The Honorable Charles R. Wolle, United States District Judge for the Southern 1 District of Iowa. 

## United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 98-1778

___________ United States of America, * * Appellee, * * Appeal from the United States v. * District Court for the * Southern District of Iowa. Evin Alexi Licona-Lopez, * * Appellant. *

___________ Submitted: October 20, 1998 Filed: December 18, 1998

___________ Befo re BOWMAN, Chief Judge, BRIGHT, and RICHARD S. ARNOLD, Circui t Judges.

___________ BOWMAN, Chief Judge. Evin Alexi Licona-Lopez appeals the denial by the District Court of his motion 1 for an evidentiary hearing on the government's failure to move for a substantial

assistance departure under § 5K1.1 of the United States Sentencing Guidelines

. Lico na-Lopez participated in a controlled drug transaction and gave trial testimon y whichhelped convict a co-conspirator. The government claimed it did not move for a substantial-assistance departure because Licona-Lopez withheld important-2-

information until trial and pr ejudiced the government's case against the co-conspirator. Licona-Lopez argues that the ref usal was in bad faith and based on an unconstitutional motive. We affirm.

I. On October 17, 1997, Licona-Lopez was pulled over in A delanto, California and 2,919.2 grams of methamphetamine were discovered in his vehicle. Licona-Lope z made a controlled delivery of the substance to Sergio Miranda Tafolla ("Miranda") in Des Moines, Iowa. He was then indicted for conspiracy to distribute amphetamine. Licona-Lopez pled guilty pursuant to a plea agreement which obligated him to cooperate fully with the government and provide truthful information at all times. The agreem ent

gave the government "sole discretion" to file a motion for a substantial

assistance departure. Licona-Lopez participated in six police debriefings and testified against Miranda. At Miranda's trial Licona-Lopez revealed for the first time tha t another person, "El Gordo," helped arrange and carry out the drug transactions in which Licona-Lopez participated. Licona-Lopez admitted th at he withheld information about El Gordo from police in order to protect himself and his family from retribution. Licona-Lopez was senten ced on March 6, 1997. On the day before sentencing, the government informed Licona-Lopez that it would not move for a substantial

assista nce departure. Licona-Lopez raised the issue at sentencing. The prosecuto r ackn owledged that Licona-Lopez's trial testimony was truthful and helped secur e Miranda's conviction. She claimed, however, that Licona-Lopez "told a differen t story" each time he spoke to police and that the information about El Gordo tended to mitigate Miranda's involvement in the conspiracy. The prosecutor stated she woul d
cons ider moving for a substantial-assistance departure within a year if Licona-Lope z pr ovidedassistance that was substantial and helpful in ongoing investigations. Th e district court ruled that it was "up to the government" to d ecide whether to move for the-3-

departure, but directed the prosecutor to file the motion within a year or file a report wi thina year explaining the refusal to file the motion. Licona-Lopez was sentence d to 30 months of imprisonment.

On March 13, 1997, a telephone conference was held among the district court, Licona-Lopez's attorney, and the prosecutor. Licona-Lopez requested an evidentiary hearing on the government's failure to move for a substantial-assistance departure. He offered to prove that his testimony at Miranda's trial was truthful and played a significant role in obtaining Miranda's conviction. He also stated that he would try to establish whether § 5K1.1 motions were filed under similar circumstances. Th e prosecutor stated that she refused to file the § 5K1.1 mo tion because Licona-Lopez had been u ntruthful during police debriefings. She claimed that the testimony of Licona

Lopez at Miranda's trial was materially different from his statements in polic e debriefin gs and tended to mitigate Miranda's involvement in the conspiracy. She also claimedthat the discrepancies required the government to alter its trial strategy, gave imp eachment material to the defense, and put the government in a defensive position. The district court denied the motion without prejudice. This appeal followed.

II.

Sec tion 5K1.1 of the United States Sentencing Guidelines grants the distric t court th e authority to depart from a guideline sentence "[u]pon motion of th e gov ernment

stating that the defendant has provided substantial assistance in th e in vestigation or prosecution of another person who has committed an offense." U.S

. Sentencing Guidelines Manual § 5K1.1 (1997). Licona-Lope z argues that the district court erred in denying his motion for a n evidentiary hearing on the government's refusal to file the motion because the refusal was in bad f

aith and unconstitutional. Licona-Lopez does not dispute that he violated his plea agreement by withholding information about El Gordo until Miranda's trial.-4-

Rather, he argues that the refusal was improper becau se the assistance he rendered was substantial despite the fact that he was not completely truthful in police debriefings.

The district court generally lacks authority to award a substantial-assistanc e de parture in the absence of a government motion. See United States v. Matlock , 109 F. 3d 1313, 1317 (8th Cir.), cert. denied , 118 S. Ct. 188 (1997). The court can , however, grant the departure in the absence of a motion if it finds that the refusal was irrational, in bad faith, or based on an unconstitutional motive. See United States v

. Kelly , 18 F.3d 612, 617-18 (8th Cir. 1994). The Supreme Court has held that a defendant is entitled to an evidentiary hearing on the government's refusal if he or she make s a substantial, threshold showing that the refusal was unconstitutional o r irrational. See Wade v. United States , 504 U.S. 181, 185-87 (1992). We hav e held that
a subst antial, threshold showing that the refusal was in bad faith also will entitle a defendant to an evidentiary hearing. See United States v. Rounsavall , 128 F.3d 665, 669 (8th Cir. 1997)

We hol d that the district court correctly denied Licona-Lopez's motion for a n evidentiary hearing because Licona-Lopez did not make a threshold showing that the gov ernment's refusal to file a substantial-assistance motion was improper. We agre e that Licona-Lopez's assistance was arguably substantial. The governmen t acknowledged that his testimony at Miranda's t rial was truthful and the record supports Licona-Lopez's claim that his testimony provided the crux of the case against Miranda. However, a claim that a defendant provided substantial assistance will not entitle the defendant to relief or an evidentiary hearing. See Wade , 504 U.S. at 186.

The gov ernment's position is that it refused to file the motion because Licona

Lop ez was untruthful with authorities in police debriefings and prejudiced th e government's case agains t Miranda. We cannot say that refusing to file the motion for these reasons was irrational. The government may refuse to file a substantial-assistance motion if the refusal i s rationally related to a legitimate governmental end. See Wade ,-5-

504 U. S. at 186. Refusing to file a motion for a defendant who has not bee n co mpletely truthful with authorities advances the legitimate governmental interest i n provi ding an incentive for defendants to cooperate fully. There is no dispute tha t Licona -Lopez was not completely truthful with authorities because Licona-Lope z himself admitted that he withheld information about El Gordo from police unti l Mir anda's trial. Furthermore, the record supports the government's contention tha t Licona-Lopez's surprise testimony prejudic ed the case against Miranda. Licona-Lopez testified that El Gordo offered to pay him for transpo rting the drugs, paid for part of the transportation expenses, and he lped load and deliver the drugs. This testimony tended to absolve Miranda of responsibility for these aspects of the conspiracy. We also find plausib le the government's contention that the testimony undermined Licona-Lopez' s credibili ty as a key government witness and required the government to alter its tria l strategy. Given these

considerations, the government rationally could have concluded that Licona-Lopez did not merit a substantial-assistance departure.

We find no evidence of bad faith or an unconstitutional motive in the record

. The government did not make any promises or guarantees concerning the motion and the plea agreement left the motion to the "sole discretion" of the government. Cf

. Matlo ck , 109 F.3d at 1318 (holding that the defendant had not made a substantia l thresho ld showing where plea agreement made motion conditional on government' s assessment of defendant's assistance); United States v. Romsey , 975 F.2d 556, 558 (8th Ci r. 1992) (stating that the carefully worded plea agreement preserved government' s discretion in filing motion). Likewise, there is no evidence that the refusal wa s motivated b y invidious discrimination. See Wade , 504 U.S. at 186 (stating that a defen dant is entitled to an evidentiary hearing if a prosecutor refused to file a substantial-assistance motion because of an unconstitutional factor, such as th e defendant 's race or religion). Consequently, we find that Licona-Lopez has failed t o meet his burden of making a threshold showing that the refusal was irrational, in bad faith, or based on an unconstitutional motive.F ed. R. Crim. P. 35(b) allows the court to resentence the defendant to reflec t 2 substanti al assistance rendered after sentencing while a § 5K1.1 motion reflect s substantial assistance rendered before sentencing. See Martin , 25 F.3d at 216. Fed. R. Crim. P. 35(b) provides that "[t]he court, on mot ion of the Government made within one y ear after the imposition of the sentence, may reduce a sentence to reflect a defe ndant's subsequent, substantial assistance in the investigation or prosecution o f another person who has committed an offense." -6- Licona-Lopez argues that the refusal was unconstitutional becau se the prosecutor in dicated a willingness to file the motion at a later time if Licona-Lopez provide d substan tial assistance in ongoing investigations. Licona-Lopez contends tha t postponing a motion regardi ng the defendant's substantial assistance in order to secure post-sentencing cooperation violates due process. Other courts have held that the government's decision to defer making a § 5K1.1 motion on the premise that it will make a Federal Rule of Criminal Procedure 35(b )
su bstantial assistance motion after sentencing may violate due process. See , e.g. , 2 United States v. Martin , 25 F.3d 211, 216 (4th Cir. 1994); United State s v. Drown , 942 F.2d 55, 5 9 (1st Cir. 1991). We have not addressed this issue and need not her e beca use the government's refusal to file the motion did not implicate due process

. Post poning a motion regarding the defendant's substantial assistance to secure post

sen tencing cooperation can only violate due process if a defendant has a right to th e motion at sentencing. As discussed previously, Licona-Lopez has failed to demonstrate any right to the motion at sentencing. The cases cited by Licona-Lope z hold that due process requires the government to determine at sentencing whether a defendant's pre-sentencing cooperation merits a substantial-assistance departure and to move for the departure at s entencing if it decides in the affirmative. See , e.g. , Martin , 25 F.3d at 216; Drown , 942 F.2d at 59 & n.7

. Here the government determined that Lico na-Lopez's pre-sentencing assistance did not
me rit a departure. The government's conditional willingness to move for a departur eLicona-Lopez urges us to follow In re Sealed Case , 149 F.3d 1198 (D.C. Cir. 3 1998), in whi ch the court held that a district court has the authority to grant a substantial-assistance departure without a motion by the government. The pertinen t part of this case has been vacated for rehearing en banc. See In re Sealed Case , No. 97-3112, 1998 WL 775647 (D.C. Cir. Nov. 3, 1998). -7- at a later time does not change this fact. The prosecu tor stated that the government had
a polic y against filing substantial-assistance motions for defendants who wer e untruthful with authorities. She also stated that "based on the misstatements, the lies toldto agents five times previously, he was not entitled to any substantial assistance, he was not truthful." Licona-Lopez contends that United States v. Pipes , 125 F.3d 638 (8th Cir. 1997), cert. denied , 118 S. Ct. 1202 (1998), requires the court to grant an evidentiary hearing whenev er a defendant demonstrates that his or her cooperation contributed to th e government's case against another. This reading of Pipes is erroneous. In Pipes , th e de fendant had provided assistance that the police evaluated as helpful, but th e government refused to move for a substantial-assistance depart ure because a prosecutor in anoth er district made conclusory allegations that the defendant had not bee n completely truthful. See id. at 641. We remanded for an evidentiary hearing because the government had n ever explained the basis for the allegation that the defendant had been untruthful and the district court therefore had no basis for determining whethe r the refusal was irrational. See id. at 641-42. Pipes implies that the government does not act irrationally in refusing to file a substantial-assistance motion for a defendan t who has p rovided substantial assistance but has been untruthful with the authoritie s while cooperating. Pipes is therefore consistent with our decision here. The rationale of Pipes does not support a remand for an evidentiary hearing in this case becaus e Licona-Lopez admitted that he had been untruthful in police debriefings. There is no need to develop the record on this point. 3-8- III. For the reasons stated, the District Court's denial of Licona-Lopez's motion for an evidentiary hearing on the government's refusal to move for a substantial-assistance departure is affirmed. A true copy.

Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.