this was because (a) defendant failed to cooperate until her second trial, (b) her testimony was not accurate or complete, (c) no other persons could be prosecuted because of her cooperation, and (d) she violated her plea agreement by not giving reliable and complete testimony about money laundering. The Sixth Circuit ordered an evidentiary hearing on whether the government’s acted irrationally or in bad faith. The court gave no credence to the first reason, because the plea agreement was not entered into until after defendant’s second trial. If the government was going to consider defendant’s lateness in entering a plea, it should have said so when the plea was entered. There was no merit to the claim that defendant’s testimony was not accurate or complete. If the fact that no other person could be prosecuted was a condition of her agreement, the prosecutor should have made this clear when he accepted her plea agreement. Moreover, the prosecutor’s representations to defendant about the sentence she should receive may have superseded the discretion he would otherwise enjoy in deciding whether to file a § 3553(e) motion. U.S. v. Rounsavall, 128 F.3d 665 (8th Cir. 1997).
8th Circuit orders hearing on government’s refusal to make § 5K1.1 motion. (712) After his arrest in Nebraska on drug charges, defendant provided information to an FBI agent investigating a co-conspirator for drug crimes in Oklahoma. The FBI agent said the information appeared truthful and would be helpful in the case against the co-conspirator. The Oklahoma AUSA assigned to the co-conspirator’s case asked for defendant’s sentencing to be postponed to give defendant an incentive to testify at the co-conspirator’s trial. But when the co-conspirator pled guilty, the Oklahoma AUSA wrote to the U.S. Attorney’s office in Nebraska stating that she could not support a § 5K1.1 departure because the information defendant provided was not completely correct and defendant had not been completely truthful. Based on this letter, the government refused to move for a § 5K1.1 departure. The Eighth Circuit remanded for an evidentiary hearing to decide whether the government acted irrationally in refusing to make a § 5K1.1 notion. Under the circumstances, particularly the lack of any concrete explanation for the Oklahoma prosecutor’s decision, the district court should have conducted an evidentiary hearing to determine whether the Nebraska prosecutor’s failure to file a § 5K1.1 motion was irrational. U.S. v. Pipes, 125 F.3d 638 (8th Cir. 1997).
8th Circuit finds government did not reserve discretion to decide if cooperation merited § 5K1.1 motion. (712) Defendant challenged the government’s refusal to make a § 5K1.1 motion for a substantial assistance departure. Defendant’s cooperation agreement provided that in exchange for defendant “providing truthful information, complete cooperation, truthful testimony and assistance,” the government would file a § 5K1.1 motion. The stipulation of facts further provided that in exchange for defendant’s plea and fulfillment of the conditions of the cooperation agreement, the government agreed to file a downward departure motion. The Eighth Circuit held that this agreement did not unambiguously reserve the government’s customary discretion to decide whether defendant’s cooperation warranted a substantial assistance motion. The cooperation agreement conditioned the motion on defendant providing truthful information and testimony and “complete cooperation.” To defendants and defense attorneys, this may connote doing all one can do—an objective standard—whereas providing “substantial assistance” connotes doing enough to satisfy the prosecutor’s notion of what is substantial. The court remanded for further proceedings to determine what the parties meant by “truthful information, complete cooperation, truthful testimony and assistance,” and whether defendant met that condition as construed. U.S. v. Barresse, 115 F.3d 610 (8th Cir. 1997).
8th Circuit finds no threshold showing of bad faith in refusing to file § 5K1.1 motion. (712) Defendant challenged the government’s refusal to file a § 5K1.1 motion for a substantial assistance departure. The Eighth Circuit held that defendant did not make the required threshold showing that the government was irrational or in bad faith. Despite a plea agreement obligating defendant to cooperate in the prosecution of his co-defendants, defendant initially refused to enter the courtroom when he was called as the government’s first witness. When he finally did testify, he attempted to minimize the roles of his co-defendants. His earlier plea hearing testimony had been far more incriminating. Defendant admitted that his later testimony was “practically an act.” In the plea agreement, the government expressly conditioned its obligation to file a § 5K1.1 motion on the government’s discretionary assessment of whether defendant provided substantial assistance. U.S. v. Matlock, 109 F.3d 1313 (8th Cir. 1997).
8th Circuit says failure to make § 5K1.1 motion did not breach plea agreement. (712) Defendant con-tended that the district court should have granted his motion to withdraw his guilty plea, since the government failed to file a promised § 5K1.1 motion. The Eighth Circuit found no violation of the plea agreement. The agreement said the government retained discretion to file a § 5K1.1 motion. It also stated that defendant understood that he would not be able to withdraw his plea if he was not satisfied with the government’s substantial assistance determination. Defendant stated at sentencing that the written plea agreement covered his entire understanding with the government. U.S. v. Knight, 96 F.3d 307 (8th Cir. 1996).
8th Circuit finds no showing that government improperly refused to make § 5K1.1 motion. (712) Paragraph 9 of defendant’s original plea agreement acknowledged his cooperation. However, he withdrew his guilty plea, and the plea agreement became unenforceable. Defendant later pled guilty, and argued that the prosecutor’s reference to this provision at sentencing showed that his assistance was substantial, and that it was irrational for the prosecutor not to move for a downward departure. The Eighth Circuit held that defendant did not make a substantial threshold showing that the government improperly refused to make a § 5K1.1 motion. The plea agreement was nullified by defendant’s withdrawal of his guilty plea; therefore, the district court properly ignored it. The government stated at sentencing that the assistance provided by defendant turned out to be unreliable, and described it as having negative value. U.S. v. Johnigan, 90 F.3d 1332 (8th Cir. 1996).
8th Circuit says government’s failure to move for departure below mandatory minimum not grounds for plea withdrawal. (712) The government moved for a § 5K1.1 departure from the guidelines, but did not move under 18 U.S.C. § 3553(e) for a departure below the mandatory minimum. Defendant argued that the district court abused its discretion in refusing to hold an evidentiary hearing before denying his motion to withdraw his guilty plea. The Eighth Circuit disagreed, since defendant failed to state a legally sufficient basis for withdrawing his plea. His plea agreement specifically stated that the government had sole discretion to make or withhold a downward departure motion, and that the government’s failure to make either a § 5K1.1 motion or a § 3553(e) motion did not present grounds for defendant to withdraw his plea. Moreover, defendant had a full opportunity to present evidence regarding his alleged good faith cooperation and the government’s alleged bad faith. U.S. v. Wojcik, 60 F.3d 431 (8th Cir. 1995).
8th Circuit finds no error in refusal to depart below mandatory minimum. (712) Defendant argued that the district court mistakenly construed his motion for a downward departure as made under § 5K1.1, rather than § 5K2.11. Because the government did not move for a departure, the district court believed it lacked authority to depart downward. The 8th Circuit found no error. The statute that defendant violated, 21 U.S.C. § 841(b)(1)(B)(vii), carries a mandatory minimum sentence of five years. A district court may depart below a statutory mandatory minimum sentence only upon a government motion under 18 U.S.C. § 3553(e). Because there was no such motion, the district court could not depart below the mandatory minimum sentence. U.S. v. Pinson, 24 F.3d 1056 (8th Cir. 1994).
8th Circuit says failure to make substantial assistance motion did not breach plea agreement. (712) Defendant claimed that the government breached his plea agreement by failing to move for a substantial assistance departure. He argued that he cooperated to the best of his ability, and the motion should not be withheld simply because the government decided he had not substantially assisted in any other prosecution. The 8th Circuit rejected defendant’s claim, finding no distinction between “cooperation” as used in the agreement and “substantial assistance” as used in § 5K1.1. The agreement requires cooperation that amounts to substantial assistance. The government retained the sole discretion to determine whether to file the motion. Defendant did not allege that the government had an unconstitutional motive or that the government acted in bad faith. U.S. v. Kelly, 18 F.3d 612 (8th Cir. 1994).
8th Circuit reverses § 5K2.0 departure for cooperation absent government motion. (712) Although the government did not move for a downward departure based on defendant’s cooperation, the district court departed under section 5K2.0, stating that defendant’s cooperation was unusual because it exposed her to “ostracism” and “suspicion” within her extended family. The 8th Circuit reversed, finding these repercussions were considered by the Sentencing Commission in formulating section 5K1.1. Furthermore, defendant’s subjective belief that she had complied with the terms of her cooperation agreement was relevant only to the question of whether she did comply, which is merely a factor a district court should consider when determining the extent of a departure under section 5K1.1. U.S. v. Baker, 4 F.3d 622 (8th Cir. 1993).
8th Circuit forbids departure for informing on relatives absent government motion. (712) Defendant provided the government with information about her family’s involvement in drug crimes, but the government concluded that defendant’s efforts were not meaningful enough to justify filing a motion for a downward departure. Nevertheless, the district court departed, concluding that defendant’s informing on family members subjected her to ostracism and suspicion and caused her “subjectively” to feel that she had adequately cooperated. The 8th Circuit reversed. Section 5K1.1’s recognition of the injury or danger of injury as a relevant factor in determining the scope of a substantial assistance motion indicated that the factors relied on by defendant are adequately considered by section 5K1.1 and therefore cannot support a departure under section 5K2.0. U.S. v. Baker, 4 F.3d 622 (8th Cir. 1993).
8th Circuit does not require government to explain failure to move for departure below mandatory minimum. (712) The government moved for a departure below the guideline range under section 5K1.1, but failed to move for a departure below the mandatory minimum sentence. The 8th Circuit refused to inquire into the government’s reasons for refusing to do so. Under Wade v. U.S., 112 S.Ct. 1840 (1992), a court may inquire into the government’s reasons and decide whether they were constitutionally improper, but only if a defendant first makes a “substantial threshold showing” of impropriety. Defendant did not. U.S. v. Hammer, 3 F.3d 266 (8th Cir. 1993).
8th Circuit refuses to review bad faith claim without substantial threshold showing. (712) The 8th Circuit refused to review defendant’s claim that the government acted in bad faith by not moving for a substantial assistance departure. A prosecutor’s refusal to file a substantial assistance motion is re-viewable only when the defendant makes a substantial threshold showing that the refusal was based on an unconstitutional motive or that the refusal was irrational. Defendant failed to make such a showing. U.S. v. Lewis, 3 F.3d 252 (8th Cir. 1993).
8th Circuit says consent to statutory minimum sentence waived challenge to government motion. (712) Although the government moved for a downward departure under section 5K1.1, the district court ruled that in the absence of a government motion under section 3553(e), it lacked discretion to depart below the mandatory minimum 120-month sentence. The 8th Circuit ruled that defendant waived his right to challenge the mandatory minimum sentence since his plea agreement provided he would be sentenced to a minimum of 10 years. By consenting to a specific sentence, defendant waived his right to challenge that sentence on appeal. U.S. v. Livingston, 1 F.3d 723 (8th Cir. 1993).
8th Circuit upholds refusal to depart in absence of government motion. (712) The 8th Circuit found no merit to defendant’s claim that the district court should have departed downward on the basis of his substantial assistance. The district court had no authority to depart under section 5K1.1 absent a government motion. U.S. v. Jones, 994 F.2d 456 (8th Cir. 1993).
8th Circuit reaffirms that departure below mandatory minimum requires motion under 18 U.S.C. 3553(e). (712) The government made a motion for a downward departure under guideline section 5K1.1. Relying on its holding in U.S. v. Rodriguez-Morales, 958 F.2d 1441 (8th Cir.), cert. denied, 113 S.Ct. 375 (1992), the 8th Circuit held that in the absence of a motion under 18 U.S.C. section 3553(e), the district court had no authority to depart below the statutory mandatory minimum sentence of 20 years. Defendant’s plea agreement mentioned only section 5K1.1, not section 3553(e). Moreover, the agreement clearly contemplated a floor of 20 years on any downward departure. Given this, defendant waived his challenge to the constitutionality of interpreting the two substantial assistance provisions differently. U.S. v. Womack, 985 F.2d 395 (8th Cir. 1993).
8th Circuit reverses departure below mandatory minimum absent government’s 3553(e) motion. (712) Defendants were charged with multiple drug trafficking and firearms violations, and pled guilty to possession of a firearm in relation to a drug trafficking crime. The district court departed below the statutory minimum of 60 months based on defendants’ youth, lack of criminal record, small amount of marijuana involved, short duration of trafficking activity, lack of involvement with more serious drugs, and good-faith effort to cooperate with investigating authorities. Based on U.S. v. Rodriguez-Morales, 958 F.2d 1441 (8th Cir.), cert. denied, 113 S.Ct. 375, the 8th Circuit reversed. A sentencing court can depart below the statutory mandatory minimum sentence only if the government files a motion for such a departure pursuant to 18 U.S.C. section 3553(e). U.S. v. Hawley, 984 F.2d 252 (8th Cir. 1993).
8th Circuit affirms lack of discretion to make substantial assistance departure under section 5K2.0. (712) Defendant argued that the government refused his offer to cooperate in exchange for a motion for a substantial assistance departure under section 5K1.1. At sentencing, he moved under section 5K2.0 for a departure on the ground that his willingness to cooperate was not adequately rewarded by a section 3E1.1 reduction for acceptance of responsibility. The 8th Circuit affirmed that the district court lacked authority to depart downward without a government 5K1.1 motion. Although a district court has authority to depart under section 5K2.0 for extraordinary restitution not addressed by section 3E1.1, this does not apply to a claim of substantial assistance or cooperation. Cooperation with the prosecutors simply cannot be sufficiently extraordinary to warrant a departure under section 5K2.0 absent a government motion under section 5K1.1. U.S. v. Aslakson, 982 F.2d 283 (8th Cir. 1992).
8th Circuit refuses to review government’s refusal to make substantial assistance motion. (712) Defendant’s plea agreement provided that the government would advise the court of any substantial assistance provided by defendant, and might, in its sole discretion, move for downward departure under section 5K1.1. At sentencing, the government acknowledged that defendant had cooperated and recommended a sentence near the bottom of his guideline range. However, it declined to make a section 5K1.1 motion or to put on the record its reasons for not making the motion. The 8th Circuit affirmed that in the absence of a government motion, the district court properly denied defendant’s request for a downward departure. Defendant’s plea agreement preserved the government’s discretion not to file a substantial assistance motion. Defendant did not allege that the government refused to file the motion for suspect reasons. U.S. v. Romsey, 975 F.2d 556 (8th Cir. 1992).
8th Circuit affirms that court lacked authority to depart downward based on substantial assistance. (712) Defendant claimed that the district court had the authority to depart downward based on his substantial assistance because the government acted in bad faith in refusing his offer to cooperate in the investigation of other persons. The 8th Circuit rejected this contention. Defendant and the government did engage in plea negotiations pursuant to which defendant made an “off-the-record” statement to authorities naming the persons he knew were engaged in criminal activities. A letter sent to defendant, however, clearly indicated that the purpose of the statement was to enable the government to evaluate whether or not entering into a cooperation agreement was in its best interests. This letter could not have misled defendant into believing that the government would make a motion to depart if he cooperated. Although it was undisputed that defendant wanted to cooperate further with authorities, a desire to cooperate is not the same as substantial assistance. U.S. v. Davila, 964 F.2d 778 (8th Cir. 1992).
8th Circuit, en banc, upholds government motion requirement for substantial assistance departures. (712) Defendants argued that because guideline section 5K1.1 is a policy statement, rather than a guideline, it is not binding on the courts and therefore a court can reject the provision on policy grounds and depart downward in the absence of a government motion. The 8th Circuit, in a divided en banc decision, rejected this argument. Legislative history indicates that the distinction between guidelines and policy statements is meaningful: policy statements are more general in nature than the guidelines. However, the directive to courts to “consider” policy statements does not mean that a court can reject a policy statement if it pleases, but only shows that Congress anticipated that the more general material to be included in a policy statement would frequently be of a nature to illuminate, rather than determine, a proper outcome. Legislative history might support an argument that a certain policy statement was too general to follow or was not drafted to foresee special circumstances in a particular case, but it does not suggest a court may ignore a policy statement simply because it disagrees with the statement. Judge Beam dissented in part, and Chief Judge Lay and Judges McMillian, Heaney and Arnold dissented separately. U.S. v. Kelley, 956 F.2d 748 (8th Cir. 1992) (en banc).
8th Circuit, en banc, upholds its jurisdiction to review government motion requirement. (712) The 8th Circuit, en banc, upheld its jurisdiction to review the district court’s determination that it lacked jurisdiction to depart for substantial assistance in the absence of a government motion. This case did not present an unreviewable refusal to depart, but a determination of whether the district court was correct in its opinion that it had no power to depart. The standard of review was de novo, because the district court’s decision that it had no power to depart was a pure question of law. U.S. v. Kelley, 956 F.2d 748 (8th Cir. 1992) (en banc).
8th Circuit rules government did not act in bad faith in refusing to move for substantial assistance departure. (712) The 8th Circuit affirmed the district court’s determination that the government did not act in bad faith in refusing to move for a downward departure based upon defendant’s substantial assistance. The record showed that defendant would not sign a plea agreement, later refused to provide any assistance to the government, and disputed the facts at trial. U.S. v. Laird, 948 F.2d 444 (8th Cir. 1991).
8th Circuit rules government’s failure to move for downward departure was not arbitrary or in bad faith. (712) The 8th Circuit rejected defendant’s claim that the government’s failure to move for a downward departure was in bad faith and was arbitrary. The government fully complied with the plea agreement, dismissing five of seven charges and detailing defendant’s assistance to the government in a letter to the sentencing court. The court relied upon this letter in sentencing defendant at the bottom of the applicable guideline range. Under the circumstances, the government could not be said to have acted in bad faith or arbitrarily. U.S. v. Drake, 942 F.2d 517 (8th Cir. 1991).
8th Circuit holds district court may not depart downward for substantial assistance without government motion. (712) The 8th Circuit reaffirmed that in the absence of a government motion, a court lacks authority to depart downward based upon a defendant’s substantial assistance. Prior caselaw did leave open the possibility that in an appropriate situation, a defendant might obtain a downward departure in the absence of a government motion if the defendant could prove his substantial assistance to the court. However, such an “appropriate situation” would have to involve “a question of prosecutorial bad faith or arbitrariness that might conceivably present a due process issue.” No due process concerns were raised in defendant’s case. Judge Beam concurred specially to express his “continuing view that § 5K1.1 of the [g]uidelines does not strip a district court of its authority to depart downward for substantial assistance by a defendant in appropriate circumstances” under the general departure authority in the guidelines. U.S. v. Hubers, 938 F.2d 827 (8th Cir. 1991).
8th Circuit upholds failure to depart downward for substantial assistance. (712) Defendant contended that the district court erred in concluding that although defendant may have provided substantial assistance to the government, it could not depart downward in the absence of a government motion. The 8th Circuit, following previous circuit precedent, rejected defendant’s argument that the requirement of a government motion was unconstitutional. Defendant also argued that the government violated his due process rights by withholding in bad faith the motion mandated for departure. The 8th Circuit found that the government had not breached any obligation to the defendant, since there was no evidence that the government had promised defendant it would move to reduce defendant’s sentence if he cooperated. U.S. v. Spees, 911 F.2d 126 (8th Cir. 1990).
8th Circuit, by split vote, upholds requirement of government motion for downward departure for cooperation. (712) The 8th Circuit held that the policy statement of § 5K1.1, which requires a government motion before a court may depart downward based on cooperation, is “binding law because it comports with the directive of 18 U.S.C. § 994(n) and because its requirements coincide with the requirements of § 3553(e).” The court was careful to point out however, that it was not presented with the question of whether the “prosecutor’s arbitrary or bad faith refusal to move for a § 5K1.1 departure violates due process.” Judge Heaney dissented, arguing that § 5K1.1 does not limit courts from departing downward for cooperation even in the absence of a government motion. U.S. v. Gutierrez, 908 F.2d 349 (8th Cir. 1990).
8th Circuit rejects challenges to requirement of government motion for substantial assistance departure. (712) Defendant argued that the requirement of a government motion for substantial assistance departures under § 5K1 violated due process and separation of powers. He also argued that (1) no motion was required because the offense of conviction carried no statutory minimum sentence; (2) the government’s stipulation of facts satisfied the motion requirement; (3) the district court abused its discretion by refusing to depart; and (4) the government’s arbitrary or bad faith refusal to file a motion after stipulating to defendant’s significant cooperation violated his right to due process. The 8th Circuit rejected each of these claims, finding that the last claim was waived by failure to present it in the district court. Judge Heaney concurred, but argued that downward departures can be sustained in certain circumstances even absent a government motion. U.S. v. Oransky, 908 F.2d 307 (8th Cir. 1990).
8th Circuit holds that district court’ refusal to grant substantial assistance departure is not reviewable on appeal. (712) Defendant agreed after the trial to cooperate in the government’s investigation of drug trafficking. He asserted that he made a good faith effort to provide substantial assistance to the government, and claimed that the district court therefore erroneously refused to reduce the sentence under § 5K1.1. The 10th Circuit held that the district court’s refusal to depart under that section was nonreviewable and even if it were that the court had no authority to even consider a downward departure because the government had not made a motion as required by that section. However, the court noted that a motion by the government may not be necessary if the government’s refusal to make such a motion had violated the defendant’s right to due process, a claim which was not alleged in this case. U.S. v. Dobynes, 905 F.2d 1192 (8th Cir. 1990).
8th Circuit holds that government motion is required for substantial assistance departure. (712) The government reached an agreement with the defendant to drop all but one count carrying a minimum of one year in prison, in exchange for defendant’s promise of future cooperation. The government also agreed to inform the district court of the cooperation. In accordance with the agreement, the government sent letters to the district court detailing the cooperation, but consistently refused to file a motion for downward departure pursuant to 18 U.S.C. § 3553(e). The district court found the letters to be the functional equivalent of a § 3553(e) motion and imposed sentences below the guideline range. The 8th Circuit reversed, holding that the requirement for a government motion is clear and unambiguous. The government’s letters did not constitute a motion. Nor could the defendant reasonably read the plea agreement to require the government to file such a motion. U.S. v. Coleman, 895 F.2d 501 (8th Cir. 1990).
8th Circuit holds that “substantial assistance” departure requires government motion. (712) A drug defendant appealed his sentence claiming that because he gave the government information concerning his sources and acted as an informant he was entitled to a departure based upon substantial assistance (§ 5K1.1). The 8th Circuit disagreed, holding that such a reduction must be predicated on a motion by the government, which was lacking here. The court found no bad faith or arbitrariness here which would raise a due process issue regarding the refusal of the government to make such a request. U.S. v. Smitherman, 889 F.2d 189 (8th Cir. 1989).
8th Circuit holds that substantial assistance section does not violate due process. (712) Defendant’s request for a downward departure for substantial assistance was denied because the government refused to move for a departure. On appeal, the 8th Circuit rejected defendant’s claims that the substantial assistance guideline, § 5K1.1, violates due process. It does not compromise judicial integrity, nor is the section contrary to the authorizing legislation, 28 U.S.C. § 994(n) and 18 U.S.C. § 3553(e). U.S. v. Grant, 886 F.2d 1513 (8th Cir. 1989).
8th Circuit holds “substantial assistance” departure may be granted even in absence of government motion. (712) Section 5K1.1 provides that a downward departure due to substantial assistance is proper only upon motion of the government. The 8th Circuit stated that although the section may be unconstitutional or contrary to Congressional directives because a defendant appears to have no means to challenge the government’s refusal to file such a motion, the facts of this case did not warrant relief. Although the government stipulated to facts which revealed that the defendant did in fact provide some assistance to the government, that assistance was compensated for by the government’s decision not to charge him with an offense which carried a minimum mandatory sentence. Nevertheless, the court concluded that in an appropriate case, a court may grant a defendant’s motion for a substantial assistance reduction even in the absence of a government motion. U.S. v. Justice, 877 F.2d 664 (8th Cir. 1989), abrogated on other grounds by U.S. v. Hall, 7 F.3d 1394 (8th Cir. 1993).
9th Circuit upholds government’s decision not to file substantial assistance motion. (712) Defendant pleaded guilty to drug-trafficking offenses pursuant to an agreement that provided that the government would move for a downward departure under § 5K1.1 if he provided substantial assistance. The agreement also provided that defendant was not entitled to have the government file a substantial-assistance departure motion and that the government would not file a motion if defendant provided untruthful, incomplete, or insubstantial information. Defendant provided truthful information to government agents, but at sentencing the government declined to file a § 5K1.1 motion because the assistance defendant provided had not resulted in any arrests or indictments and was therefore insubstantial. The Ninth Circuit held that the district court did not err in declining to hold an evidentiary hearing to inquire into the reasons that the information defendant provided had not resulted in arrests or indictments and that the government had fulfilled its obligation to assess defendant’s cooperation in good faith. U.S. v. Flores, 559 F.3d 1016 (9th Cir. 2009).
9th Circuit rejects argument that court can depart down for substantial assistance without government motion. (712) A panel of the District of Columbia Circuit, in In re Sealed Case (Sentencing Guidelines’ “Substantial Assistance”), 149 F.3d 1198 (D.C. Cir. 1998), held that the Supreme Court’s decision in Koon v. U.S., 518 U.S. 81 (1996), enabled district courts to depart downward for substantial assistance under § 5K1.1 without a government motion. However, after the present appeal was filed, the District of Columbia Circuit took the case en banc, and vacated and overruled the panel decision. See 181 F.3d 128 (D.C. Cir. 1999) (en banc). In the present case, the Ninth Circuit agreed with the District of Columbia Circuits’ unanimous en banc decision that the Sentencing Commission clearly intended to limit such departures to situations in which the government requests a departure. The Fifth and Sixth Circuits are in accord. See U.S. v. Solis, 169 F.2d 224 (5th Cir. 1999) and U.S. v. Abuhouran, 161 F.3d 206 (3d Cir. 1998). Therefore, in the absence of arbitrariness or unconstitutional motivation on the part of the government, the district court may not depart downward for substantial assistance absent a government motion. U.S. v. Cruz-Guerrero, 194 F.3d 1029 (9th Cir. 1999).
9th Circuit says plea agreement did not require government to file departure motion. (712) Defendant’s plea agreement said that the U.S. Attorney’s Office “is willing to consider future cooperation by you in determining whether any such motions for departure are appropriate. You understand that any decision to move for a reduction of your sentence is within the discretion of this office.” Defendant argued that this gave the government discretion not to move for a reduction of a previously imposed sentence, but did not allow discretion regarding a downward departure. The Ninth Circuit rejected the argument, holding that this paragraph, in conjunction with an earlier paragraph, demonstrated that “motions for departure” that may be appropriate if the government decides to file them included motions for downward departure as well as motions for reductions of previously imposed sentences. Thus the plea agreement on its face did not require the government to file a substantial assistance motion. U.S. v. Mikaelian, 168 F.3d 380 (9th Cir. 1999).
9th Circuit remands to decide if defendant breached plea agreement or government acted in bad faith. (712) Defendant argued, and the government conceded, that remand was required for the court to make a factual finding as to whether defendant breached the plea agreement by failing fully to cooperate. “Although the government has the discretion to decide whether to file the motion, it does not have the last and only word on whether a defendant provided substantial assistance.” If on remand, the defendant protests that he did indeed cooperate and that the government is acting in bad faith in refusing to file a motion, a factual dispute arises, and the district court can determine whether in fact the defendant did provide substantial assistance as part of the bad faith determination.” U.S. v. Mikaelian, 168 F.3d 380 (9th Cir. 1999).
9th Circuit says government misconduct permits substantial assistance departure even absent motion. (712) Before and after defendant’s plea, the government refused defense counsel’s offers for defendant to cooperate in return for a downward departure. Instead, after defendant pled guilty, the government subpoenaed him to testify before the grand jury without notifying defense counsel. Defendant contacted his lawyer who promised to talk to the Assistant U.S. Attorney, but counsel’s calls to the prosecutor were not returned and he was unable to reach defendant because the government had moved him to another prison facility. Defendant then testified before the grand jury, “apparently assuming that his lawyer had reached the prosecutor and that the government would move for the downward departure mentioned at the plea proceedings.” On appeal, the government admitted that “contact with [defendant] should have [ ] occurred only after authorization by his counsel.” The 9th Circuit held that “because the government’s admitted misconduct prevented [defendant] from obtaining the benefit of his right to counsel, the district court had authority to grant a §5K1.1 departure despite the government’s refusal to request one.” U.S. v. Treleaven, 35 F.3d 458.(9th Cir. 1994).
9th Circuit rejects departure for substantial assistance to state, absent government motion. (712) Defendant was arrested on state marijuana charges, and moved to unseal the search warrant. To protect other investigations, the state agreed to charge defendant with no more than a misdemeanor in exchange for his agreement to withdraw his motion. He agreed, and several months later he and others were charged in federal court with involvement in a large scale drug trafficking operation. He pled guilty and the district court denied his request for a downward departure under §5K1.1 for the assistance he gave the state in its investigation when he agreed to withdraw his motion to unseal the search warrant. On appeal, the 9th Circuit affirmed, ruling that the court had no authority to grant the departure absent a government motion. Nor could the district court rely on §5K2.0 because the Commission plainly took into account assistance to authorities in formulating §5K1.1. However, because it was unclear whether the government knew that a substantial assistance motion could be based on assistance to state authorities, the court said the government would be free to make the motion on remand. U.S. v. Emery, 34 F.3d 911 (9th Cir. 1994).
9th Circuit says Commission did not exceed its authority by requiring a government motion. (712) Defendant argued that the Sentencing Commission exceeded its authority by requiring a government motion before the district court can depart downward for substantial assistance under guideline section 5K1.1. The 9th Circuit rejected the argument, finding “no reason why a government motion requirement frustrates the goal of 28 U.S.C. section 994(n).” “Obviously the best judge of a defendant’s assistance to the government is the government itself.” U.S. v. Cueto, 9 F.3d 1438 (9th Cir. 1993).
9th Circuit remands to clarify reasons for government’s refusal to move for substantial assistance departure. (712) The government refused to move for a downward departure, stating that the defendants had not provided any useful assistance, and that the assistance of a third party, such as a defendant’s sister, would be an inappropriate basis for departure. Nevertheless, the district court departed downward, stating that the “factors that are being considered here are ones that are violative of due process and equal protection,” and “I have no reason to believe that they have not provided substantial cooperation, substantial assistance that they are capable of supplying.” Relying on Wade v. U.S., 112 S.Ct. 1840 (1992), the 9th Circuit noted that a district court can grant relief if it finds that the prosecutor’s refusal to move for a substantial assistance departure “was based upon an unconstitutional motive, such as race or religion or that the refusal was not rationally related to any legitimate state objective.” The 9th Circuit said that in this case “there is some indication of an unconstitutional basis for the government’s refusal.” Accordingly, the sentences were vacated and the case was remanded to the district court with instructions to the court to “clarify the legal basis of its sentencing decision.” U.S. v. Delgado-Cardenas, 974 F.2d 123 (9th Cir. 1992).
9th Circuit reverses departure below the mandatory minimum. (712) The 9th Circuit said that in the absence of a government motion for a downward departure, the district court is “presumptively without power to circumvent the mandatory minimum.” The court followed the Eighth and Tenth circuits in holding that absent improper motivation or a constitutional violation the federal courts will not attempt to supervise the prosecutor’s decision to treat one defendant differently than another. U.S. v. Vilchez, 967 F.2d 1351 (9th Cir. 1992).
9th Circuit reverses downward departure for cooperation in absence of government motion. (712) Reaffirming its ruling in U.S. v. Mena, 925 F.2d 354, 355 (9th Cir. 1991) the 9th Circuit stated that the requirement for a government motion in 5K1.1 “might not apply if the prosecution has acted with ‘bad faith or arbitrariness that might conceivably present a due process issue.’” But simply because the government determined defendant had not been truthful in his dealings with it, despite the defendant’s acquittal on the perjury charge, “does not, without more, render the government’s decision arbitrary or demonstrate that it was made in bad faith.” Moreover the court ruled that departure under 5K2.0 for cooperation with the government was inappropriate because this would “render meaningless § 5K1.1’s requirement that any downward departure based on substantial cooperation be premised on a motion for such departure by the government.” Finally the court found nothing in the plea agreement requiring the government to move for a downward departure. Accordingly the sentencing was vacated. U.S. v. Goroza, 941 F.2d 905 (9th Cir. 1991).
9th Circuit requires government motion for “substantial assistance” departures. (712) The 9th Circuit held that a government motion is ordinarily required before a court may depart downward for substantial assistance under Section 5K1.1. Here the district court took into account the defendant’s cooperation, among other factors, in departing downward pursuant to § 5K2.0. Thus the defendant did receive some benefit as a result of his cooperation. Agreeing with the 8th Circuit, the court concluded “that while there may be extreme situations in which the defendant’s reliance on the government’s inducements may permit a downward departure in the absence of a government motion, this is not such a case.” The court said that a departure based exclusively upon cooperation with the government in this case “would have amounted to unwarranted interference with the discretion committed to the prosecution under 5K1.1.” U.S. v. Mena, 925 F.2d 354 (9th Cir. 1991).
9th Circuit holds downward adjustment for “substantial assistance” does not violate due process or separation of powers. (712) Defendant argued that 18 U.S.C. 3553(e) and guideline § 5K1.1 violate the doctrine of separation of powers because the downward adjustment for “substantial assistance” is available only on motion of the government. He also argued that it violated due process. The 9th Circuit rejected both arguments, agreeing with the 11th Circuit that there is no “constitutional right” to the availability of a substantial assistance provision and “hence no grounds upon which to challenge Congress’ manner of en-acting it.” Moreover “it was rational for Congress to lodge some sentencing discretion in the prosecutor, the only individual who knows whether a defendant’s cooperation has been helpful.” U.S. v. Ayarza, 874 F.2d 647 (9th Cir. 1989).
10th Circuit upholds withdrawal of motion for additional one-level acceptance reduction. (712) Defendant pled guilty to mailing a threatening letter to a state trial judge. The government initially moved for a one-level reduction for acceptance of responsibility under § 3E1.1(b). However, six days after the plea hearing, the sentencing judge received a threatening letter from defendant. A forensic psychologist concluded that defendant was “currently suffering from a mental disease or defect rendering him mentally incompetent.” Seven months defendant regained competency. At sentencing, the district court applied the two-level acceptance of responsibility reduction, but allowed the government to withdraw its request for the additional one-point reduction. The Tenth Circuit rejected defendant’s claim that that the government violated his right to due process by withdrawing the motion. Defendant did not identify any impermissible factor animating the government’s decision. Although the district court apparently believed that defendant was not criminally responsible when he wrote the letter, the government could reasonably believe that his writing a new threatening letter to a judge evinced a failure to accept responsibility for the very similar crime for which he had pleaded guilty. U.S. v. Naramor, 726 F.3d 1160 (10th Cir. 2013).
10th Circuit upholds denial of motion to compel filing of substantial assistance motion. (712) In defendant’s plea agreement, the parties stated: “There has been information provided to this United States Attorney’s Office this week, by counsel for defendant, which may, at some future time, result in a post-conviction motion by the United States to reduce the defendant’s sentence.” Defendant argued for the first time on appeal that this quoted language constituted an admission by the government that it had received substantial assistance from him and that the language required the government to move for the substantial assistance departure. Given the use of permissive language in the agreement (“may be filed”), and the absence of any language suggesting that the government’s discretion was intended to be circumscribed in any manner, the Tenth Circuit concluded that the district court did not commit plain error in denying defendant’s motion to compel. U.S. v. Korman, 251 F.3d 893 (10th Cir. 2001), superseded by statute on other grounds as stated in U.S. v. Kostakis, 364 F.3d 45 (2d Cir. 2004).
10th Circuit rules defendant did not prove that refusal to file § 5K1.1 motion was based on unconstitutional motive. (712) Defendant argued that the prosecutor’s refusal to move for a § 5K1.1 departure “was not rationally related to any legitimate government end” and was motivated by retaliation for his assertion that the government breached its promise concerning restitution. He pointed to the “stark contrast” between his treatment and the treatment of co-conspirator Kelleher, who received the motion despite providing less assistance than defendant did. The Tenth Circuit ruled that defendant did not prove that the refusal was based on an unconstitutional motive. The prosecutor explained that he believed the early cooperation of Kelleher caused defendant and another co-conspirator to decide to plead guilty. At the time Kelleher offered to cooperate, defendant and the co-conspirator were still planning on going to trial. Kelleher’s situation was clearly distinguishable from defendant’s, whose willingness to cooperate came too late to assist the government. The record was devoid of evidence that the information defendant provided was of substantial assistance to the government. In addition to the prosecutor’s assessment to that effect, the FBI agents involved in the investigation also shared this view. Finally, there was no evidence linking the prosecutor’s decision on the § 5K1.1 motion to defendant’s claim that the government breached the plea agreement. U.S. v. Berger, 251 F.3d 894 (10th Cir. 2001).
10th Circuit holds that there is no “egregious case” exception to government motion requirement. (712) As a general rule, a district court’s authority to consider a defendant’s substantial assistance claim is conditioned upon a prior motion of the government. In U.S. v. Kuntz, 908 F.2d 655 (10th Cir. 1990), overruled on other grounds by Melendez v. U.S., 518 U.S. 120 (1996), the Tenth Circuit identified the “egregious case exception” to the government motion requirement, suggesting that a court might be able to depart “where the prosecution stubbornly refuses to file a motion despite overwhelming evidence that the accused’s assistance has been so substantial as to cry out for meaningful relief.” Here, the Tenth Circuit held that the “egregious case exception” did not survive the Supreme Court’s decision in Wade v. U.S., 504 U.S. 181 (1992). Under Wade, a district court’s authority to review the government’s refusal to file a substantial assistance motion is limited to determining whether the decision was: (1) animated by an unconstitutional motive, or (2) not rationally related to a legitimate government end. In departing here, the district court improperly focused on the level of defendant’s assistance to state authorities. Moreover, the government’s refusal to file the motion was rationally related to several legitimate government ends, including giving finality to the results of plea negotiations and agreements which do not contain a cooperation provision but significantly reduce the defendant’s sentencing exposure. U.S. v. Duncan, 242 F.3d 940 (10th Cir. 2001).
10th Circuit holds that Koon does not authorize substantial assistance departures under § 5K2.0. (712) Defendant filed a motion requesting a downward departure for substantial assistance, even though the government did not file a § 5K1.1 motion. He claimed that under Koon v. United States, 518 U.S. 81 (1996), a sentencing court may grant a substantial assistance departure under § 5K2.0. The Tenth Circuit held that even after Koon, a court may not grant a substantial assistance departure under § 5K2.0 because departures for substantial assistance are already “adequately taken into consideration by the Sentencing Commission in formulating the guidelines,” specifically in § 5K1.1. There are no grounds under Koon for treating substantial assistance as a factor appropriate for consideration under § 5K2.0. Numerous other circuits are in agreement. See, e.g. U.S. v. Cruz-Guerrero, 194 F.3d 1029 (9th Cir. 1999); U.S. v. Algeria, 192 F.3d 179 (1st Cir. 1999); In re Sealed Case, 181 F.3d 128 (D.C. Cir. 1999). U.S. v. Maldonado-Acosta, 210 F.3d 1182 (10th Cir. 2000).
10th Circuit says failure to make § 5K1.1 motion not breach of plea agreement. (712) Defendant signed a plea agreement stating that “if, in the sole discretion of the government, my assistance is found to be substantial, the government will file a motion for a downward departure” under § 5K1.1. She testified on behalf of the government at the joint trial of two co-conspirators, providing testimony that the government characterized as “helpful” and “very credible.” However, the jury was unable to reach a verdict as to one co-conspirator. For some reason, defendant was not notified as to the date of this co-conspirator’s second trial, and thus did not provide testimony as she had at the first trial. Because she did not testify in the second trial, the government refused to move for a downward departure, instead recommending a sentence at the low end of the guideline range. The Tenth Circuit held that the government’s refusal to move for a downward departure did not breach the plea agreement. The government retained its discretion, in clear and unambiguous language, to determine whether defendant’s assistance was substantial. The government made its determination based on defendant’s failure to testify at the co-conspirator’s second trial. The government did not act in bad faith. U.S. v. Cerrato-Reyes, 176 F.3d 1253 (10th Cir. 1999).
10th Circuit lacks jurisdiction to review failure to move for § 5K1.1 departure. (712) Defendant argued that the government violated his plea agreement and acted in bad faith in refusing to move for a § 5K1.1 departure. The Tenth Circuit held that it lacked jurisdiction over the claim. The plea agreement provided that the decision whether to file a substantial assistance motion resided within the “sole and exclusive discretion” of the prosecutor. Defendant did not allege that the government had an unconstitutional motive for its refusal to file the motion. U.S. v. Hawley, 93 F.3d 682 (10th Cir. 1996).
10th Circuit finds plea agreement did not obligate government to move for substantial assistance departure. (712) The 10th Circuit held that defendant’s plea agreement did not require the government to move for a §5K1.1 substantial assistance departure. In a letter to defendant after his arrest, the government stated that if the U.S. Attorney’s office determined that he had provided substantial assistance, it would give “serious consideration” to filing such a motion. However, a subsequent letter advised defense counsel that defendant’s ability to assist had been compromised by defendant’s disclosure of his arrest to his wife and nephew. The plea agreement subsequently executed stated only that the extent of defendant’s cooperation would be made known to the court. The agreement stipulated that it superseded any and all other agreements. At the plea hearing, defendant denied that anyone had made any other promises to him. U.S. v. Massey, 997 F.2d 823 (10th Cir. 1993).
10th Circuit upholds government motion requirement for substantial assistance departure. (712) The 10th Circuit rejected defendant’s claim that the district court should have been permitted to consider his assistance to the government notwithstanding the government’s failure to move for a downward departure under section 5K1.1. Defendant waived his claim that the government improperly denied the motion based on defendant’s exercise of his constitutional right to a jury trial. This fact-dependent issue should have been raised below. Judge Seymour dissented. U.S. v. Easter, 981 F.2d 1549 (10th Cir. 1992).
10th Circuit rules that court lacked authority to make substantial assistance departure where government did not make motion. (712) The 10th Circuit rejected defendant’s claim that he should have received a downward departure based upon his substantial assistance, since the government did not make a motion under section 5K1.1. Lack of such a motion is a jurisdictional bar to a downward departure under section 5K1.1. This was not an egregious case where the prosecution stubbornly refused to file a motion despite overwhelming evidence that the accused’s assistance was substantial. There was no merit to defendant’s claim that the government agreed to make such a motion as part of its plea negotiations. The government denied making such an agreement, and defendant’s plea agreement did not bind the government to make such a motion. Defendant agreed at his plea hearing that the plea agreement was the only agreement between him and the government, and could not now claim that there was an undisclosed oral agreement between them. U.S. v. Gines, 964 F.2d 972 (10th Cir. 1992).
10th Circuit says court cannot depart downward under Rule 35 without government motion. (712) The 10th Circuit held that the district court lacked jurisdiction to depart downward under Fed. R. Crim. P. 35(b) in the absence of a government motion. Given the similarity between Rule 35(b) and guideline section 5K1.1, the analysis of the two provision’s requirements of a government motion is the same. The court refused to review defendant’s claim that the government’s failure to file such a motion violated a post-trial agreement with him, since defendant failed to raise this issue below. U.S. v. Perez, 955 F.2d 34 (10th Cir. 1992).
10th Circuit rules government motion is a jurisdictional prerequisite to § 5K1.1 downward departure. (712) The government provided the court with a confidential memorandum detailing defendant’s cooperation. However, it did not move for a downward departure from the minimum guideline range under guideline § 5K1.1. The 10th Circuit rejected defendant’s argument that the district court had misapplied the guidelines by holding that it lacked jurisdiction to depart in the absence of a government motion. “We have repeatedly held that a government motion is a jurisdictional prerequisite to a § 5K1.1 downward departure from the guidelines.” The fact that defendant was requesting a departure below the guidelines, rather than a statutorily imposed minimum sentence, did not change the analysis. U.S. v. Long, 936 F.2d 482 (10th Cir. 1991).
10th Circuit finds no breach of plea agreement in government failure to move for downward departure. (712) The 10th Circuit rejected defendant’s argument that the government breached her plea agreement by not recommending a downward departure. The government promised only to dismiss one count in exchange for defendant’s information and future testimony. The government retained absolute discretion to determine whether defendant’s cooperation merited a downward departure under § 5K1.1. Defendant was unable to participate in a controlled buy, because the district court denied a joint motion to release her from custody. “It was not unreasonable for the government to conclude that, in the absence of the controlled buy, defendant’s cooperation did not amount to substantial assistance.” Although the government admitted that it was aware that the district court did not favorably view using defendants in undercover situations, there was no evidence that the government acted in bad faith. The district court had no authority to depart in the absence of a government motion. U.S. v. Vargas, 925 F.2d 1260 (10th Cir. 1991).
10th Circuit vacates sentence where district court declared guideline 5K1.1 violative of separation of powers. (712) The district court held that guideline § 5K1.1 violated the separation of powers doctrine. Therefore, even though the government never filed a motion, the district judge held an evidentiary hearing to determine whether defendant had in fact “made a good faith effort to provide substantial assistance” to the government. After determining that he had, the district court departed downward from the mandatory five year sentence and sentenced defendant to two years imprisonment. The 10th Circuit vacated the sentence and remanded for resentencing. Recent 10th Circuit cases clearly hold that the guideline does not violate due process. The argument that the guideline violated the separation of powers doctrine was “merely a variant of the due process claim.” U.S. v. Snell, 922 F.2d 588 (10th Cir. 1990).
10th Circuit upholds constitutionality of substantial assistance provisions. (712) Defendant argued that 18 U.S.C. § 3553(e) and guideline § 5K1.1 violated his 5th Amendment due process rights by preventing a court from departing downward for substantial assistance in the absence of a government motion. Following recent Circuit cases, the 10th Circuit rejected this argument. U.S. v. Deases, 918 F.2d 18 (10th Cir. 1990).
10th Circuit finds that requirement of government motion for departure for substantial assistance does not violate due process. (712) Defendant argued that 18 U.S.C. § 3553(e) violates due process to the extent it only permits a court to sentence a defendant below the statutory minimum upon the filing of a motion by the government. The 8th Circuit rejected this argument. Defendant had no constitutional right to have his assistance to the government considered in setting his sentence, and Congress could have precluded the courts from considering this factor altogether. The 8th Circuit also rejected defendant’s argument that due process required judicial review of a prosecutor’s decision not to file a § 5K1.1 motion. Although the court conceded that in an “egregious case” such review was possible, defendant’s case was not egregious. The fact that the government filed a motion in a co-defendant’s case did not require a similar motion in defendant’s case. U.S. v. Sorensen, 915 F.2d 599 (10th Cir. 1990).
10th Circuit holds that government’s confidential memorandum was not the “functional equivalent” of a motion to depart for substantial assistance. (712) The government submitted a confidential memorandum to the district court which indicated that defendant supplied information that assisted the government in indicting additional suppliers of heroin and cocaine. Defendant argued that this memorandum was the “functional equivalent” of a government motion to depart for substantial assistance under guideline § 5K1.1 The 10th Circuit refused to adopt defendant’s “functional equivalent” doctrine, and found that the trial court’s authority to grant a 5K1.1 reduction requires an actual motion by the prosecution. U.S. v. Brown, 912 F.2d 453 (10th Cir. 1990).
10th Circuit holds that government is not obligated to move for departure based on defendant’s assistance. (712) Defendant argued that his assistance in the prosecution of a codefendant required the government to move for a downward departure. The 10th Circuit rejected this argument, noting that under the application notes to guideline § 5K1.1, “substantial weight should be given to the government’s evaluation of the extent of the defendant’s assistance, particularly where the extent and value of the assistance are difficult to ascertain.” U.S. v. Mesa-Rincon, 911 F.2d 1433 (10th Cir. 1990).
10th Circuit holds that substantial assistance departure provision does not violate separation of powers or due process. (712) Defendant argued that the requirement for a government motion before a court can depart downward based on a defendant’s substantial assistance, violated due process. The 10th circuit disagreed, finding that because defendant had no Constitutional right to the availability of a substantial assistance departure, he had no grounds on which to challenge Congress’s manner of enacting it. The court acknowledged that an egregious case might require a court to provide some “corrective action” but stated that such cases should be rare. The court found that the separation of powers argument urged by the defendant was merely rejected for the same reasons. U.S. v. Kuntz, 908 F.2d 655 (10th Cir. 1990), overruling on other grounds recognized by U.S. v. Duncan, 242 F.3d 940 (10th Cir. 2001).
11th Circuit finds government did not retaliate for defendant’s exercising right to jury trial. (712) Defendant argued that the government refused to file a motion to reduce his sentence under § 5K1.1 to punish him for exercising his 6th Amendment right to a jury trial. The Eleventh Circuit found it unnecessary to decide whether refusing to file a § 5K1.1 motion because the defendant exercised his right to a jury trial would constitute an unconstitutional motive, because, in this case, the government’s refusal to file the motion was not based on defendant’s exercising his right to a jury trial. Indeed, the government’s substantial assistance offer was expressly conditioned on defendant’s cooperation and entry of a guilty plea. U.S. v. Dorsey, 554 F.3d 958 (11th Cir. 2009).
11th Circuit bars refusal to file substantial assistance motion in retribution for exercising right to jury trial. (712) Defendant argued that the government refused to file a motion to reduce his sentence under § 5K1.1 to punish him for exercising his 6th Amendment right to a jury trial. The Eleventh Circuit held that refusing to file a § 5K1.1 motion because the defendant exercised his right to a jury trial constitutes an unconstitutional motive. However, the court was unable to determine what happened in this case because of insufficient fact-finding, so it remanded the case for a new sentencing hearing. On remand, the court should determine whether defendant could make a “substantial showing” that the government’s refusal to file the substantial assistance motion was based on an unconstitutional motive. U.S. v. Dorsey, __ F.3d __ (11th Cir. Jan. 14, 2008) No. 06-16698.
11th Circuit holds that refusal to file substantial assistance motion in retribution for exercising right to jury trial is unconstitutional motive. (712) Defendant argued that the government refused to file a § 5K1.1 motion to punish him for exercising his Sixth Amendment right to a jury trial, thereby denying him due process of law. The Eleventh Circuit held that the government’s refusal to file a § 5K1.1 motion because the defendant exercised his right to a jury trial constitutes an unconstitutional motive. However, it was unable to determine if that is what took place here because of insufficient fact-finding. The district court denied defendant’s motion without explanation. Therefore, the appellate court could not be certain that the district court believed that it had the authority to depart downward absent a motion by the government. On remand, defendant has the burden of showing prosecutorial vindictiveness. There is no presumption of vindictiveness, since the government proffered legitimate reasons for its failure to file the § 5K1.1 motion (defendant’s assistance was not substantial and he started dealing drugs again). Defendant will have to prove actual vindictiveness on remand. U.S. v. Dorsey, 497 F.3d 1221 (11th Cir. 2007), vacated and superseded by U.S. v. Dorsey, __ F.3d __ (11th Cir. Jan. 14, 2008) No. 06-16698.
11th Circuit rejects departure based on combination of improper factors. (712) The district departed downward based on a combination of factors. Because several of the grounds relied upon by the district court were impermissible grounds for a departure, the Eleventh Circuit remanded for resentencing. Under U.S. v. Kim, 364 F.3d 1235 (11th Cir. 2004), extraordinary remorse and restitution is a discouraged but not prohibited ground for departure. The district court did not have the benefit of Kim when it made its ruling, and the appellate court would not speculate how the district court would have weighed the Kim factors. Under § 2F1.1, the use of sophisticated means is penalized with an enhancement. Therefore, lack of criminal sophistication is not a ground for departure; a defendant who does not use sophisticated means simply avoids the enhancement. The government did not move for a § 5K1.1 departure; therefore, any assistance defendant provided was not a permissible ground for departure. Finally, while departure may be proper where the loss overstates the defendant’s criminality, the other improper factors considered by the court required remand. U.S. v. Crawford, 407 F.3d 1174 (11th Cir. 2005).
11th Circuit limits review of refusal to file substantial assistance motion to claims of unconstitutional motive. (712) The government conceded that defendant provided substantial assistance in participating in controlled drug buys and testifying against his supplier. However, the government did not file a § 5K1.1 motion because five days after testifying, defendant was arrested for possessing with intent to distribute cocaine base. The Eleventh Circuit ruled that the government’s refusal to file a § 5K1.1 motion did not violate due process. Under 18 U.S.C. § 3553(c) and USSG § 5K1.1, the government has “a power, not a duty, to file a motion when a defendant has substantially assisted.” Wade v. United States, 504 U.S. 181 (1992). Defendant did not allege an unconstitutional motive; instead, defendant argued that the government could not refuse to file a substantial assistance motion for “reasons other than the nature of [defendant’s] substantial assistance.” However, this contention was not supported by Wade and was contrary to the broad grant of prosecutorial discretion recognized by the Eleventh Circuit. To the extent the Eighth Circuit has held otherwise, see U.S. v. Anzalone, 148 F.3d 940, reh’g. en banc granted, opinion vacated, 148 F.3d 940, opinion reinstated, reh’g. en banc denied, 161 F.3d 1125 (8th Cir. 1998), the panel expressly rejected that approach and ruled that it would limit its review of the government’s refusal to file substantial assistance motions to claims of unconstitutional motive. U.S. v. Nealy, 232 F.3d 825 (11th Cir. 2000).
11th Circuit says bare allegation of bad faith is not sufficient to permit § 5K1.1 departure. (712) Defendant claimed that the government’s refusal to make a § 5K1.1 substantial assistance motion violated his plea agreement. The plea agreement required the government to exercise “good faith” in deciding whether defendant had provided substantial assistance. The Eleventh Circuit held that defendant’s bare allegation of bad faith was insufficient to require specific performance of the plea agreement. Defendant testified at his sentencing hearing that he assisted the government in four ways, three of which did not yield results and were therefore insubstantial. There was no evidence that the government’s failure to consider defendant’s assistance was in bad faith. In order to obtain an evidentiary hearing on his motion for specific performance, defendant must produce evidence of bad faith before the government has a duty to respond. Defendant was permitted to testify. Because he did not put forth sufficient evidence that he had substantially assisted, he was not entitled to be heard further. U.S. v. Gonsalves, 121 F.3d 1416 (11th Cir. 1997).
11th Circuit upholds government’s good faith in refusing to seek substantial assistance departure. (712) Defendant’s plea agreement required the government to move for a § 5K1.1 departure if defendant provided truthful “substantial assistance” to the government in its criminal investigation. The 11th Circuit upheld the district court’s determination that the government acted in good faith in refusing to move for a substantial assistance departure. The government offered two reasons for its decision: defendant never provided substantial assistance to the government, and the plea deal was based on a discussion with defendant during which defendant lied. At sentencing, the district court found that defendant did not provide substantial assistance and that the government acted in good faith. U.S. v. Gordon, 19 F.3d 1387 (11th Cir. 1994).
11th Circuit upholds refusal to depart below mandatory minimum absent government motion. (712) Defendant claimed that the government’s failure to move for a downward departure for substantial assistance under § 5K1.1 breached his plea agreement. The 11th Circuit upheld the sentence. First, the court had no authority to depart below the mandatory minimum absent a government motion. Judicial review is proper only when there is a substantial showing that the prosecution’s refusal is based on an unconstitutional motive. No such allegation was made here. The government’s failure to present evidence of the extent of defendant’s cooperation, as required by the plea agreement, was troubling. However, defendant’s dispute was over the government’s failure to make a § 5K1.1 motion, not its breach of this provision. Senior Judge Clark dissented, believing that the plea agreement obligated the district judge to examine defendant’s allegations of bad faith. U.S. v. Forney, 9 F.3d 1492 (11th Cir. 1993).
11th Circuit forbids substantial assistance departure under section 5K2.0. (712) The district court originally made a substantial assistance departure, over the government’s objection. On the first appeal, the 11th Circuit reversed, finding such an departure improper absent a government motion under section 5K1.1. At resentencing, the district court departed downward under section 5K2.0, finding (1) defendant was substantially less responsible than his co-defendant, (2) defendant posed a lesser danger to society, (3) defendant provided testimony that was of substantial assistance to the government in its prosecution of the co-defendant, (4) absent a downward departure, there would be an insufficient disparity between the co-defendant’s 78 month sentence and defendant’s 41 month sentence, (5) defendant’s testimony demonstrated his attempt to rehabilitate himself, (6) his testimony exposed him to danger, and (7) his testimony provided a benefit to government. The 11th Circuit vacated and remanded for resentencing, finding the departure an effort the circumvent the government motion requirement in section 5K1.1. U.S. v. Chotas, 968 F.2d 1193 (11th Cir. 1992).
11th Circuit finds no plain error in district court’s failure to make substantial assistance departure. (712) Defendant contended that the government, acting in bad faith, refused to file a motion for a downward departure under section 5K1.1 and 18 U.S.C. section 3553(e), and that therefore the district court should have granted him a departure as a matter of due process. The 11th Circuit refused to consider this claim because defendant failed to raise it below. There was no plain error. U.S. v. Willis, 956 F.2d 248 (11th Cir. 1992).
11th Circuit rejects claim for the first time on appeal that government acted in bad faith. (712) Defendant claimed for the first time on appeal that the government acted in bad faith in refusing to move for a downward departure under section 5K1.1 based upon defendant’s substantial assistance. The 11th Circuit rejected this claim. Defendant raised no challenge to the government’s good faith at sentencing, and did not seek a downward departure for his substantial assistance. Defendant signed a written plea agreement acknowledging that the determination of whether he had provided substantial assistance rested solely with the government, and that defendant could not challenge that determination on appeal or by collateral attack. The district court properly sentenced defendant within the guideline range. The district court lacked discretion to depart downward based upon his assistance in the absence of a government motion. U.S. v. Brumlik, 947 F.2d 912 (11th Cir. 1991).
11th Circuit refuses to consider whether government acted in bad faith in refusing to move for downward departure. (712) Defendant contended that the government acted in bad faith in refusing to bring a motion for a downward departure based on her cooperation with authorities. The 11th Circuit refused to consider the claim since defendant did not raise this issue at the district court level. The fact that the district court stated that it was “powerless” to consider a request for a downward departure in the absence of a government motion did not mean that defense counsel did not need to raise this issue to preserve it for appeal. Similarly, the appellate court declined to hear defendant’s claim that the government breached her plea agreement. While the plea agreement did state that if defendant rendered substantial assistance the government would move for a downward departure, defendant failed to complain of any breach of the plea agreement to the district court at the sentencing hearing. U.S. v. Jones, 933 F.2d 1541 (11th Cir. 1991).
11th Circuit upholds requirement of government motion for substantial assistance departure. (712) Defendant argued that the guideline provision for a substantial assistance departure violates due process because the prosecutors rather than the judges effectively determine the sentence when they move, or fail to move, for a departure. The 11th Circuit rejected this argument without discussion, following the decisions of other circuits. U.S. v. Hernandez, 921 F.2d 1569 (11th Cir. 1991).
11th Circuit rules that guidelines prohibit departure for substantial assistance absent government motion. (712) The government refused to move for a substantial assistance departure at defendants’ sentencing stating that defendants’ testimony for the government at a co-defendant’s trial was not “forthright and complete.” Defendant appealed, claiming that the District Court should have used its own initiative to determine if defendant had rendered substantial assistance and then imposed a sentence accordingly. The 11th Circuit disagreed, ruling that a downward departure for substantial assistance is prohibited by guideline § 3553(e) absent a government motion. U.S. v. Alamin, 895 F.2d 1335 (11th Cir. 1990).
11th Circuit holds substantial assistance provision is not an unconstitutional delegation of unbridled discretion to prosecutors. (712) The defendants argued that the substantial assistance provision constituted an unlawful delegation of legislative authority to the executive and violated the due process clause by granting prosecutors unbridled discretion to determine who is entitled to its benefits. The 11th Circuit disagreed and affirmed the convictions. The statutes give the government authority to move for such a reduction but only courts have authority to grant it. Moreover, the discretion of prosecutors is limited by the overall context of the Anti-Drug Abuse of 1986. Finally, Congress has plenary authority to legislate in all areas where no constitutional provision is offended. Since the defendants have no constitutional right to have a minimum mandatory sentence reduced for substantial assistance, they have no basis on which to challenge the statute. U.S. v. Musser, 856 F.2d 1484 (11th Cir. 1988).
D.C. Circuit says government did not breach agreement where defendant provided partial cooperation. (712) Defendant entered into a boilerplate plea agreement in which the government promised that the Departure Guideline Committee would authorize a § 5K1.1 motion if it determined that defendant had provided substantial assistance to the prosecutor. Defendant aided authorities in the successful prosecution of one person, but refused at the eleventh hour to testify against two different persons in an unrelated prosecution. The Committee did not authorize the § 5K1.1 motion. The D.C. Circuit found no breach of the plea agreement. The government retained broad discretion under the agreement to decide what constitutes substantial assistance in a given case and whether defendant’s cooperation fit that bill. Although defendant contended that “the Government,” as a factual matter, found that his assistance in the first case was substantial, defendant conflated the prosecutor and the Departure Committee. While the prosecutor believed that defendant’s full assistance in the first case satisfied the substantial assistance requirement, defendant offered no evidence that the Departure Commission, the decision-maker under the agreement, found the assistance substantial. The boilerplate language did not explicitly make full cooperation a necessary condition to substantial assistance; however, this did not address whether such cooperation was required on the facts of defendant’s case. In re Sealed Case, 244 F.3d 961 (D.C. Cir. 2001).
D.C. Circuit holds that failure to depart for assistance to government in non-federal case was not plain error. (712) In In re Sealed Case, 181 F.3d 128 (D.C. Cir. 1999) (en banc), the D.C. Circuit held that a district court may not make a § 5K1.1 departure except upon government motion. Defendant argued for the first time on appeal that the term “offense” in § 5K1.1 refers solely to federal offenses, and thus he could receive a departure for his assistance in a District of Columbia offense, even though the government never filed a motion. The D.C. Circuit held that the district court did not plainly err in failing to sua sponte consider whether § 5K1.1 was inapplicable to defendant’s request for departure based on his assistance in a non-federal case. The language of § 5K1.1 makes no distinction between local and federal offenses. Moreover, defendant could not point to a single case decided before his sentencing that supported his interpretation of § 5K1.1. Thus, it was not obvious that offenses under District of Columbia law are excluded from § 5K1.1. In re Sealed Case, 204 F.3d 1170 (D.C. Cir. 2000).
D.C. Circuit, en banc, says substantial assistance departure requires government motion. (712) In In re Sealed Case, 149 F.3d 1198 (D.C. Cir. 1998), vacated in part on grant of rehearing en banc, In re Sealed Case, 159 F.3d 1362 (D.C. Cir. 1999), the D.C. Circuit held that even if the government does not file a motion, Koon v. United States, 518 U.S. 81 (1996) authorizes district courts to depart based on a defendant’s substantial assistance where circumstances take the case out of the heartland. It found that the departure factor “substantial assistance without a government motion” was an unmentioned factor and therefore, under Koon, could be the basis of a departure. On rehearing en banc, the D.C. Circuit rejected this reasoning and held that a district court does not have authority to depart based on a defendant’s substantial assistance if the government declines to file a motion. The relevant departure factor is not “substantial assistance to authorities without a government motion, but “substantial assistance to authorities.” The government motion proviso is a procedural limitation on the applicability of the factor, not a part of the factor itself. Section 5K1.1 is modeled after 18 U.S.C. § 3553(e), which the Supreme Court has interpreted to require a government motion. Melendez v. United States, 518 U.S. 125 (1996). The en banc court also rejected defendant’s argument that a court has independent authority to depart for substantial assistance under § 5K2.0. In re Sealed Case, 181 F.3d 128 (D.C. Cir. 1999) (en banc).
D.C. Circuit finds no ineffective assistance where government complied with plea agreement. (712) Defendant argued that his trial counsel was ineffective in failing to seek enforcement of his plea agreement with the government, or at least seek an evidentiary hearing through which defendant could establish that the government’s refusal to file a § 5K1.1 motion was a breach. The D.C. Circuit found no ineffective assistance because the government fulfilled its obligations under the plea agreement. The agreement provided that the government would inform the Departure Committee in the U.S. Attorney’s office of the nature and extent of defendant’s cooperation, and that it would file a § 5K1.1 motion if the Departure Committee determined that defendant provided substantial assistance. The Assistant U.S. Attorney involved in defendant’s prosecution filed papers to apprise the Departure Committee of defendant’s progress, and the Committee declined to authorize a § 5K1.1 motion. Because the government complied with the terms of the plea agreement, no effort by defendant’s counsel could have obtained an order for specific performance. U.S. v. Burch, 156 F.3d 1315 (D.C. Cir. 1998).
D.C. Circuit says government may withhold § 5K1.1 motion to allow defendant to complete assistance after sentencing. (712) The government refused to make a § 5K1.1 motion because defendant’s assistance was incomplete. However, it noted that he ultimately might benefit from a Rule 35(b) motion. Defendant argued that at sentencing the government must make a good faith determination of whether a defendant has provided substantial assistance and cannot be influenced by the availability of a post-sentencing Rule 35(b) motion. The District of Columbia Circuit disagreed, holding that the government may consider whether a defendant’s assistance is complete. The government has a legitimate interest in having a defendant provide more assistance than less. The government could rationally conclude that the premature filing of a substantial assistance motion might remove the incentive driving the defendant’s cooperation, thereby frustrating the government’s ability to obtain the remaining assistance it might need for a successful prosecution. U.S. v. White, 71 F.3d 920 (D.C. Cir. 1995).
D.C. Circuit holds government not obliged to make § 5K1.1 motion despite defendant’s full cooperation. (712) Defendant agreed to cooperate with the government as part of his plea agreement. In return, the government agreed that if its departure committee found that defendant’s cooperation was “substantial,” it would move for a § 5K1.1 departure. Although defendant cooperated fully, the departure committee failed to find that he had provided “substantial assistance.” The D.C. Circuit upheld the district court’s refusal to compel the government to make a § 5K1.1 motion. Under the plea agreement the departure committee retained complete discretion. Nonetheless, the court was troubled by the possibility that the government could use the promise of a § 5K1.1 motion to lure a defendant into a plea agreement, knowing that his cooperation could not possibly constitute substantial assistance. The court suggested that prosecutors summarize for the court the information they provided the departure committee, together with any explanation that the committee may have offered for finding the defendant’s assistance to be insubstantial. U.S. v. Jones, 58 F.3d 688 (D.C. Cir. 1995).
D.C. Circuit rules plea agreement did not provide for judicial review of government’s substantial assistance determination. (712) Defendant’s plea agreement provided that if the Departure Committee determined that defendant provided substantial assistance, then the government would move for a downward departure. Determination of whether defendant provided substantial assistance was within the sole discretion of the government and was not reviewable by the Court. The plea agreement stated that the issue of whether defendant performed all of his obligations under the agreement would be determined by the Court. Nevertheless, the D.C. Circuit concluded that the plea agreement did not provide for judicial review of the government’s determination that defendant had not provided substantial assistance. U.S. v. Sparks, 20 F.3d 476 (D.C. Cir. 1994).
D.C. Circuit rules substantial assistance provisions are not inconsistent with 28 U.S.C. § 994(n). (712) 28 U.S.C. § 994(n) provides that “The Commission shall assure that the guidelines reflect the general appropriateness of imposing a lower sentence than would otherwise be imposed … to take into account a defendant’s substantial assistance.” Defendant contended that the government motion requirement of guideline § 5K1.1 was inconsistent with § 994(n). The D.C. Circuit rejected this argument, finding the Commission’s exercise of its delegated powers was entitled to deference. The fact that Congress also drafted a substantial assistance provision containing a government motion requirement indicated that the Commission’s approach was reasonable. Defendant also contended that § 994(n) conferred upon defendants a liberty interest in having their assistance considered during sentencing, and that therefore, § 5K1.1 violated minimum constitutional procedural requirements in effectuating that liberty interest. The D.C. Circuit found that § 994(n)’s language was too general to give rise to a protected liberty interest. U.S. v. Doe, 934 F.2d 353 (D.C. Cir. 1991).
D.C. Circuit provides for limited review of prosecutor’s refusal to move for substantial assistance departure. (712) The district court erred in reviewing the government’s decision not to move for a downward departure under an “arbitrary and capricious” standard of review. However, the D.C. Circuit found that the court may provide a limited review of the government’s decision under the same standard currently employed by district courts to review other matters committed to prosecutorial discretion. Thus, it would be improper for the government to refuse to move for a departure in violation of the terms of a cooperation agreement, or to punish the defendant for exercising a constitutional right, or on some unjustifiable basis such as race or religion. The present record did not reflect that the government exceeded its broad discretion in refusing to move for a downward departure. U.S. v. Doe, 934 F.2d 353 (D.C. Cir. 1991).
D.C. Circuit reverses district court’s ruling that substantial assistance provision violates due process. (712) The D.C. Circuit reversed the district court’s determination that the substantial assistance provisions of the guidelines violated substantive due process by precluding a defendant from contesting the prosecution’s refusal to move for a downward departure based on the defendant’s substantial assistance. Defendants have no right, in a non-capital context, to present potentially mitigating evidence in a sentencing proceeding. Congress could have made a defendant’s assistance entirely irrelevant to sentencing. Moreover, a court may always consider a defendant’s assistance in selecting a sentence from within the guideline range, even if it may not depart from the guidelines on that basis. The government motion requirement does not prevent a defendant from presenting pertinent information to the sentencing court, since defendant herself raised the issue of assistance at her sentencing hearing. Judge Ginsburg concurred. U.S. v. Doe, 934 F.2d 353 (D.C. Cir. 1991).
D.C. Circuit holds that court has no power to depart downward for substantial assistance absent government motion. (712) The D.C. Circuit held that a district court does not have the power to depart downward from the applicable guideline range due to the defendant’s substantial assistance without a government motion confirming that the defendant provided such assistance. The court recognized that “at least two courts” have suggested that it may be possible for a district court to consider a departure under § 5K1.1 even absent a government motion. But the court stated that “most courts applying § 5K1.1 have concluded that it authorizes downward departures for substantial assistance only upon motion of the government.” The court declined to rule on the defendant’s argument that § 5K1.1 was contrary to its enabling legislation and unconstitutional because he failed to raise those issues below. Thus the district court did not err in construing § 5K1.1. U.S. v. Ortez, 902 F.2d 61 (D.C. Cir. 1990).
Article responds to criticisms of substantial assistance guideline. (712) Professor Frank Bowman predicts that the recent rulings in Singleton and Sealed Case allowing downward departures under § 5K1.1 without a government motion will not “long survive.” Nevertheless, he finds it “difficult to escape the conclusion that unease with the current substantial assistance regime is growing,” citing the recent report on substantial assistance by two Sentencing Commission staffers, known as the “Maxfield-Kramer Report” Unlike many observers, Bowman views § 5K1.1 as “an invaluable prosecutorial tool against group criminality.” However, he warns that it is a tool that “federal prosecutors are in danger of losing or having blunted in part due to their own indiscipline in employing the discretion that law now bestows on them.” Frank O. Bowman, III, Defending Substantial Assistance: An Old Prosecutor’s Meditation on Singleton, Sealed Case, and the Maxfield-Kramer Report, 12 FED. SENT. RPTR. 45 (July/August 1999).
Article questions wisdom of government motion requirement. (712) Cynthia Kwei Young Lee summarizes the numerous cases raising assorted challenges to the requirement that a government motion precede a downward departure for substantial assistance. Citing the varied policies of different U.S. Attorney’s Offices governing when such motions should be filed, she argues that the motion requirement may increase the disparity Congress sought to eliminate through the sentencing guidelines. Moreover, she questions courts’ justification of the requirement as essentially analogous to the broad discretion afforded prosecutors in the charging decision and the plea bargaining process. Though she advocates eliminating the government motion requirement, the author suggests capping the extent of the downward departure to avoid widespread circumvention of the guidelines. Cynthia Kwei Young Lee, Prosecutorial Discretion, Substantial Assistance, and the Federal Sentencing Guidelines, 42 UCLA L. REV. 105-80 (1994).
Article examines government motion requirement for substantial assistance departures. (712) A student author examines the government motion requirement both from the perspective of Eighth Circuit law and constitutional constraints. The author concludes that the Eighth Circuit will not permit a substantial assistance departure in the absence of a government motion without allegations of bad faith or arbitrariness, but may permit such departures when these allegations are established. More generally, the author argues that the government motion requirement violates notions of procedural due process, substantive due process, and separation of powers. Note, Who’s the Judge? The Eighth Circuit’s Struggle with Sentencing Guidelines and the Section 5K1.1 Departure, 18 WILLIAM MITCHELL L. REV. 731-56 (1992).