United States District Court, N.D. Alabama, Southern Division
DAVID PROCTOR UNITED STATES DISTRICT JUDGE.
matter is before the court on Petitioner's Motion to
Vacate, Set Aside, or Correct Sentence filed pursuant to 28
U.S.C. § 2255. (Doc. # 1). Petitioner, acting pro
se, moves to vacate, set aside, or correct the sentence
he received in case 2:15-cr-84-RDP-HGD. After careful review,
the court concludes Petitioner's claims are due to be
denied and that the action be dismissed with prejudice.
was indicted on August 27, 2014 in an indictment charging him
with illegal possession of two firearms. See
7:14-cr-276-RDP-HGD (the “gun case”). While the
gun case was pending, Petitioner cooperated with the
Government and provided information regarding a bank fraud
scheme in which he participated and for which he was charged.
See 2:15-cr-84-RDP-HGD (the “bank fraud
case”). The Government reached a plea agreement with
Petitioner in the bank fraud case. Pursuant to that
agreement, Petitioner agreed to enter a guilty plea to one
count of conspiracy to commit bank fraud and one count of
aggravated identity theft in the bank fraud case. (Doc. # 6-1
at p. 2).
Government also agreed to proceed with the gun case and the
bank fraud case sentencing on the same date, and Petitioner
was sentenced in both cases on September 28, 2015. (Gun Case,
Minute Entry on 9/28/2015; Bank Fraud Case, Minute Entry on
9/28/2015). The Government moved for a downward departure in
the gun case pursuant to 5K1.1 based on Petitioner's
cooperation providing information regarding the bank fraud
case. (Doc. # 6-1 at pp. 6-8). On September 28, 2015, the
court granted the Government's motion for downward
departure in the gun case, and sentenced Petitioner to a
custodial sentence of 34 months as to Count 1 and 36 months
as to Count 2 to be served concurrent with any sentence
imposed in the bank fraud case. (Gun Case, Minute Entry on
9/28/2015). In the bank fraud case, the court imposed a
custodial sentence of 34 months as to Count 1 to be served
concurrent with any sentence imposed in the gun case and 24
months as to Count 2 to be served consecutive. (Bank Fraud
Case, Minute Entry on 9/28/2015). Accordingly, the total
sentence imposed was 58 months for both cases.
Motion, Petitioner contends that he is entitled to relief
because the Government did not move for a sentence reduction,
in spite of Petitioner's cooperation. (Doc. # 1 at p. 4).
However, in his brief in support of his Motion, and in his
reply brief, Petitioner argues that the Government filed a
motion for a downward departure based on his assistance, but
did not inform the court of the full extent of his
cooperation. (Doc. # 2 at p. 4; Doc. # 11 at pp. 1-2).
Petitioner is not entitled to relief under either theory.
of Petitioner's claim is muddied by the fact that
Petitioner was sentenced in two separate cases on the same
day, and his cooperation in the gun case included a
discussion of his involvement in the bank fraud case. To be
clear, in his motion, Petitioner identifies case number
2:15-cr-84-RDP-HGD-1 (the bank fraud case) as the case (and
sentence) from which he seeks relief in his Petition.
(See Doc. # 1 at p. 1). However, because Petitioner
does not clearly delineate between the plea agreements
entered in the separate cases and the different sentences
that he received, the court will give him the benefit of any
doubt and address each of his arguments, in turn.
Petitioner is Not Entitled to Relief Because of Any Failure
to File a Departure Motion in the Bank Fraud
Petitioner and the Government entered a plea deal in the bank
fraud case, that agreement did not include a cooperation
agreement or any other terms under which the Government was
obligated to file a motion for downward departure in that
case. (See Doc. # 6-3). Accordingly, to the extent
that Petitioner contends that the Government breached the
plea agreement by failing to file a motion for downward
departure in the bank fraud case, he raises no right
even if Petitioner's § 2255 motion could also be
construed to seek relief based on the Government's
failure to move for a sentence reduction in the bank fraud
case, there is no basis for awarding it. The Government
has the discretion to move for a departure from the
Guidelines if a defendant “provided substantial
assistance in the investigation or prosecution of another
person who has committed an offense. U.S.S.G. § 5K1.1;
Wade v. United States, 504 U.S. 181, 185 (1992)
(under § 5K1.1, the Government has a “power, not a
duty, to file a motion when a defendant has substantially
assisted). Indeed, review of the Government's decision
not to file a substantial assistance motion is limited to
those cases which allege an unconstitutional motive.
Wade, 504 U.S. at 185-86 (reasoning that a
prosecutor's refusal to file a substantial assistance
motion because of the defendant's race or religion could
form the basis of an unconstitutional motive); United
States v. Nealy, 232 F.3d 825, 831 (11th Cir. 2000)
(noting that Wade limited the free exercise of the
government's discretion under § 5K1.1 only to the
extent that the government cannot exercise that discretion
for an unconstitutional motive).
Petitioner has not alleged that the Government had some
unconstitutional motive behind a decision not to file a
substantial assistance motion in the bank fraud case. In
fact, Petitioner does not ascribe any motive to the
Government at all. Instead, at best, his Petition can be
construed only to allege that he provided substantial
assistance in the bank fraud case, but the Government did not
file a motion for downward departure in that case. This
allegation does not provide any basis for habeas relief for
at least three reasons.
the plea agreement in the bank fraud case did not provide for
a 5K1.1 motion to be filed in that case. Thus, the Government
was not contractually obligated to file such a motion.
Second, the agreement did not provide for filing of a motion
under 18 U.S.C. § 3553(e) related to the mandatory
minimum sentence Petitioner faced with respect to Count 2 in
the bank fraud case. Absent such a motion, and even if a
5K1.1 motion had been filed, the court would not have had the
authority to depart below the 24 month mandatory minimum.
United States v. Melton, No. 15-15738, 2017 WL
2926589, at *6 (11th Cir. July 10, 2017). Finally, even if a
departure motion had been filed in the bank fraud case and
the court had departed under § 5K1.1, any reduction in
Petitioner's sentence related to Count 1 in that case
would not have reduced his sentence (which was to be
concurrently served) related to Count 1 in the gun case. In
other words, a § 5K1.1 departure in the bank fraud case
would not have reduced the total time Petitioner served in
the bank fraud case and the gun case.
Petitioner is Not Entitled to Relief Because of Any Failure
of the Governmentto Properly Present ...