*

The HONORABLE RICHARD E. DORR, United States District Judge for the

Western District of Missouri, sitting by designation.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 03-3011

___________

United States of America, *

*

Plaintiff - Appellant, *

* Appeal from the United States

v. * District Court for the

* Northern District of Iowa.

Gary Lynn Moeller, *

*

Defendant - Appellee. *

___________

Submitted: May 12, 2004

Filed: September 3, 2004

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Before LOKEN, Chief Judge, BRIGHT, Circuit Judge, and DORR,*

 District Judge.

___________

LOKEN, Chief Judge.

Gary Lynn Moeller pleaded guilty to conspiring to manufacture and distribute

five grams or more of actual methamphetamine. The statutory minimum sentence for

this offense is five years in prison. See 21 U.S.C. § 841 (b)(1)(B)(viii). Moeller’s

guidelines sentencing range is seventy-eight to ninety-seven months in prison. The

government filed a motion under U.S.S.G. § 5K1.1 and recommended a twenty

percent downward departure based up Moeller’s substantial assistance in the

investigation and prosecution of other offenders. The government did not make a
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motion under 18 U.S.C. § 3553(e), which is required before the court may depart

below a statutory minimum sentence to reflect a defendant’s substantial assistance.

See Melendez v. United States, 518 U.S. 120, 126 (1996). 

At sentencing, the district court observed that the government “can’t not make

the motion just to limit my discretion” and asked defense counsel, “are you going to

make a motion to compel the government to make the 3553(e) motion.” After

Moeller did so, the court granted his motion, concluding that the government acted

in bad faith in refusing to make the § 3553(e) motion “because I can’t think of a

single reason other than to limit my discretion.” The court then sentenced Moeller

to fifty months in prison, ten months below the statutory minimum. The government

appeals. We reverse. 

In Wade v. United States, the Supreme Court defined the respective roles of the

prosecutor and the sentencing court in granting downward departures based on a

defendant’s substantial assistance:

[I]n both § 3553(e) and § 5K1.1 the condition limiting the court’s

authority [to grant a downward departure] gives the Government a

power, not a duty, to file a motion when a defendant has substantially

assisted.

Wade nonetheless argues, and . . . we agree, that a prosecutor’s

discretion when exercising that power is subject to constitutional

limitations that district courts can enforce. Because we see no reason

why courts should treat a prosecutor’s refusal to file a substantialassistance motion differently from a prosecutor’s other decisions, we

hold that federal district courts have authority to review a prosecutor’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.
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504 U.S. 181, 185-86 (1992) (citation omitted). The Court explained that an

unconstitutional motive is one based on “suspect reasons such as [defendant’s] race

or his religion,” or one “not rationally related to any legitimate Government end.”

504 U.S. at 186.

Moeller argues, and the district court agreed, that the government may be

ordered to file a § 3553(e) motion if its refusal to file was in “bad faith.” Although

there is language supporting that contention in United States v. Rounsavall, 128 F.3d

665, 667-69 (8th Cir. 1997), where we remanded for an evidentiary hearing, bad faith

is not a constitutional standard. Rather, a substantive due process violation requires

proof that a government official’s abuse of power “shocks the conscience,” County

of Sacramento v. Lewis, 523 U.S. 833, 846 (1998), and an equal protection violation

requires proof of “unlawful, purposeful discrimination.” Batra v. Bd. of Regents, 79

F.3d 717, 722 (8th Cir. 1996). In this case, at sentencing, the prosecutor explicitly

stated that the government’s decision not to file a § 3553(e) motion was “[b]ased

upon the cooperation [Moeller] provided . . . We based it solely on what he did in

this case.” Nothing in the record contradicts this explanation or even suggests the

presence of an unconstitutional motive. Therefore, the district court had no basis to

grant the remedy for an unconstitutional motive reserved in Wade. 

In addition to the issue of unconstitutional motive, our prior cases have

recognized that Congress limited the prosecutor’s nearly unconstrained statutory

authority under § 3553(e) to the question of the defendant’s substantial assistance to

law enforcement. In other words, § 3553(e) “was not intended to grant prosecutors

a general power to control the length of sentences.” United States v. Stockdall, 45

F.3d 1257, 1261 (8th Cir. 1995). Therefore, in United States v. Anzalone, when the

government conceded that the defendant rendered sufficiently substantial assistance

but refused to file a substantial assistance motion because of unrelated misconduct,

we held that § 3553(e) required the government to file the motion, noting that the

prosecutor could then argue to the court that the unrelated misconduct “should
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preclude or severely restrict any downward departure relief.” 148 F.3d 940, 942,

vacated, 148 F.3d 940, reinstated, 161 F.3d 1125 (8th Cir. 1998). Our subsequent

cases have made it clear, however, that relief in Anzalone was predicated on

government concessions that established a statutory duty to file the substantial

assistance motion. See United States v. Wilkerson, 179 F.3d 1083, 1086 (8th Cir.

1999); accord United States v. Buckendahl, 251 F.3d 753, 762 (8th Cir.), cert. denied,

534 U.S. 1049 (2001). 

In this case, the district court compelled the government to file a § 3553(e)

motion “because I can’t think of a single reason [not to file it] other than to limit my

discretion.” But it is not the sentencing court’s function to look behind the

prosecutor’s substantial assistance decision-making in this fashion. The prosecutor’s

evaluation of the quantity and quality of a defendant’s assistance, like a prosecutor’s

decision to prosecute, “is particularly ill-suited to judicial review.” Wayte v. United

States, 470 U.S. 598, 607 (1985). Moreover, as the Supreme Court noted in

Wade,“[t]he Government’s decision not to move may have been based not on a failure

to acknowledge or appreciate [the defendant’s] help, but simply on its rational

assessment of the cost and benefit that would flow from moving.” 504 U.S. at 187.

The government’s refusal to file a § 3553(e) or § 5K1.1 motion always has the effect

of limiting the sentencing court’s discretion. But so long as the government is

exercising the statutory power conferred by those laws and its action is not based on

an unconstitutional motive, its refusal to file the motion is unreviewable.

Moeller argues in the alternative that we should remand for an evidentiary

hearing to allow him “an opportunity to make a substantial threshold showing” that

the government’s refusal to file a § 3553(e) motion was prompted by an improper

motive. We decline to do so. Neither a claim that the defendant provided substantial

assistance nor “generalized allegations of improper motive” entitle a defendant to

relief. Wade, 504 U.S. at 186. When the government ties its refusal to make a

§ 3553(e) motion to the defendant’s substantial assistance, or lack thereof, and the
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defendant fails to make a substantial threshold showing of improper motive, an

evidentiary hearing is not warranted. See United States v. Wolf, 270 F.3d 1188, 1191

(8th Cir. 2001). 

The judgment of the district court is reversed and the case is remanded for

resentencing with instructions to impose a sentence not less than the statutory

minimum sentence of sixty months in prison. See 18 U.S.C. § 3742(f)(1). The

government’s motion to expand the record on appeal is denied.

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