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The Honorable Patrick J. Schiltz, United States District Judge for the District

of Minnesota. 

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 08-1017

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Reid Douglas Larson, *

*

Appellant, *

* Appeal from the United States

v. * District Court for the

* District of Minnesota.

United States of America, *

* [UNPUBLISHED]

 Appellee. *

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Submitted: November 10, 2008

Filed: December 30, 2008

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Before WOLLMAN, BEAM and BENTON, Circuit Judges.

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PER CURIAM.

 Reid Douglas Larson pled guilty to aiding and abetting the distribution of 50

grams or more of methamphetamine mixture. The district court1

 denied his motion

to compel the government to file a downward departure motion and his request to

have an evidentiary hearing on that motion. Larson appeals. Having jurisdiction

under 28 U.S.C. § 1291, this court affirms.
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Larson sold methamphetamine to an undercover officer in November 2006. The

officer met him for another controlled buy on December 7. Before the buy, Larson

was seen with Charleton Hawks, a co-defendant. Both were arrested after the buy.

Hawks immediately cooperated with law enforcement including arranging another

controlled buy which led to the arrest of his source and a third co-defendant. Hawks

was released, then disappeared for 75 days.

While Hawks was a fugitive, Larson’s detention hearing was held. Larson

alleges that after this hearing, an assistant United States attorney indicated that he

would move for a downward departure if Larson assisted in recapturing Hawks.

Working through a third party, Larson provided information to the police that led to

the capture of Hawks in February 2007, and state convictions of several others for

property and narcotics crimes. Hawks entered into a plea agreement that was filed

with the court on April 23, 2007. On May 3, Larson signed a plea agreement, which

provided that if he gave future substantial assistance to the government, it would file

a motion for a downward departure. 

The government’s decision not to file a substantial assistance motion can be

reviewed by the district court only if there is a substantial threshold showing that

would require an evidentiary hearing. United States v. McClure, 338 F.3d 847, 850

(8th Cir. 2003). Review of a denial of a motion to compel the government to file a

substantial assistance motion is for an abuse of discretion. Id. 

Larson’s initial conversation regarding assistance in exchange for a downward

departure was made during preliminary discussions after his detention hearing.

Absent a motion by the government, a district court generally may not grant a

downward departure. United States v. Matlock, 109 F.3d 1313, 1317 (8th Cir. 1997).

A district court may review a prosecutor’s refusal to file a downward departure

motion, if the refusal was unconstitutional or motivated by bad faith. United States

v. Rounsavall, 128 F.3d 665, 667 (8th Cir. 1997). Larson alleges bad faith because
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he believes he provided substantial assistance. The district court found, based on the

facts, that the refusal to file the motion for downward departure was not bad faith by

the government, and may have been based on a misunderstanding by Larson.

One full page, section 9 “Cooperation”, of the six-page plea agreement

provided that any determination of Larson’s substantial assistance was within the

“sole discretion” of the government. The government also had discretion to decide

whether to file for downward departure. The agreement in this case is very similar to

the one in McClure where the district court did not abuse its discretion in denying a

motion to compel or an evidentiary hearing. See McClure, 338 F.3d at 851.

If Larson’s written plea agreement had been prior to his providing substantial

assistance to the government, and the government had agreed to file a motion, he

might have a claim. United States v. Johnson, 241 F.3d 1049, 1052-54 (8th Cir.

2001). There was no agreement between Larson and the government when he

provided his assistance. Larson does not allege that he had a specific agreement with

the government that it breached. Larson’s guilty plea was not induced by the alleged

agreement to file for a downward departure. See United States v. Hart, 397 F.3d 643,

647 (8th Cir. 2005). 

The district court did not abuse its discretion by denying Larson’s motion to

compel a downward departure, and for an evidentiary hearing.

The judgment is affirmed. 

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