In the

United States Court of Appeals

For the Seventh Circuit

No. 07-2307

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

DARNELL C. BILLINGS,

Defendant-Appellant.

Appeal from the United States District Court

for the Central District of Illinois.

No. 05 CR 20041—Michael P. McCuskey, Chief Judge.

ARGUED APRIL 16, 2008—DECIDED OCTOBER 8, 2008

Before EASTERBROOK, Chief Judge,and WOOD and WILLIAMS,

Circuit Judges.

WILLIAMS, Circuit Judge. Defendant Darnell Billings

received a statutory minimum sentence of life imprisonment after pleading guilty to dealing over 50 grams of

crack cocaine. He claims the government should have

rewarded his cooperation by filing a substantial assistance

motion under 18 U.S.C. § 3553(e), which would have

freed the district court to sentence him below the statutory minimum. Billings also claims the government should
2 No. 07-2307

have told him that his incarcerated status would make

it more difficult for him to cooperate with authorities.

Because the government did not act improperly in withholding the substantial assistance motion and because

it had no duty to inform Billings about the negative

consequences of his incarceration, we affirm.

I. BACKGROUND

On September 2, 2004, Billings sold crack cocaine to a

confidential informant in Champaign, Illinois. He was

arrested for this conduct on August 5, 2005, and later

indicted on one count of knowingly possessing with the

intent to distribute more than 50 grams of crack cocaine,

in violation of 21 U.S.C. § 841(a)(1).

At an August 3, 2006, hearing, Billings pled guilty. In

doing so, he testified that he understood that because of

two prior qualifying drug convictions, he faced a mandatory minimum sentence of life imprisonment unless the

government moved for a downward departure based on

his cooperation and assistance. See id. § 841(b)(1); 18 U.S.C.

§ 3553(e). The district judge promised he would sentence

Billings to less than life imprisonment if the government

moved for a downward departure, but the government stated that Billings had yet to cooperate. After the

hearing, Billings and the government entered a cooperation agreement, the contents of which are not in the record.

On January 12, 2007, Billings appeared for his sentencing

hearing. Billings’s counsel asked to delay sentencing by

sixty days to give Billings more time to cooperate. The
No. 07-2307 3

government did not object to the extension but indicated

that time was running out for Billings. The prosecutor

in charge of the case described how Billings had failed to

take advantage of a previous opportunity to cooperate

before he had been incarcerated:

Prior to [filing the complaint], the government took

the unusual step of asking agents to arrest the

defendant without a warrant on probable cause so

that we could speak with him without any public

filing of charges about this very issue, the fact

that he faced a mandatory sentence of life if he

were to be charged and convicted, and we did that

so that we could advise him of that likely scenario

and to give him the opportunity without any

disclosure to the public that we were giving him

that opportunity.

And after meeting with him in my office and in,

I believe, January of 2005, two years ago, we never

heard from him again; and we ended up filing

the complaint in February of 2005 and then spent

the next six months looking for him, at which point

in August of 2005 he was arrested.

The prosecutor also stated that although Billings had

“made an attempt to meet with law enforcement once”

after pleading guilty, “there was no information that [he]

had provided that was of any assistance to [the agents]

whatsoever.”

On May 25, 2007, Billings appeared for the rescheduled

sentencing hearing. A new prosecutor appeared on behalf

of the government after being briefed on the case by the
4 No. 07-2307

The district court erred by failing to allow Billings to allocute 1

prior to sentencing. See United States v. Luepke, 495 F.3d 443, 451

(7th Cir. 2007); Fed. R. Crim. P. 32(i)(4)(A)(ii). Billings concedes,

however, that he was not prejudiced by this error because he

faced a mandatory minimum life sentence, so there is no

chance that he “would have received a lesser sentence had the

district court heard from him before imposing sentence.” Luepke,

495 F.2d at 451. Billings also does not claim that he would have

said anything that would have changed the government’s

decision to withhold a substantial assistance motion. Additionally, recent changes to sentencing practices for crack cocaine

defendants could not have affected these proceedings because Billings faced a mandatory minimum life sentence. See

United States v. Kimbrough, 128 S. Ct. 558 (2007); United States

Sentencing Commission Guidelines Manual (U.S.S.G.)

§§ 1B1.10, 2D1.1 (2007).

prosecutor in charge about an hour before the hearing. The

new prosecutor stated that the government would not

move for a downward departure because Billings’s attempts to cooperate had not “risen to the level of substantial assistance.” He remarked on Billings’s extensive

criminal history and stated that he was “struck” by the

fact that Billings “managed at age 27 to have 10 children

from six different women, all of whom will now be without a father.” The new prosecutor also acknowledged

that he could not provide any more details on the case

because he was merely standing in for the prosecutor

in charge of the case.

The judge then sentenced Billings to the mandatory

minimum of life imprisonment. Billings filed this appeal.1
No. 07-2307 5

II. ANALYSIS

A. The government did not improperly withhold a

substantial assistance motion.

Billings claims the government improperly withheld a

substantial assistance motion, thereby preventing the

district court from sentencing him below the statutory

minimum of life imprisonment. See 18 U.S.C. § 3553(e)

(“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.”). Although a prosecutor generally has discretion

to withhold such a motion, “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,” or “was not rationally related to any legitimate

Government end.” Wade v. United States, 504 U.S. 181, 185-

86 (1992); see also United States v. Miller, 458 F.3d 603, 605

(7th Cir. 2006). Because Billings did not raise this argument in the district court, our review is for plain error.

See United States v. Olano, 507 U.S. 725, 732 (1992) (district

court must have committed an “error” that is “plain,”

“affect[s] substantial rights,” and “seriously affect[s] the

fairness, integrity or public reputation of judicial proceedings”).

We agree with Billings that there are some gaps in the

record regarding the type and level of assistance that he

provided to the government. The cooperation agreement
6 No. 07-2307

between Billings and the government is absent from the

record. At the first sentencing hearing, the prosecutor

in charge of the case mentioned but did not describe in

any detail how Billings had cooperated after pleading

guilty. And at the rescheduled sentencing hearing, the

new prosecutor was unable to describe any cooperation

attempts since he had joined the case only an hour beforehand. Perhaps the government could have elaborated on

the assistance that Billings had offered and explained why

it had fallen short. Or maybe the government never did

this because Billings never moved to compel the government to file a substantial assistance motion.

At any rate, Billings must make a “substantial threshold

showing” that the government improperly withheld a

substantial assistance motion before he can receive a

remedy or even discovery or an evidentiary hearing on

this issue. Wade, 504 U.S. at 186. Billings tries to do this

by pointing to the new prosecutor’s comments at the

rescheduled sentencing hearing. He claims these comments are evidence that the government withheld a

substantial assistance motion because of Billings’s numerous past convictions and the myriad children he had

fathered. If this were true, the government would have

acted impermissibly. See United States v. Rounsavall, 128

F.3d 665, 669 (8th Cir. 1997) (“[W]hen contemplating

filing a §3553(e) motion, the government cannot base its

decision on factors other than the substantial assistance

provided by the defendant.”). But a closer review of the

transcript from that hearing shows that the new prosecutor

was merely explaining why Billings was eligible for a
No. 07-2307 7

mandatory life sentence and summing up the few facts

that he knew about the case:

There have been attempts to have cooperation.

None of it has risen to the level of substantial

assistance. . . .

. . .

Beyond that, Your Honor, I can only say this is a

sentence that is mandated by Congress. The defendant is a—is the type of defendant Congress

has said fits within the criteria for three strikes.

He has been involved in criminal activity since age

17, and even has a juvenile record before then. He

has accumulated a staggering amount of serious

felony convictions, as well as a number of minor

convictions. He seems to not care at all about the

law.

Another thing that struck me was I’m sad to say he

has managed at age 27 to have 10 children from

six different women, all of whom will now be

without a father. So to that extent, that’s the saddest part about the case in my opinion, Your

Honor.

Your Honor, I can’t provide any more details

because I’m standing in for [the prosecutor in

charge of this case]. This is not my case.

The new prosecutor mentioned Billings’s previous criminal activity to explain why he faced a mandatory life

sentence. And while the new prosecutor might have been
8 No. 07-2307

expressing his disapproval with Billings’s apparent

promiscuity, his remark was merely an aside that seems

unrelated to the government’s decision to withhold the

substantial assistance motion. Indeed, the new prosecutor

acknowledged that he was merely speaking on behalf of

the prosecutor in charge of the case and was not the

person who had decided to withhold a substantial assistance motion. Sentencing Hr’g Tr. 7-8, May 25, 2007.

(“There is no change in the status [of this case]. [The

prosecutor in charge] so advised me approximately an

hour ago.”).

Moreover, Billings’s counsel essentially conceded at

the hearing that the government had a rational basis for

withholding this motion because Billings’s incarceration

had rendered him useless to the government:

[Billings] has met with people several times, agents

several times. But the problem is, is because of his

long incarceration, for whatever reasons, it was

before my time, a person who has been in custody

for a period of time is not a person who people on

the outside are going to deal, talk with, give information to helping themselves with the government.

It was not that he did not try to help the government. It was just he was unable. And I think there

is a very big difference between someone who just

refuses to cooperate with the government and

someone who tries, but because of his situation

is unable.

See also United States v. King, 62 F.3d 891, 895 (7th Cir. 1995)

(“Incarcerated defendants cannot, on balance, provide as
No. 07-2307 9

much assistance as defendants who are free pending

trial.”). Billings does not cite (and we have not found) any

law requiring the government to make a substantial

assistance motion when a defendant makes an unsuccessful yet good faith attempt to help. Rather, under

section 3553(e), the government gets to decide whether

a defendant’s cooperation merits a substantial assistance

motion. See Wade, 504 U.S. at 185 (noting that “the Government [has] a power, not a duty, to file a motion when

a defendant has substantially assisted”); cf. 18 U.S.C.

§ 3553(f) (permitting a court to sentence below a statutory minimum in certain situations even if the government does not support such a sentence). We cannot secondguess the government’s decision to withhold a substantial assistance motion where, as here, its decision was

neither irrational nor based on an impermissible motive.

See Wade, 504 U.S. at 185-87.

B. The government was not required to inform Billings of the difficulty in providing substantial

assistance.

Billings also claims the government had a duty to

inform him that his incarcerated status would make it

harder for him to cooperate, which in turn would diminish

the chances that he would be the beneficiary of a substantial assistance motion. He relies on our decision in King,

where we held that if a defendant is “not fairly informed

of the consequences of his decision to plead guilty, a due

process violation has occurred.” 62 F.3d at 895.
10 No. 07-2307

We do not see how King benefits Billings, as that decision also states that “the failure to inform [the defendant]

of the effect of his incarceration is not the type of constitutional violation that, under Wade, would allow us to review the prosecutor’s decision not to file the motion.” Id.

Moreover, King involved a plea agreement, where the

defendant claimed that the government allowed him to

plead guilty without informing him that he was unlikely

to get a substantial assistance reduction because he was

incarcerated. Id.; see also United States v. Villareal, 491 F.3d

605, 610-11 (6th Cir. 2007). By contrast, Billings did not

enter a plea agreement (and he only entered a cooperation

agreement after pleading guilty), so he cannot claim that

the government improperly induced him to plead guilty

or breached a plea agreement with him. Cf. United States

v. Wilson, 390 F.3d 1003, 1004 (7th Cir. 2004).

It also seems far-fetched that Billings had no inkling

that his ability to assist the government would diminish

once he was imprisoned. Billings knew that the government had delayed arresting and jailing him in hopes that

he would cooperate, presumably because he was a more

valuable asset on the street than in prison. So Billings

had some idea that incarceration would dampen his

chances of receiving a substantial assistance motion.

III. CONCLUSION

The district court’s judgment is AFFIRMED.

10-8-08