United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Submitted October 16, 2009 Decided December 8, 2009
No. 08-3079
UNITED STATES OF AMERICA,
APPELLEE
v.
KEVIN A. MOTLEY, ALSO KNOWN AS JEROME MOTLEY,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 1:06-cr-00144-ESH-1)
Steven R. Kiersh, appointed by the court, was on the briefs
for appellant.
Roy W. McLeese III, Chrisellen R. Kolb, and Katherine M.
Kelly, Assistant U.S. Attorneys, were on the brief for appellee.
Before: ROGERS, GARLAND, and GRIFFITH, Circuit Judges.
Opinion for the Court filed by Circuit Judge GARLAND.
GARLAND, Circuit Judge: Pursuant to a plea agreement,
Kevin Motley admitted to possessing with intent to distribute 50
grams or more of cocaine base. Among other things, the
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agreement required Motley to cooperate with law enforcement
authorities. After concluding that Motley had provided
substantial assistance, the government filed a motion asking the
district court to sentence him below the applicable United States
Sentencing Guidelines range, as provided by Guideline § 5K1.1.
The government refused, however, to file a motion authorizing
the court to sentence Motley below the statutory mandatory
minimum sentence, as provided by 18 U.S.C. § 3553(e). Motley
contends that the government’s refusal denied him due process
because it was irrational. We disagree and affirm the judgment
of the district court.
I
On May 26, 2006, a grand jury in the District of Columbia
charged Motley with four counts of distributing 50 grams or
more of cocaine base, in violation of 21 U.S.C. § 841(a)(1) and
(b)(1)(A)(iii), and one count of possessing a firearm and
ammunition after having been convicted of a felony, in violation
of 18 U.S.C. § 922(g)(1). One month later, Motley entered into
a plea agreement with the government, agreeing to plead guilty
to an information charging him with a single count of possessing
with intent to distribute 50 grams or more of cocaine base, in
violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A)(iii). Plea
Agreement ¶ 1 (June 27, 2006). He further agreed to cooperate
“fully, truthfully, completely and forthrightly” with law
enforcement authorities. Id. ¶ 6(a).
In exchange for Motley’s plea, the government agreed to
dismiss the pending May 26 indictment. The plea agreement
also discussed what steps the government might take with
respect to Motley’s cooperation under two provisions: (1)
U.S.S.G. § 5K1.1, pursuant to which a court may -- “[u]pon
motion of the government stating that the defendant has
provided substantial assistance” -- sentence a defendant below
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the Sentencing Guidelines range; and (2) 18 U.S.C. § 3553(e),
pursuant to which a court may -- again, “[u]pon motion of the
Government” -- sentence the defendant below the mandatory
minimum statutory sentence “to reflect [the] defendant’s
substantial assistance.” The plea agreement stated that, “[i]f the
. . . United States Attorney’s Office for the District of Columbia
. . . determines that [Motley] provided substantial assistance,
then th[e] Office will file a departure motion pursuant to Section
5K1.1 of the Sentencing Guidelines in order to afford [him] an
opportunity to persuade the Court that [he] should be sentenced
to a lesser period of incarceration . . . than indicated by the
Sentencing Guidelines.” Plea Agreement ¶ 19. The agreement
cautioned, however, that whether Motley “has provided
substantial assistance pursuant to either Section 5K1.1 of the
Sentencing Guidelines or 18 U.S.C. § 3553(e) . . . is within the
sole discretion of the United States Attorney’s Office . . . and is
not reviewable by the Court.” Id. ¶ 7.
Particularly relevant for this appeal, the agreement
emphasized that, “even if [the United States Attorney’s Office]
determines that [Motley] provided substantial assistance . . . for
purposes of Section 5K1.1 . . . , th[e] Office reserves its right to
decline to file a departure motion pursuant to 18 U.S.C.
§ 3553(e).” Id. ¶ 20. And it noted that, “[i]n the absence of a
motion under 18 U.S.C. § 3553(e), the Court will be required to
sentence [Motley] to at least the mandatory minimum period of
incarceration” for the charge to which he pleads, “even if the
Court decides to depart below the applicable guideline range.”
Id. The agreement stated that the charge to which Motley
agreed to plead carried a statutory mandatory minimum prison
term of 10 years. Id. ¶ 1.
On August 16, 2006, the government filed the agreed-upon
information, and Motley entered the agreed-upon plea. At the
plea hearing, Motley confirmed that he had read and signed the
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government’s factual proffer, and that he agreed with it. The
proffer stated that, on or about June 13, 2006, members of the
Metropolitan Police Department arrested Motley while he was
in the act of selling 125 grams of “cocaine base, also known as
crack.” Proffer 1. The proffer also stated that Motley had sold
62-gram quantities of crack on four previous occasions. It
further stated that, on May 19, 2005, police officers executed a
search warrant at Motley’s apartment and recovered two pistols
from his bedroom.
During the plea hearing, the prosecutor advised the court
that, as part of the parties’ agreement, the government would not
file “repeat papers,” which would otherwise subject Motley to
a statutory mandatory sentence of life imprisonment because of
two prior convictions for narcotics distribution. Plea Hr’g Tr. 9
(Aug. 16, 2006).1 The prosecutor noted, however, that as a
result of those convictions, Motley remained a “career
offender.” Plea Hr’g Tr. 9 (Aug. 16, 2009). If there were no
Guidelines adjustments or departures, the prosecutor said, the
Guidelines sentencing range would be 360 months to life. See
id.
Finally, with respect to the cooperation agreement, the court
told Motley:
1
See 21 U.S.C. § 841(b)(1)(A) (providing that any person who
“commits a violation of this subparagraph . . . after two or more prior
convictions for a felony drug offense have become final . . . shall be
sentenced to a mandatory term of life imprisonment”); 21 U.S.C.
§ 851(a)(1) (providing that “[n]o person who stands convicted of an
offense under this part shall be sentenced to increased punishment by
reason of one or more prior convictions, unless before trial, or before
entry of a plea of guilty, the United States attorney files an information
with the court . . . stating in writing the previous convictions to be
relied upon”).
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. . . . You must understand that[] whether or not [the
government is] satisfied with the extent of your
cooperation, that is[,] whether they're going to file
what's called a 5K motion[] and a motion under 3553[,]
is within the government's discretion.
I cannot control it. . . . I can’t go below the
mandatory [10 years] without such a motion, and the
guidelines will be applicable, although advisory, in the
absence of a motion.
So I have no ability to review their decision. You
can’t withdraw your plea if they don’t come through
because they don’t find your cooperation adequate or
sufficient or they don’t think it’s forthright. You have
to understand it’s their call, the government’s, and not
mine.
Id. at 11-12. Motley stated that he understood. Id. at 12.
In June 2008, the government filed a sentencing motion.
Motion in Aid of Sentencing and Motion for Departure from the
Recommended Guidelines Sentence (June 7, 2008) (hereinafter
Sentencing Motion). The motion noted that Motley was a
“career offender” under U.S.S.G. § 4B1.1(A) because he had
two prior felony convictions for controlled substance offenses.
Id. at 3. Accordingly, in light of Motley’s offense level and
criminal history category, and after an adjustment to reflect his
acceptance of responsibility by pleading guilty, the Guidelines
range was 262 to 327 months’ imprisonment. See id. at 3-4.
However, because the government concluded that Motley had
provided substantial assistance to law enforcement, it asked the
court -- pursuant to § 5K1.1 -- to depart downward from the
Guidelines and impose a sentence of between 120 and 135
months.
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But the government declined to move the court -- pursuant
to 18 U.S.C. § 3553(e) -- to depart below the mandatory
minimum sentence of 120 months. It explained that Motley’s
“long-term and extensive history of drug dealing . . . and the
level of respect he enjoyed around the neighborhood,
suggest[ed] that [he] had a more intimate knowledge of the
violence around that area than he chose to share.” Sentencing
Motion 5. In light of this and other factors, the government
concluded that, although Motley’s cooperation was sufficient “to
warrant a significant departure from [the] Guideline sentence
calculation of 262 to 327 months of imprisonment,” id. at 9, it
was not “sufficient to earn him a departure from the mandatory
minimum sentence,” id. at 8. At the next status hearing, held on
June 27, 2008, the district court advised the prosecutor that it
was “very troubled” that the government had filed a § 5K1.1
motion without also filing a motion pursuant to 18 U.S.C.
§ 3553(e), and it directed the government to better explain its
rationale. Hr’g Tr. 2 (June 27, 2008); see id. at 8. Thereafter,
the government filed, under seal but available to defense
counsel, a memorandum further explaining its reasons for
declining to file a § 3553(e) motion.
Motley’s sentencing hearing was held on July 22, 2008. At
the hearing, the government represented that, at the district
court’s request, it had reexamined “the facts surrounding
[Motley's] cooperation and non cooperation” and stood by its
original position. Sentencing Hr’g Tr. 4 (July 22, 2008). In
response, the court acknowledged that it did not have authority
to require the government to file a departure motion under
§ 3553(e), and that, in the absence of such a motion, it could not
impose a sentence below the statutory minimum. See id. at 3-4,
8. The court stated that the government “appeared to have
operated in good faith and not discriminated” in declining to file
a § 3553(e) motion, and it acknowledged that the government
“may be right in terms of the level of cooperation” that Motley
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provided. Id. at 3-4. Thereafter, the court sentenced Motley to
the mandatory minimum sentence of 120 months’ incarceration.
See id. at 5, 11. This appeal followed.
II
Motley maintains that the government’s refusal to file a
departure motion under § 3553(e) was unlawful, and that the
district court therefore erred in thinking that it was without
authority to sentence him to less than 120 months in prison. The
parties differ as to our standard of review. Motley contends that
he raised an appropriate objection in the district court. If he did,
and if the court erred, then we must vacate the sentence and
remand for resentencing unless the error was harmless. See
United States v. Coumaris, 399 F.3d 343, 347 (D.C. Cir. 2005).
The government contends that Motley did not adequately object
below, and that we therefore may not overturn the sentence --
even if the court erred -- unless any error was plain. See id.
Because we conclude that the court did not err, we need not
decide between those two standards.
Prior to the Supreme Court’s decision in United States v.
Booker, 543 U.S. 220 (2005), there were two important
constraints on a district court’s sentencing authority. First, the
court was generally required to impose a sentence from within
the range prescribed by the Sentencing Guidelines. See In re
Sealed Case (Sentencing Guidelines’ “Substantial Assistance”),
181 F.3d 128, 130 (D.C. Cir. 1999) (en banc) (citing 18 U.S.C.
§ 3553(b) (1997)). Under certain circumstances, however, the
court could depart downward from that sentencing range. See
id. at 131. In particular, U.S.S.G. § 5K1.1 provides that:
Upon motion of the government stating that the
defendant has provided substantial assistance in the
investigation or prosecution of another person who has
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committed an offense, the court may depart from the
guidelines.
U.S.S.G. § 5K1.1. In In re Sealed Case (Sentencing Guidelines’
“Substantial Assistance”), this court held that a district court
could make such a departure for substantial assistance only upon
a motion by the government. See 181 F.3d at 136.
In Booker, the Supreme Court excised the statutory section
that had made the Guidelines mandatory, thus rendering them
advisory. 543 U.S. at 245; see United States v. Bras, 483 F.3d
103, 105 (D.C. Cir. 2007). As a consequence, numerous circuits
have since held that a sentencing judge may now take a
defendant’s cooperation with authorities into account in crafting
an appropriate sentence, even if the government declines to file
a motion pursuant to § 5K1.1.2 Nonetheless, as a procedural
matter a sentencing court must still begin its analysis by
calculating the correct Guidelines sentence. See Nelson v.
United States, 129 S. Ct. 890, 891 (2009); Gall v. United States,
552 U.S. 38, 49 (2007); Rita v. United States, 551 U.S. 338, 351
(2007).3 Most (but not all) circuits have held that calculating the
correct Guidelines sentence includes taking into account any
traditional Guidelines-based departure, such as that authorized
2
See, e.g., United States v. Fernandez, 443 F.3d 19, 21, 33 (2d
Cir. 2006); United States v. Blue, 557 F.3d 682, 686 (6th Cir. 2009);
United States v. Knox, 573 F.3d 441, 453 (7th Cir. 2009); United
States v. Doe, 398 F.3d 1254, 1259 (10th Cir. 2005); see also United
States v. Gardellini, 545 F.3d 1089 (D.C. Cir. 2008) (affirming,
without referencing § 5K1.1, a below-Guidelines sentence that was
based in part upon the defendant’s cooperation).
3
Thereafter, the court must “consider what sentence is appropriate
for the individual defendant in light of the statutory sentencing factors,
18 U.S.C. § 3553(a), explaining any variance from the [Guidelines
range] with reference to” those factors. Nelson, 129 S. Ct. at 891-92.
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upon a government motion by § 5K1.1.4 In this case, the
government sought and the court granted a Guidelines departure
under § 5K1.1.
The second constraint on sentencing was (and is) any
applicable mandatory minimum sentence set forth in the statute
that the defendant violated. The relevant statute here, 21 U.S.C.
§ 841, contains a mandatory minimum, providing that any
person convicted of possessing with intent to distribute 50 grams
or more of cocaine base “shall be sentenced to a term of
imprisonment which may not be less than 10 years or more than
life.” 21 U.S.C. § 841(b)(1)(A); see id. § 841(b)(1)(A)(iii). As
noted in Part I, Motley admitted that he possessed with intent to
distribute more than 50 grams of cocaine base. Plea Agreement
¶ 1. And he does not suggest that anything in Booker affects the
application of the 10-year (120-month) mandatory minimum
sentence to his case. See United States v. Duncan, 413 F.3d 680,
683 n.3 (7th Cir. 2005) (noting that the “courts of appeals to
have addressed this issue have concluded that Booker does not
apply to statutory mandatory minimum sentences”).
4
See United States v. Wallace, 461 F.3d 15, 32 (1st Cir. 2006);
United States v. Fernandez, 443 F.3d 19, 26, 33 (2d Cir. 2006); United
States v. Vazquez-Lebron, 582 F.3d 443, 445 (3d Cir. 2009); United
States v. Davis, 478 F.3d 266, 273 (5th Cir. 2007); United States v.
Blue, 557 F.3d 682, 686 (6th Cir. 2009); United States v. Plaza, 471
F.3d 928, 930 (8th Cir. 2006); United States v. Crawford, 407 F.3d
1174, 1179, 1181-83 (11th Cir. 2005). Compare United States v.
Fancher, 513 F.3d 424, 427 n.1 (4th Cir. 2008) (including traditional
departures in the Guidelines calculation), with United States v. Hawes,
309 F. App’x 726, 732 n.2 (4th Cir. 2009) (unpublished opinion)
(suggesting that Gall may have rendered this requirement obsolete).
But see United States v. Arnaout, 431 F.3d 994, 1003 (7th Cir. 2005)
(finding “that the concept of ‘departures’ has been rendered obsolete
in the post-Booker world”); United States v. Mohamed, 459 F.3d 979,
986-87 (9th Cir. 2006) (same).
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As with a traditional departure from the Guidelines, there
are circumstances under which a district court may depart from
the statutory minimum sentence. In terms that parallel the
language of § 5K1.1, section 3553(e) states:
Upon motion of the Government, the court shall have
the authority to impose a sentence below a level
established by statute as a minimum sentence so as to
reflect a defendant’s substantial assistance in the
investigation or prosecution of another person who has
committed an offense.
18 U.S.C. § 3553(e). The Supreme Court has made clear that
§ 3553(e) “requires a government motion . . . before the court
may impose such a sentence.” Melendez v. United States, 518
U.S. 120, 125-26 (1996); see In re Sealed Case, 181 F.3d at 133.
The government’s refusal to file a § 3553(e) motion,
however, is not unreviewable. A district court may, for
example, grant relief if the government’s refusal breaches its
agreement to file such a motion. In re Sealed Case, 181 F.3d at
142; see Wade v. United States, 504 U.S. 181, 185 (1992). No
such breach is claimed here.5 In addition, “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[,] . . . say,
because of the defendant’s race or religion.” Wade, 504 U.S. at
186. Again, Motley does not claim that the government had a
discriminatory motive in this case, and, to the contrary, the
5
See Plea Agreement ¶ 20 (advising Motley that, “even if the . . .
United States Attorney’s Office for the District of Columbia
determines that [he] provided substantial assistance . . . for purposes
of Section 5K1.1 . . . , th[e] Office reserves its right to decline to file
a departure motion pursuant to 18 U.S.C. § 3553(e)”).
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district court concluded that the government “appeared to have
operated in good faith and not discriminated.” Sentencing Hr’g
Tr. 3 (July 22, 2008).
Finally, a court may grant a remedy if it finds that the
government’s refusal to file a § 3553(e) motion violates due
process because it is “not rationally related to any legitimate
government end.” Wade, 504 U.S. at 186; see In re Sealed
Case, 181 F.3d at 142; United States v. White, 71 F.3d 920, 924
(D.C. Cir. 1995). That is Motley’s sole claim here. See
Appellant’s Br. xv. Motley notes that both § 5K1.1 and
§ 3553(e) permit motions based upon substantial assistance, and
that the government stated he had provided such assistance
when it filed its motion under § 5K1.1. Arguing that there is no
difference in the meaning of “substantial assistance” under the
two provisions, he contends that it was irrational for the
government to file under § 5K1.1 and not under § 3553(e). This
contention has two defects.
First, Motley’s implicit suggestion that the government
must file a § 3553(e) motion any time it files a § 5K1.1 motion
is inconsistent with the Supreme Court’s decision in Melendez
v. United States. There, the Court held that a government
motion under § 5K1.1, “attesting to the defendant’s substantial
assistance in a criminal investigation and requesting that the
district court depart below the minimum of the applicable
sentencing range under the Sentencing Guidelines,” does not
also permit “the district court to depart below any statutory
minimum sentence.” Melendez, 518 U.S. at 122. The district
court does not have the latter authority, the Supreme Court held,
unless the government files a motion expressly requesting or
authorizing such a departure pursuant to § 3553(e). Id. at 125-
26. Although the Court did not specifically address whether a
court could compel the government to file a motion under
§ 3553(e) merely because the government filed one under
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§ 5K1.1, the plain implication of the Court’s opinion is that it
cannot. See id. at 130 (“What is at stake in the long run is
whether the Government can make a motion authorizing the
district court to depart below the Guidelines range but
withholding from the district court the power to depart below the
statutory minimum.”).
Second, Motley’s contention that it is necessarily irrational
for the government to refuse to file under § 3553(e) once it finds
that a defendant has provided substantial assistance
misapprehends the role that substantial assistance plays in a
§ 3553(e) (or § 5K1.1) motion. As the Supreme Court explained
in Wade v. United States, “although a showing of assistance is
a necessary condition for relief, it is not a sufficient one.” 504
U.S. at 187; see id. at 185 (stating that both § 3553(e) and
§ 5K1.1 “give[] the Government a power, not a duty, to file a
motion when a defendant has substantially assisted”); White, 71
F.3d at 923 (declaring that “the mere fact that the defendant has
rendered substantial assistance does not entitle the defendant to
a government motion”). Because substantial assistance is only
a threshold requirement, see White, 71 F.3d at 924, the
government may have reasonable grounds for declining to file
for a departure notwithstanding that the defendant has provided
such assistance. As the Wade Court noted, “the Government’s
decision not to move may [be] based not on a failure to
acknowledge or appreciate [the defendant’s] help, but simply on
its rational assessment of the cost and benefit that would flow
from moving.” 504 U.S. at 187. And just as it may be rational
for the government to decline to move under either § 5K1.1 or
§ 3553(e) even if the defendant has provided substantial
assistance, a “rational assessment of the cost and benefit” may
lead the government to move for a departure under § 5K1.1 but
not for a further departure under § 3553(e).
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The government has articulated such a rational assessment
here.6 It acknowledges that Motley provided substantial
assistance with respect to certain law enforcement
investigations, and that he therefore deserved a lower sentence
than he would otherwise have received. It notes, however, that
by agreeing not to file repeat papers, it saved Motley from a
statutory mandatory sentence of life imprisonment. See 21
U.S.C. § 851(a)(1); id. § 841(b)(1)(A). Moreover, it also filed
a motion under § 5K1.1 for a departure from the Sentencing
Guidelines, which ultimately led to a sentence of 120 months
rather than a Guidelines sentence of 262-327 months.
The government’s position is that Motley’s assistance
justified such a substantial sentence reduction, but not more.
That position is not irrational. As the government explained to
the district court, its recommended sentence “represent[ed] a
significant reduction in [Motley’s] applicable guideline range,
while recognizing that [he] has significant criminal culpability.”
Sentencing Motion 9. The government also believed that
Motley had been less than fully forthcoming in his discussions
with law enforcement. His “long-term and extensive history of
drug dealing . . . and the level of respect he enjoyed around the
neighborhood, suggest[ed] that [he] had a more intimate
knowledge of the violence around that area than he chose to
share.” Id. at 5. “In addition, at least one [prosecutor]
questioned [his] truthfulness.” Id.
6
Because the government has explained its rationale, we need not
determine the circumstances under which it may be required to do so.
Cf. Wade, 504 U.S. at 186, 187 (holding that Wade’s claim that the
government “arbitrarily” withheld a substantial assistance motion
“failed to rise to the level warranting judicial enquiry” (internal
quotation marks omitted)).
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The government has a legitimate interest in ensuring that
the sentence the court imposes “reflect[s] the seriousness of the
offense” and “provide[s] just punishment.” 18 U.S.C.
§ 3553(a)(2) (listing factors a district court must consider in
imposing a sentence). And it surely was rational for the
government to conclude that, although substantial assistance
may have justified substantially reducing Motley’s potential
sentence, his repeated drug dealing was still sufficiently serious
to require a sentence of at least 120 months’ incarceration.
Moreover, as this court recognized in United States v. White,
“the government has a legitimate interest in having a defendant
provide more assistance [rather] than less.” 71 F.3d at 924.
Hence, it was also rational for the government to decline to
move for the full departure permitted by § 3553(e) when it had
doubts about the completeness of Motley’s cooperation. In light
of these circumstances, we detect no due process violation in the
government’s refusal to file a § 3553(e) motion.
III
Because the government’s refusal to file a departure motion
was “rationally related to [a] legitimate Government end,”
Wade, 504 U.S. at 186, we reject Motley’s challenge to his
sentence and uphold the judgment of the district court.
Affirmed.