In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 16‐1319
UNITED STATES OF AMERICA,
Plaintiff‐Appellee,
v.
TYRAN PATTON,
Defendant‐Appellant.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 13‐CR‐239 — Elaine E. Bucklo, Judge.
____________________
ARGUED DECEMBER 8, 2016 — DECIDED FEBRUARY 9, 2017
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Before MANION, KANNE, and HAMILTON, Circuit Judges.
MANION, Circuit Judge. Tyran Patton was a high‐level drug
dealer who, after being arrested for an unrelated firearms of‐
fense, agreed to cooperate with the government. Patton acted
as an informant in the government’s investigation of illegal
firearm sales but then disappeared for several months. After
he reemerged, he pleaded guilty to the drug charges and was
sentenced. At sentencing the government refused to move for
2 No. 16‐1319
a sentencing reduction for substantial cooperation. The dis‐
trict court then sentenced Patton to a below‐guidelines prison
sentence of 244 months’ imprisonment. Patton appeals, claim‐
ing the district court should have forced the government to
file a motion for a sentencing reduction. We affirm.
I.
Tyran Patton was a major cocaine and heroin dealer in the
Chicago area. In April 2010, law enforcement agents arrested
Patton’s courier with 8 kilograms of cocaine and 3 kilograms
of heroin. Agents for the Bureau of Alcohol, Tobacco, Fire‐
arms and Explosives (“ATF”) later arrested Patton pursuant
to an arrest warrant in an unrelated firearms investigation.
After he was arrested, Patton confessed to his use of firearms
and his drug‐trafficking activities. He then agreed to cooper‐
ate with the ATF. Patton assisted the ATF for about a year and
made several controlled purchases of firearms. However, the
government agent working with Patton was inexperienced
and allowed Patton to pick his own targets. As a result, ac‐
cording to the government, Patton only delivered street‐level
dealers, protecting higher‐level sources as well as family and
friends. Nonetheless, Patton’s efforts resulted in several con‐
victions and the government removing 60 guns off the streets.
In late August 2012, the ATF informed Patton that the gov‐
ernment was about to appear before a grand jury and needed
him to testify. The government also informed Patton that he
would be indicted soon on the drug charges. Soon thereafter,
Patton disappeared, reemerging in February 2013 only after
the government had finished several trials and word was out
on the street that Patton was an informant. The government
claims Patton only came forward then because he needed the
government’s protection.
No. 16‐1319 3
Patton attempted to negotiate a plea agreement with the
government, but because he had been AWOL for over six
months, his efforts were unsuccessful. Patton eventually
pleaded guilty to the drug charges without a plea agreement.
At sentencing, Patton asked the district court to force the pros‐
ecutor to file a motion for a reduction in the statutory manda‐
tory sentence and sentencing range for substantial assistance
under 18 U.S.C. § 3553(e) and U.S.S.G. § 5K1.1. The district
court stated that it didn’t think it had the authority to do so,
but even if it did, it would not require the government to file
such a motion under the circumstances. Nonetheless, in
weighing the § 3553(a) factors, the district court took into con‐
sideration Patton’s cooperation with the government and sen‐
tenced him to a below‐guideline sentence of 244 months’ im‐
prisonment.1 Patton appeals his sentence.
II.
On appeal, Patton argues that the district court erred in
denying his request to force the government to file a motion
pursuant to § 3553(e) and U.S.S.G. § 5K1.1 for a reduced sen‐
tence for substantial assistance. Section 3553(e) provides that
district courts, “[u]pon motion of the Government,” may im‐
pose a sentence below the statutory minimum to reflect a de‐
fendant’s “substantial assistance in the investigation or pros‐
ecution of another person who has committed an offense.” 18
U.S.C. § 3553(e). And Section 5K1.1 provides: “Upon motion
of the government stating that the defendant has provided
1 The advisory guidelines sentencing range was 262 to 327 months’
imprisonment.
4 No. 16‐1319
substantial assistance in the investigation or prosecution of
another person who has committed an offense, the court may
depart from the guidelines.”
“[F]ederal district courts have authority to review a pros‐
ecutor’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” or if it “was not rationally related to
any legitimate Government end.” Wade v. United States, 504
U.S. 181, 185–86 (1992). The burden is on the defendant, how‐
ever, to make a “substantial threshold showing” that the gov‐
ernment improperly withheld a substantial‐assistance motion
before he can receive a remedy. Id. at 186.
Patton does not argue that the government withheld the
motion based on unconstitutional motives; rather, he claims
the government’s decision not to move for a reduction for
substantial assistance “was not rationally related to any legit‐
imate Government end.” However, contrary to Patton’s argu‐
ment, the government presented two legitimate justifications
for its decision to withhold a substantial‐assistance motion on
Patton’s behalf. First, the government explained to the district
court that Patton did not fully cooperate in its investigation
into illegal guns sales, but instead purposely chose targets to
avoid ensnaring family members, friends, and higher‐level
gun dealers. Second, the government stressed that Patton dis‐
appeared for over six months, right after being told he was
going to be indicted and needed to testify at a grand jury hear‐
ing. While Patton claims he had to have an operation during
that time and that his wife turned off his cell‐phone, even his
own attorney acknowledged that Patton could have acted
more promptly in getting in touch with the government fol‐
lowing his surgery. Both rationales support the government’s
No. 16‐1319 5
decision not to move for a reduced sentence. See United States
v. Miller, 458 F.3d 603, 605 (7th Cir. 2006) (holding that prose‐
cutor’s refusal to file a substantial‐assistance motion was ra‐
tionally related to a law enforcement end when “the govern‐
ment declined to file the motion because it believed that [the
defendant] was not forthcoming in reference to his cocaine
source”); United States v. Davis, 247 F.3d 322, 328 (1st Cir. 2001)
(noting the defendants’ “failure to cooperate in the murder
investigation provides a basis for the [government withhold‐
ing a motion], whatever [the defendant]’s view that he had
given enough already and should not be forced to go that
far”).
Patton argues in response that he is entitled to remand to
allow for more discovery and a hearing to allow him to show
that the government’s actual motive in withholding a motion
for substantial assistance was impermissible. But, as the Su‐
preme Court held in Wade, a defendant has no right to discov‐
ery or an evidentiary hearing unless he makes a “substantial
threshold showing” of an improper motive. Patton failed to
make such a showing. In fact, Patton did not even argue to the
district court that the government’s rationale for refusing to
move for a substantial‐assistance reduction was unrelated to
a legitimate government end. Instead, Patton merely argued
that he deserved the reduction because he provided the gov‐
ernment with substantial assistance which led to the prosecu‐
tion of seven individuals and taking 60 guns off the street. Be‐
cause Patton did not argue that the government’s motive was
6 No. 16‐1319
not rationally related to any legitimate government end, our
review is for plain error only.2 Billings, 546 F.3d at 475.
In response, Patton claims that he met the “substantial
threshold showing” because the government stated at sen‐
tencing that “the government was embarrassed” and “looked
terrible.” Patton argues that “[p]rotecting the personal feel‐
ings of members of the United States Attorney’s office is not
a legitimate government interest ….” However, a review of
the transcript from the sentencing hearing shows that Patton
is taking the government’s comments completely out of con‐
text. For instance, in response to the district court’s inquiry of
why the indictment of other individuals would prompt Pat‐
ton to get back in touch with the government, the prosecutor
explained:
Word is out on the street that Tyran Patton is coop‐
erating. He is a snitch. He needs to get himself back in
the good graces of ATF … basically for some protec‐
tion. This is not a guy who doesn’t think two steps
ahead of the game. And, certainly, in this case, the de‐
fendant ran circles around a new ATF agent. It’s some‐
what embarrassing what happened in this particular
case.
2 Because Patton did not argue to the district court that the govern‐
ment’s decision to withhold a substantial‐assistance motion was unre‐
lated to a legitimate government end, the district court correctly stated
that it did not have the power to force the government to file such a mo‐
tion. United States v. Billings, 546 F.3d 472, 475 (2008). And in any event,
the district court considered Patton’s argument and rejected it.
No. 16‐1319 7
Contrary to Patton’s portrayal, the government did not ex‐
press a motive to deny Patton a reduction for substantial as‐
sistance because it was embarrassed. To the contrary: the gov‐
ernment was detailing how Patton disappeared and only re‐
appeared when it benefitted him to do so, to illustrate why in
the government’s view Patton was not entitled to a motion for
a substantial‐assistance reduction.
Similarly, the prosecutor’s statement that Patton had
made “the government look terrible” was not an explanation
for its motive in refusing to move for a substantial‐assistance
reduction, but a passing comment made in detailing Patton’s
lack of full cooperation:
So the higher‐level targets we weren’t able to get
because the defendant did all of that offline. Instead,
we got the lower‐level guy who the defendant can go
and have—pick up the guns and deliver them to the
defendant. That’s what happened. It’s what makes the
government look terrible. We missed those bigger
guys. We missed them because of the way the defend‐
ant cooperated. And that’s what happened.
This exchange shows that the government concluded that
Patton had not fully cooperated because he caused the gov‐
ernment to miss the “bigger guys”; not because the govern‐
ment looked terrible for missing the bigger guys. While Pat‐
ton now wishes to question the government further on its mo‐
tive, the district court did not commit plain error in denying
Patton’s request without further inquiry.
8 No. 16‐1319
III.
Patton clearly cooperated with the government in its gun
investigation. But because he disappeared for over six months
and, in the government’s view, only fingered low‐level tar‐
gets, protecting higher‐level sources and families and friends,
the government acted within its discretion to refuse to file a
substantial‐assistance motion. We AFFIRM.