Holding: Government’s reason for refusing to file
§5K1.1 motion was unconstitutional.

After the defendant was arrested with drugs, he
immediately started cooperating with police by calling
his drug supplier and leaving a message with the return
phone number of a detective with police department.

The detective heard from the supplier, arranged a purchase,
and arrested the supplier when he arrived with the
cocaine. Based on this cooperation, the government
stated that it would file a motion for reduced sentence
under §5K1.1. However, the defendant did not plead
guilty and took the matter to trial, where he was found
guilty of drug conspiracy and distribution charges.

Because the defendant went to trial, the government
refused to file the motion under §5K1.1.

At sentencing, the defendant moved the district court to compel the
filing of the motion. The government responded that the
defendant “chose not to continue with his cooperation.
He chose to go to trial.�

The district court denied the
motion and the defendant appealed.

The Eleventh Circuit explained that although the district court could not grant
a downward departure under §5K1.1 without the
government’s motion, it had the authority to review a
prosecutors refusal to file the motion and to grant a
remedy if it found the refusal was based on an
unconstitutional motive.

“Judicial review is appropriate only when there is an allegation and a substantial
showing that the prosecution refused to file substantial assistance motion because of a constitutionally impermissible motivitation.� In this case, refusing to file
a §5K1.1 motion in order to punish a defendant for exercising his right to trial was an unconstitutional motive.

“While the government may refuse to file a
§5K1.1 for many reasons, to punish a person because he
has done what the law plainly allows him to do is a due
process violation of the most basic sort.�

Refusing to file the motion in retribution for exercising the Sixth
Amendment right to jury by trial was an unconstitutional motive.

The sentence was vacated and remanded.

David Finn