United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 09-3135

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United States of America, *

*

Appellee, *

* Appeal from the United States

v. * District Court for the 

* District of Minnesota.

Coby Levan Richardson, *

* [UNPUBLISHED]

Appellant. *

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Submitted: May 10, 2010

Filed: August 19, 2010 

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Before WOLLMAN, SMITH, and COLLOTON, Circuit Judges.

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PER CURIAM.

Coby Richardson pleaded guilty to one count of distribution of cocaine base

("crack cocaine"), in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A), pursuant to

a written plea agreement. Because the amount of crack cocaine was more than 50

grams, Richardson faced a ten-year statutory mandatory minimum sentence. As part

of his plea agreement, Richardson agreed to attempt to provide substantial assistance

to the government. In return, the government agreed that if Richardson provided

substantial assistance, it would consider filing a motion for downward departure

pursuant to U.S.S.G. § 5K1.1 and 18 U.S.C. § 3553(e). Before sentencing, the

government determined that Richardson had not provided substantial assistance and

declined to file a motion for downward departure. At sentencing, Richardson moved
1

The Honorable David S. Doty, United States District Judge for the District of

Minnesota. 

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to compel the government to file a motion for downward departure. The district court1

denied Richardson's motion and sentenced Richardson to the mandatory minimum of

10 years' imprisonment. On appeal, Richardson argues that the district court erred in

denying his motion to compel because the government wrongly refused to bring a

substantial assistance motion on his behalf. Richardson contends that the court should

have conducted an evidentiary hearing. Richardson also argues that his trial counsel

provided ineffective assistance. The district court is affirmed. 

I. Background

On November 12, 2007, a confidential informant contacted Richardson and

Richardson agreed to sell the confidential informant crack cocaine. Law enforcement

officers observed the subsequent transaction take place and recorded it. Richardson

sold the confidential informant two packages of crack cocaine in amounts of 60 and

61 grams, respectively. Subsequently, Richardson was charged in a one-count

indictment with distribution of crack cocaine, in violation of §§ 841(a)(1) and

(b)(1)(A). Because the offense involved more than 50 grams of crack cocaine,

Richardson faced a ten-year mandatory minimum sentence.

On May 1, 2009, Richardson pleaded guilty. As part of his written plea

agreement, Richardson agreed to attempt to provide substantial assistance to the

government in its prosecution of another individual in a separate investigation. The

government agreed that if Richardson provided substantial assistance it would, in turn,

file a motion for downward departure. The express terms of the plea agreement stated

that it was in the government's "sole discretion" to determine whether Richardson's

cooperation amounted to substantial assistance and whether to file a motion for

downward departure. Richardson agreed to these terms and signed the plea agreement

in the presence of the district court.
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The government determined that Richardson had not provided substantial

assistance and decided not to file a motion for downward departure. At sentencing,

Richardson argued that the government should be required to file a motion for

downward departure. The district court concluded that "the defendant has not made

a substantial showing that the government's decision was based on an unconstitutional

motive or bad faith, and an evidentiary hearing would not be warranted in this case."

The district court then denied Richardson's motion to compel the government to file

a downward departure motion and sentenced Richardson to the mandatory statutory

minimum of 10 years' imprisonment.

II. Discussion

A. Substantial Assistance Motion

On appeal, Richardson maintains that the government wrongly refused to bring

a substantial assistance motion on his behalf. Richardson urges that the government

violated the heightened duties of good faith and fair dealing that should apply to plea

agreements. Richardson further asserts that where a reasonable dispute exists whether

a defendant provided substantial assistance, the government alone should not answer

the question. Finally, Richardson asserts that the district court erred in denying his

request for an evidentiary hearing challenging the government's refusal to file a

motion for downward departure and his motion to compel the government to make

such a motion. 

We review the denial of a defendant's motion to compel the prosecution to

move for downward departure under the Guidelines based on substantial assistance

for abuse of discretion. United States v. McClure, 338 F.3d 847, 850 (8th Cir. 2003).

A district court can review the government's decision not to file a

substantial assistance motion only if a defendant has made a substantial

threshold showing that the decision was based on an unconstitutional

motive or was not rationally related to any legitimate Government end,

such as when its decision was made in bad faith. A plea agreement in
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which the government specifically retains its discretion under § 5K1.1

will defeat a motion to compel unless the defendant is able to show

unconstitutional motive or bad faith.

Id. (internal quotations and citations omitted). Richardson's arguments for reversal

are unpersuasive. Here, the government specifically retained its discretion to move for

a substantial assistance departure and Richardson has failed to meet McClure's

threshold showing requirement. 338 F.3d at 850. Richardson argues that he actually

provided substantial assistance but that the government did not consider it substantial

enough due to factors outside of Richardson's control. He also contends that contract

principles should apply to hold the government to its bargain in that Richardson gave

up valuable constitutional rights in reliance upon the government's promise.

Richardson, however, supplies no authority in support of his contract theory and

ignores language in the plea agreement that the government only conditionally

"agreed to consider defendant's assistance;" it did not promise to file a motion. The

agreement further provided that

the defendant understands that the government is not obligated to accept

any tendered cooperation on the defendant's part. If the government, in

its sole discretion, chooses not to accept tendered cooperation, the

defendant will not be rewarded for such tendered cooperation and will

not be allowed to withdraw from the plea agreement based upon that

ground.

Richardson's "showing must involve clear evidence that the prosecutor's motive

was improper, rather than a mere allegation that substantial assistance was provided

and that the prosecutor had an improper motive for declining to file a motion for a

downward departure." United States v. Fields, 512 F.3d 1009, 1011 (8th Cir. 2008).

Richardson has not made that showing.
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B. Ineffective Assistance of Counsel

Next, Richardson argues that his trial counsel ignored his wishes to

"vigorously" argue against the disputed crack-powder cocaine ratio, failed to make an

adequate record, and failed to preserve his right to a sentence based upon the then

forthcoming changes to the crack-powder ratio. Richardson submits that this

constitutes ineffective assistance of counsel. 

"When a convicted defendant complains of the ineffectiveness of counsel's

assistance, the defendant must show that counsel's representation fell below an

objective standard of reasonableness." Brown v. United States, 311 F.3d 875, 878 (8th

Cir. 2002) (internal quotation, alteration, and citation omitted). "To establish a claim

of ineffective assistance . . . a claimant must demonstrate that counsel's performance

was deficient, and that the deficient performance prejudiced the defense." Wajda v.

United States, 64 F.3d 385, 387 (8th Cir. 1995) (internal quotations and citation

omitted).

"We have stated time and again that ineffective assistance claims are best

presented in a motion for post-conviction relief under 28 U.S.C. § 2255." United

States v. Martinez-Cruz, 186 F.3d 1102, 1105 (8th Cir. 1999). Richardson makes no

convincing argument that this case presents an exception to our general rule. We

therefore decline to review his ineffective assistance of counsel arguments.

III. Conclusion

We affirm.

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