Opinion
Case No. 2:00CR20053-001.
December 9, 2005
ORDER
Currently before the court is Defendant's Motion for Downward Departure for Substantial Assistance Pursuant to U.S.S.G. § 5K1.1. (Doc. 53) and the Government's Response (Doc. 54). Defendant moves the Court to grant a downward departure pursuant to U.S.S.G. § 5K1.1, 18 U.S.C. § 3553(b) and Rule 35 of the Federal Rules of Criminal Procedure. Defendant contends the Government induced him to "talk" by agreeing to consider moving for a downward departure if Defendant provided substantial assistance while having no intent to file such a motion.
The Government has no duty to make a substantial assistance motion unless it has entered into a plea agreement with the defendant that creates such a duty. United States v. Ziesman, 409 F.3d 941 (8th Cir. 2005) (citation omitted). In the absence of such a duty, a district court may review the Government's refusal to make a substantial assistance motion only if the Government's decision was based on an unconstitutional motive or was not rationally related to a legitimate government interest. Id. The defendant must make a "substantial threshold showing" of one of these improper motives in order to justify a review. Id. Defendant has failed to make such a "substantial threshold showing" in this case.
In his motion, Defendant acknowledges that his plea agreement clearly states that the Government made no promise to request a downward departure but only agreed to consider it based upon the nature and extent of Defendant's cooperation. (Doc. 53, p. 3). Defendant provides no evidence of any improper motive of the Government in its decision to not request a downward departure. Further, as Defendant did not raise this issue at sentencing, on appeal, or in his 18 U.S.C. § 2255 motion, he has waived any objection at this point. United States v. Murphy, 248 F.3d 777 (8th Cir. 2001). Upon due consideration, the motion is hereby DENIED.
IT IS SO ORDERED.