United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Submitted October 16, 2009 Decided December 8, 2009

No. 08-3079

UNITED STATES OF AMERICA,

APPELLEE

v.

KEVIN A. MOTLEY, ALSO KNOWN AS JEROME MOTLEY,

APPELLANT

Appeal from the United States District Court

for the District of Columbia

(No. 1:06-cr-00144-ESH-1)

Steven R. Kiersh, appointed by the court, was on the briefs

for appellant.

Roy W. McLeese III, Chrisellen R. Kolb, and Katherine M.

Kelly, Assistant U.S. Attorneys, were on the brief for appellee.

Before: ROGERS, GARLAND, and GRIFFITH, Circuit Judges.

Opinion for the Court filed by Circuit Judge GARLAND.

GARLAND, Circuit Judge: Pursuant to a plea agreement,

Kevin Motley admitted to possessing with intent to distribute 50

grams or more of cocaine base. Among other things, the
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agreement required Motley to cooperate with law enforcement

authorities. After concluding that Motley had provided

substantial assistance, the government filed a motion asking the

district court to sentence him below the applicable United States

Sentencing Guidelines range, as provided by Guideline § 5K1.1.

The government refused, however, to file a motion authorizing

the court to sentence Motley below the statutory mandatory

minimum sentence, as provided by 18 U.S.C. § 3553(e). Motley

contends that the government’s refusal denied him due process

because it was irrational. We disagree and affirm the judgment

of the district court.

I

On May 26, 2006, a grand jury in the District of Columbia

charged Motley with four counts of distributing 50 grams or

more of cocaine base, in violation of 21 U.S.C. § 841(a)(1) and

(b)(1)(A)(iii), and one count of possessing a firearm and

ammunition after having been convicted of a felony, in violation

of 18 U.S.C. § 922(g)(1). One month later, Motley entered into

a plea agreement with the government, agreeing to plead guilty

to an information charging him with a single count of possessing

with intent to distribute 50 grams or more of cocaine base, in

violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A)(iii). Plea

Agreement ¶ 1 (June 27, 2006). He further agreed to cooperate

“fully, truthfully, completely and forthrightly” with law

enforcement authorities. Id. ¶ 6(a).

In exchange for Motley’s plea, the government agreed to

dismiss the pending May 26 indictment. The plea agreement

also discussed what steps the government might take with

respect to Motley’s cooperation under two provisions: (1)

U.S.S.G. § 5K1.1, pursuant to which a court may -- “[u]pon

motion of the government stating that the defendant has

provided substantial assistance” -- sentence a defendant below
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the Sentencing Guidelines range; and (2) 18 U.S.C. § 3553(e),

pursuant to which a court may -- again, “[u]pon motion of the

Government” -- sentence the defendant below the mandatory

minimum statutory sentence “to reflect [the] defendant’s

substantial assistance.” The plea agreement stated that, “[i]f the

. . . United States Attorney’s Office for the District of Columbia

. . . determines that [Motley] provided substantial assistance,

then th[e] Office will file a departure motion pursuant to Section

5K1.1 of the Sentencing Guidelines in order to afford [him] an

opportunity to persuade the Court that [he] should be sentenced

to a lesser period of incarceration . . . than indicated by the

Sentencing Guidelines.” Plea Agreement ¶ 19. The agreement

cautioned, however, that whether Motley “has provided

substantial assistance pursuant to either Section 5K1.1 of the

Sentencing Guidelines or 18 U.S.C. § 3553(e) . . . is within the

sole discretion of the United States Attorney’s Office . . . and is

not reviewable by the Court.” Id. ¶ 7.

Particularly relevant for this appeal, the agreement

emphasized that, “even if [the United States Attorney’s Office]

determines that [Motley] provided substantial assistance . . . for

purposes of Section 5K1.1 . . . , th[e] Office reserves its right to

decline to file a departure motion pursuant to 18 U.S.C.

§ 3553(e).” Id. ¶ 20. And it noted that, “[i]n the absence of a

motion under 18 U.S.C. § 3553(e), the Court will be required to

sentence [Motley] to at least the mandatory minimum period of

incarceration” for the charge to which he pleads, “even if the

Court decides to depart below the applicable guideline range.”

Id. The agreement stated that the charge to which Motley

agreed to plead carried a statutory mandatory minimum prison

term of 10 years. Id. ¶ 1.

On August 16, 2006, the government filed the agreed-upon

information, and Motley entered the agreed-upon plea. At the

plea hearing, Motley confirmed that he had read and signed the
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1

See 21 U.S.C. § 841(b)(1)(A) (providing that any person who

“commits a violation of this subparagraph . . . after two or more prior

convictions for a felony drug offense have become final . . . shall be

sentenced to a mandatory term of life imprisonment”); 21 U.S.C.

§ 851(a)(1) (providing that “[n]o person who stands convicted of an

offense under this part shall be sentenced to increased punishment by

reason of one or more prior convictions, unless before trial, or before

entry of a plea of guilty, the United States attorney files an information

with the court . . . stating in writing the previous convictions to be

relied upon”).

government’s factual proffer, and that he agreed with it. The

proffer stated that, on or about June 13, 2006, members of the

Metropolitan Police Department arrested Motley while he was

in the act of selling 125 grams of “cocaine base, also known as

crack.” Proffer 1. The proffer also stated that Motley had sold

62-gram quantities of crack on four previous occasions. It

further stated that, on May 19, 2005, police officers executed a

search warrant at Motley’s apartment and recovered two pistols

from his bedroom.

During the plea hearing, the prosecutor advised the court

that, as part of the parties’ agreement, the government would not

file “repeat papers,” which would otherwise subject Motley to

a statutory mandatory sentence of life imprisonment because of

two prior convictions for narcotics distribution. Plea Hr’g Tr. 9

(Aug. 16, 2006).1

 The prosecutor noted, however, that as a

result of those convictions, Motley remained a “career

offender.” Plea Hr’g Tr. 9 (Aug. 16, 2009). If there were no

Guidelines adjustments or departures, the prosecutor said, the

Guidelines sentencing range would be 360 months to life. See

id.

Finally, with respect to the cooperation agreement, the court

told Motley:
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. . . . You must understand that[] whether or not [the

government is] satisfied with the extent of your

cooperation, that is[,] whether they're going to file

what's called a 5K motion[] and a motion under 3553[,]

is within the government's discretion.

I cannot control it. . . . I can’t go below the

mandatory [10 years] without such a motion, and the

guidelines will be applicable, although advisory, in the

absence of a motion.

So I have no ability to review their decision. You

can’t withdraw your plea if they don’t come through

because they don’t find your cooperation adequate or

sufficient or they don’t think it’s forthright. You have

to understand it’s their call, the government’s, and not

mine.

Id. at 11-12. Motley stated that he understood. Id. at 12.

In June 2008, the government filed a sentencing motion.

Motion in Aid of Sentencing and Motion for Departure from the

Recommended Guidelines Sentence (June 7, 2008) (hereinafter

Sentencing Motion). The motion noted that Motley was a

“career offender” under U.S.S.G. § 4B1.1(A) because he had

two prior felony convictions for controlled substance offenses.

Id. at 3. Accordingly, in light of Motley’s offense level and

criminal history category, and after an adjustment to reflect his

acceptance of responsibility by pleading guilty, the Guidelines

range was 262 to 327 months’ imprisonment. See id. at 3-4.

However, because the government concluded that Motley had

provided substantial assistance to law enforcement, it asked the

court -- pursuant to § 5K1.1 -- to depart downward from the

Guidelines and impose a sentence of between 120 and 135

months. 
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But the government declined to move the court -- pursuant

to 18 U.S.C. § 3553(e) -- to depart below the mandatory

minimum sentence of 120 months. It explained that Motley’s

“long-term and extensive history of drug dealing . . . and the

level of respect he enjoyed around the neighborhood,

suggest[ed] that [he] had a more intimate knowledge of the

violence around that area than he chose to share.” Sentencing

Motion 5. In light of this and other factors, the government

concluded that, although Motley’s cooperation was sufficient “to

warrant a significant departure from [the] Guideline sentence

calculation of 262 to 327 months of imprisonment,” id. at 9, it

was not “sufficient to earn him a departure from the mandatory

minimum sentence,” id. at 8. At the next status hearing, held on

June 27, 2008, the district court advised the prosecutor that it

was “very troubled” that the government had filed a § 5K1.1

motion without also filing a motion pursuant to 18 U.S.C.

§ 3553(e), and it directed the government to better explain its

rationale. Hr’g Tr. 2 (June 27, 2008); see id. at 8. Thereafter,

the government filed, under seal but available to defense

counsel, a memorandum further explaining its reasons for

declining to file a § 3553(e) motion.

Motley’s sentencing hearing was held on July 22, 2008. At

the hearing, the government represented that, at the district

court’s request, it had reexamined “the facts surrounding

[Motley's] cooperation and non cooperation” and stood by its

original position. Sentencing Hr’g Tr. 4 (July 22, 2008). In

response, the court acknowledged that it did not have authority

to require the government to file a departure motion under

§ 3553(e), and that, in the absence of such a motion, it could not

impose a sentence below the statutory minimum. See id. at 3-4,

8. The court stated that the government “appeared to have

operated in good faith and not discriminated” in declining to file

a § 3553(e) motion, and it acknowledged that the government

“may be right in terms of the level of cooperation” that Motley
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provided. Id. at 3-4. Thereafter, the court sentenced Motley to

the mandatory minimum sentence of 120 months’ incarceration.

See id. at 5, 11. This appeal followed.

II

Motley maintains that the government’s refusal to file a

departure motion under § 3553(e) was unlawful, and that the

district court therefore erred in thinking that it was without

authority to sentence him to less than 120 months in prison. The

parties differ as to our standard of review. Motley contends that

he raised an appropriate objection in the district court. If he did,

and if the court erred, then we must vacate the sentence and

remand for resentencing unless the error was harmless. See

United States v. Coumaris, 399 F.3d 343, 347 (D.C. Cir. 2005).

The government contends that Motley did not adequately object

below, and that we therefore may not overturn the sentence --

even if the court erred -- unless any error was plain. See id.

Because we conclude that the court did not err, we need not

decide between those two standards.

Prior to the Supreme Court’s decision in United States v.

Booker, 543 U.S. 220 (2005), there were two important

constraints on a district court’s sentencing authority. First, the

court was generally required to impose a sentence from within

the range prescribed by the Sentencing Guidelines. See In re

Sealed Case (Sentencing Guidelines’ “Substantial Assistance”),

181 F.3d 128, 130 (D.C. Cir. 1999) (en banc) (citing 18 U.S.C.

§ 3553(b) (1997)). Under certain circumstances, however, the

court could depart downward from that sentencing range. See

id. at 131. In particular, U.S.S.G. § 5K1.1 provides that:

Upon motion of the government stating that the

defendant has provided substantial assistance in the

investigation or prosecution of another person who has
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2

See, e.g., United States v. Fernandez, 443 F.3d 19, 21, 33 (2d

Cir. 2006); United States v. Blue, 557 F.3d 682, 686 (6th Cir. 2009);

United States v. Knox, 573 F.3d 441, 453 (7th Cir. 2009); United

States v. Doe, 398 F.3d 1254, 1259 (10th Cir. 2005); see also United

States v. Gardellini, 545 F.3d 1089 (D.C. Cir. 2008) (affirming,

without referencing § 5K1.1, a below-Guidelines sentence that was

based in part upon the defendant’s cooperation).

3

Thereafter, the court must “consider what sentence is appropriate

for the individual defendant in light of the statutory sentencing factors,

18 U.S.C. § 3553(a), explaining any variance from the [Guidelines

range] with reference to” those factors. Nelson, 129 S. Ct. at 891-92.

committed an offense, the court may depart from the

guidelines.

U.S.S.G. § 5K1.1. In In re Sealed Case (Sentencing Guidelines’

“Substantial Assistance”), this court held that a district court

could make such a departure for substantial assistance only upon

a motion by the government. See 181 F.3d at 136.

In Booker, the Supreme Court excised the statutory section

that had made the Guidelines mandatory, thus rendering them

advisory. 543 U.S. at 245; see United States v. Bras, 483 F.3d

103, 105 (D.C. Cir. 2007). As a consequence, numerous circuits

have since held that a sentencing judge may now take a

defendant’s cooperation with authorities into account in crafting

an appropriate sentence, even if the government declines to file

a motion pursuant to § 5K1.1.2

 Nonetheless, as a procedural

matter a sentencing court must still begin its analysis by

calculating the correct Guidelines sentence. See Nelson v.

United States, 129 S. Ct. 890, 891 (2009); Gall v. United States,

552 U.S. 38, 49 (2007); Rita v. United States, 551 U.S. 338, 351

(2007).3 Most (but not all) circuits have held that calculating the

correct Guidelines sentence includes taking into account any

traditional Guidelines-based departure, such as that authorized
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4

See United States v. Wallace, 461 F.3d 15, 32 (1st Cir. 2006);

United States v. Fernandez, 443 F.3d 19, 26, 33 (2d Cir. 2006); United

States v. Vazquez-Lebron, 582 F.3d 443, 445 (3d Cir. 2009); United

States v. Davis, 478 F.3d 266, 273 (5th Cir. 2007); United States v.

Blue, 557 F.3d 682, 686 (6th Cir. 2009); United States v. Plaza, 471

F.3d 928, 930 (8th Cir. 2006); United States v. Crawford, 407 F.3d

1174, 1179, 1181-83 (11th Cir. 2005). Compare United States v.

Fancher, 513 F.3d 424, 427 n.1 (4th Cir. 2008) (including traditional

departures in the Guidelines calculation), with United States v. Hawes,

309 F. App’x 726, 732 n.2 (4th Cir. 2009) (unpublished opinion)

(suggesting that Gall may have rendered this requirement obsolete).

But see United States v. Arnaout, 431 F.3d 994, 1003 (7th Cir. 2005)

(finding “that the concept of ‘departures’ has been rendered obsolete

in the post-Booker world”); United States v. Mohamed, 459 F.3d 979,

986-87 (9th Cir. 2006) (same).

upon a government motion by § 5K1.1.4 In this case, the

government sought and the court granted a Guidelines departure

under § 5K1.1.

The second constraint on sentencing was (and is) any

applicable mandatory minimum sentence set forth in the statute

that the defendant violated. The relevant statute here, 21 U.S.C.

§ 841, contains a mandatory minimum, providing that any

person convicted of possessing with intent to distribute 50 grams

or more of cocaine base “shall be sentenced to a term of

imprisonment which may not be less than 10 years or more than

life.” 21 U.S.C. § 841(b)(1)(A); see id. § 841(b)(1)(A)(iii). As

noted in Part I, Motley admitted that he possessed with intent to

distribute more than 50 grams of cocaine base. Plea Agreement

¶ 1. And he does not suggest that anything in Booker affects the

application of the 10-year (120-month) mandatory minimum

sentence to his case. See United States v. Duncan, 413 F.3d 680,

683 n.3 (7th Cir. 2005) (noting that the “courts of appeals to

have addressed this issue have concluded that Booker does not

apply to statutory mandatory minimum sentences”).
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5

See Plea Agreement ¶ 20 (advising Motley that, “even if the . . .

United States Attorney’s Office for the District of Columbia

determines that [he] provided substantial assistance . . . for purposes

of Section 5K1.1 . . . , th[e] Office reserves its right to decline to file

a departure motion pursuant to 18 U.S.C. § 3553(e)”).

As with a traditional departure from the Guidelines, there

are circumstances under which a district court may depart from

the statutory minimum sentence. In terms that parallel the

language of § 5K1.1, section 3553(e) states:

Upon motion of the Government, the court shall have

the authority to impose a sentence below a level

established by statute as a minimum sentence so as to

reflect a defendant’s substantial assistance in the

investigation or prosecution of another person who has

committed an offense.

18 U.S.C. § 3553(e). The Supreme Court has made clear that

§ 3553(e) “requires a government motion . . . before the court

may impose such a sentence.” Melendez v. United States, 518

U.S. 120, 125-26 (1996); see In re Sealed Case, 181 F.3d at 133.

The government’s refusal to file a § 3553(e) motion,

however, is not unreviewable. A district court may, for

example, grant relief if the government’s refusal breaches its

agreement to file such a motion. In re Sealed Case, 181 F.3d at

142; see Wade v. United States, 504 U.S. 181, 185 (1992). No

such breach is claimed here.5

 In addition, “district courts have

authority to review a prosecutor’s refusal to file a substantialassistance motion and to grant a remedy if they find that the

refusal was based on an unconstitutional motive[,] . . . say,

because of the defendant’s race or religion.” Wade, 504 U.S. at

186. Again, Motley does not claim that the government had a

discriminatory motive in this case, and, to the contrary, the
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district court concluded that the government “appeared to have

operated in good faith and not discriminated.” Sentencing Hr’g

Tr. 3 (July 22, 2008). 

Finally, a court may grant a remedy if it finds that the

government’s refusal to file a § 3553(e) motion violates due

process because it is “not rationally related to any legitimate

government end.” Wade, 504 U.S. at 186; see In re Sealed

Case, 181 F.3d at 142; United States v. White, 71 F.3d 920, 924

(D.C. Cir. 1995). That is Motley’s sole claim here. See

Appellant’s Br. xv. Motley notes that both § 5K1.1 and

§ 3553(e) permit motions based upon substantial assistance, and

that the government stated he had provided such assistance

when it filed its motion under § 5K1.1. Arguing that there is no

difference in the meaning of “substantial assistance” under the

two provisions, he contends that it was irrational for the

government to file under § 5K1.1 and not under § 3553(e). This

contention has two defects.

First, Motley’s implicit suggestion that the government

must file a § 3553(e) motion any time it files a § 5K1.1 motion

is inconsistent with the Supreme Court’s decision in Melendez

v. United States. There, the Court held that a government

motion under § 5K1.1, “attesting to the defendant’s substantial

assistance in a criminal investigation and requesting that the

district court depart below the minimum of the applicable

sentencing range under the Sentencing Guidelines,” does not

also permit “the district court to depart below any statutory

minimum sentence.” Melendez, 518 U.S. at 122. The district

court does not have the latter authority, the Supreme Court held,

unless the government files a motion expressly requesting or

authorizing such a departure pursuant to § 3553(e). Id. at 125-

26. Although the Court did not specifically address whether a

court could compel the government to file a motion under

§ 3553(e) merely because the government filed one under
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§ 5K1.1, the plain implication of the Court’s opinion is that it

cannot. See id. at 130 (“What is at stake in the long run is

whether the Government can make a motion authorizing the

district court to depart below the Guidelines range but

withholding from the district court the power to depart below the

statutory minimum.”).

Second, Motley’s contention that it is necessarily irrational

for the government to refuse to file under § 3553(e) once it finds

that a defendant has provided substantial assistance

misapprehends the role that substantial assistance plays in a

§ 3553(e) (or § 5K1.1) motion. As the Supreme Court explained

in Wade v. United States, “although a showing of assistance is

a necessary condition for relief, it is not a sufficient one.” 504

U.S. at 187; see id. at 185 (stating that both § 3553(e) and

§ 5K1.1 “give[] the Government a power, not a duty, to file a

motion when a defendant has substantially assisted”); White, 71

F.3d at 923 (declaring that “the mere fact that the defendant has

rendered substantial assistance does not entitle the defendant to

a government motion”). Because substantial assistance is only

a threshold requirement, see White, 71 F.3d at 924, the

government may have reasonable grounds for declining to file

for a departure notwithstanding that the defendant has provided

such assistance. As the Wade Court noted, “the Government’s

decision not to move may [be] 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. And just as it may be rational

for the government to decline to move under either § 5K1.1 or

§ 3553(e) even if the defendant has provided substantial

assistance, a “rational assessment of the cost and benefit” may

lead the government to move for a departure under § 5K1.1 but

not for a further departure under § 3553(e).
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6

Because the government has explained its rationale, we need not

determine the circumstances under which it may be required to do so.

Cf. Wade, 504 U.S. at 186, 187 (holding that Wade’s claim that the

government “arbitrarily” withheld a substantial assistance motion

“failed to rise to the level warranting judicial enquiry” (internal

quotation marks omitted)).

The government has articulated such a rational assessment

here.6

 It acknowledges that Motley provided substantial

assistance with respect to certain law enforcement

investigations, and that he therefore deserved a lower sentence

than he would otherwise have received. It notes, however, that

by agreeing not to file repeat papers, it saved Motley from a

statutory mandatory sentence of life imprisonment. See 21

U.S.C. § 851(a)(1); id. § 841(b)(1)(A). Moreover, it also filed

a motion under § 5K1.1 for a departure from the Sentencing

Guidelines, which ultimately led to a sentence of 120 months

rather than a Guidelines sentence of 262-327 months.

The government’s position is that Motley’s assistance

justified such a substantial sentence reduction, but not more.

That position is not irrational. As the government explained to

the district court, its recommended sentence “represent[ed] a

significant reduction in [Motley’s] applicable guideline range,

while recognizing that [he] has significant criminal culpability.”

Sentencing Motion 9. The government also believed that

Motley had been less than fully forthcoming in his discussions

with law enforcement. His “long-term and extensive history of

drug dealing . . . and the level of respect he enjoyed around the

neighborhood, suggest[ed] that [he] had a more intimate

knowledge of the violence around that area than he chose to

share.” Id. at 5. “In addition, at least one [prosecutor]

questioned [his] truthfulness.” Id. 
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The government has a legitimate interest in ensuring that

the sentence the court imposes “reflect[s] the seriousness of the

offense” and “provide[s] just punishment.” 18 U.S.C.

§ 3553(a)(2) (listing factors a district court must consider in

imposing a sentence). And it surely was rational for the

government to conclude that, although substantial assistance

may have justified substantially reducing Motley’s potential

sentence, his repeated drug dealing was still sufficiently serious

to require a sentence of at least 120 months’ incarceration.

Moreover, as this court recognized in United States v. White,

“the government has a legitimate interest in having a defendant

provide more assistance [rather] than less.” 71 F.3d at 924.

Hence, it was also rational for the government to decline to

move for the full departure permitted by § 3553(e) when it had

doubts about the completeness of Motley’s cooperation. In light

of these circumstances, we detect no due process violation in the

government’s refusal to file a § 3553(e) motion. 

III

 Because the government’s refusal to file a departure motion

was “rationally related to [a] legitimate Government end,”

Wade, 504 U.S. at 186, we reject Motley’s challenge to his

sentence and uphold the judgment of the district court.

Affirmed.