PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.  No. 01-4047

DONNTRAIE LEMANES BUTLER,

Defendant-Appellant. 

Appeal from the United States District Court

for the Middle District of North Carolina, at Durham.

William L. Osteen, District Judge.

(CR-00-151)

Argued: September 28, 2001

Decided: December 3, 2001

Before WILKINSON, Chief Judge, and WIDENER and

WILLIAMS, Circuit Judges.

Affirmed by published opinion. Chief Judge Wilkinson wrote the

opinion, in which Judge Widener and Judge Williams joined. 

COUNSEL

ARGUED: Tamura D. Coffey, WILSON & ISEMAN, L.L.P.,

Winston-Salem, North Carolina, for Appellant. Sandra Jane Hairston,

Assistant United States Attorney, Greensboro, North Carolina, for

Appellee. ON BRIEF: Kevin B. Cartledge, WILSON & ISEMAN,

L.L.P., Winston-Salem, North Carolina, for Appellant. Benjamin H.

White, Jr., United States Attorney, Greensboro, North Carolina, for

Appellee. 
OPINION

WILKINSON, Chief Judge: 

Defendant Donntraie Lemanes Butler appeals the district court’s

judgment sentencing him to 161 months imprisonment. Butler argues

that the court should have compelled the government to file a downward departure motion pursuant to 18 U.S.C. § 3553(e) and § 5K1.1

of the United States Sentencing Guidelines in view of the substantial

assistance he rendered. Because Butler has not demonstrated that the

government’s refusal to make the motion was based on an unconstitutional motive, and because that refusal was rationally related to the

legitimate government end of not rewarding defendants who threaten

the lives of other defendants while in custody, we affirm the judgment

of the district court. 

I.

On May 17, 2000, Donntraie Lemanes Butler and co-defendants

Darryl Bailey, Terrell Truesdale, Renaldo Davenport, and Corey Rutledge were arrested shortly after the robbery of First Charter Bank in

Kannapolis, North Carolina. At the time of his arrest, Butler waived

his Miranda rights, provided a written statement, and accompanied

officers to the location where money from the bank robbery was hidden. 

On May 30, 2000, a federal grand jury for the Middle District of

North Carolina indicted Butler for bank robbery, armed bank robbery,

and brandishing and discharging a firearm during and in relation to

a crime of violence, in violation of 18 U.S.C. §§ 2113(a) and 2,

2113(d) and 2, and 924(c)(1)(A)(iii) and 2. Through counsel, Butler

provided a detailed proffer to Assistant United States Attorney Lisa

Boggs ("AUSA Boggs") concerning the bank robbery. On July 6,

2000, he entered into a plea agreement with the government, pleading

guilty to the armed bank robbery and firearms counts. 

After the plea hearing, Butler’s counsel spoke to Butler at the

request of AUSA Boggs concerning co-defendant Bailey’s knowledge

of the firearms used in the bank robbery. Butler recalled specific con2 UNITED STATES v. BUTLER
versations with Bailey during and after a basketball game on the day

before the robbery. Butler’s counsel conveyed this information to

AUSA Boggs. Then, on July 12, 2000, AUSA Boggs debriefed Butler

on the robbery. The next day AUSA Boggs again debriefed Butler

and prepared him to testify at Bailey’s trial on the firearms charge. 

The government does not contest that Butler was cooperative at all

times. Indeed, though AUSA Boggs did not end up calling Butler to

testify at Bailey’s trial, she admitted that her decision not to call Butler as a witness after bringing him to the courthouse bore no relationship to her assessment of the truthfulness of his potential testimony.

Rather, she stated that she made a tactical decision to conclude the

government’s evidence after the testimony of co-defendants Davenport and Rutledge. 

Butler’s sentencing hearing was scheduled for November 2000.

Shortly before the hearing, AUSA Boggs informed Butler’s counsel

that counsel for Rutledge and the United States Marshals Service told

her that while incarcerated, Butler had threatened Rutledge’s life, as

well as the lives of Rutledge’s family and dogs.1 AUSA Boggs further

informed Butler’s counsel that in view of Butler’s recent behavior in

custody, the government would not file a substantial assistance

motion for him. 

AUSA Boggs also informed Butler’s counsel that the government

would be recommending a 50 percent reduction for Davenport and

Rutledge, the two co-defendants who testified at trial, and a 25 percent reduction for co-defendant Truesdale who, like Butler, was not

called to testify at trial. In making these downward departure motions,

the government did not dispute that Truesdale had initially not told

the government that he carried both weapons used during the robbery,

or that Rutledge had lied by telling the government that Butler had

carried one of the weapons during the robbery. 

Butler’s sentencing hearing was continued until December 15,

2000. On December 7, 2000, Butler filed a motion to compel the gov1AUSA Boggs was later informed by Davenport that Butler had also

threatened his life, and that he had overheard Butler threaten to kill Rutledge’s family and dogs. 

UNITED STATES v. BUTLER 3
ernment to file a motion for downward departure pursuant to § 5K1.1

of the Sentencing Guidelines and 18 U.S.C. § 3553(e). In the alternative, Butler moved the court to downwardly depart in recognition of

his substantial assistance. Butler alleged that the government had no

rational basis for refusing to file a substantial assistance motion on his

behalf. The other defendants were sentenced on December 15, 2000,

but Butler’s sentencing hearing was continued until December 29 so

that his motion to compel could be heard. 

At the December 29 hearing, AUSA Boggs admitted that Butler

had rendered substantial assistance sufficient to warrant a § 5K1.1

motion as of the date of Bailey’s trial. She also conceded that the sole

reason the government refused to file the motion for Butler was his

conduct while incarcerated, when he threatened the lives of Rutledge

and Davenport, causing the United States Marshals Service to relocate

Butler. At the conclusion of this hearing, the district court stated that

it was unable to rule and the hearing was continued until January 5,

2001. 

At the January 5 hearing, the court found as facts that the government admitted both that Butler had provided the government with

substantial assistance in the investigation and prosecution of this bank

robbery, and that Butler had cooperated with the government as much

as another co-defendant who received a downward departure motion.

The court further found that while four of the co-defendants were

housed in the same jail, a Deputy United States Marshal notified

AUSA Boggs that Butler had threatened Rutledge, causing the United

States Marshals Service to move Butler to another facility. Finally,

the court determined that Butler’s threatening conduct while incarcerated was the sole reason for the government’s refusal to file a downward departure motion for him. 

The court found that the government had not declined to file a substantial assistance motion for Butler out of an unconstitutional motive

or without a legitimate government concern. Accordingly, the court

denied Butler’s motion and sentenced him to 161 months imprisonment. However, in so concluding, the court expressed its reservations

about the government’s handling of this case, and voiced its hope that

this court would reverse its decision. Butler appeals. 

4 UNITED STATES v. BUTLER
II.

We review de novo the legal questions raised by the district court’s

application of the Sentencing Guidelines. United States v. Blake, 81

F.3d 498, 503 (4th Cir. 1996). However, we examine the district

court’s factual findings informing a sentencing decision for clear

error. Id. Thus, we will show deference to the district court’s factual

determinations underlying its conclusion that the government had a

rational basis for denying Butler a downward departure motion. But

we will look afresh at the court’s legal conclusion that those facts

constitute a rational basis for the government’s decision. 

District courts are empowered, "[u]pon motion of the Government," to impose a sentence below the statutory minimum "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). Similarly, § 5K1.1 of the United States Sentencing Guidelines permits district courts to go below the minimum required under

the Guidelines "[u]pon motion of the government stating that the

defendant has provided substantial assistance in the investigation or

prosecution of another person who has committed an offense." Thus,

under both § 3553(e) and § 5K1.1, the district court’s authority to

depart is conditioned upon the government’s filing a "substantial

assistance" motion. 

There is a reason why the plain language of these provisions "gives

the Government a power, not a duty, to file a motion when a defendant has substantially assisted." Wade v. United States, 504 U.S. 181,

185 (1992). It is so that the prosecutor will have the greatest possible

leverage in securing the cooperation of witnesses. If the government

is in control of the motion, then it will have the maximum ability to

elicit the sort of cooperation that is crucial to obtaining valid convictions. Thus, unless the government’s failure to file a substantial assistance motion is "based on an unconstitutional motive," such as racial

or religious animus, or is "not rationally related to any legitimate

Government end," district courts have no authority to review a prosecutor’s refusal to file a substantial assistance motion and grant a remedy. Wade, 504 U.S. at 185-86. 

This court has followed the Supreme Court’s lead and strictly interpreted the Wade exceptions, holding that the decision not to make a

downward departure motion is properly within the government’s disUNITED STATES v. BUTLER 5
cretion. See, e.g., United States v. Maddox, 48 F.3d 791, 795-97 (4th

Cir. 1995); United States v. Wallace, 22 F.3d 84, 87-88 (4th Cir.

1994). Indeed, we have held that a defendant’s allegation that a similarly situated co-defendant received a substantial assistance motion

does not justify the district court’s departing downward in the face of

government opposition. United States v. LeRose, 219 F.3d 335, 342-

43 (4th Cir. 2000). 

III.

Butler does not suggest that the government’s refusal to file a substantial assistance motion on his behalf was based on an unconstitutional motive. Rather, he contends that the government’s reason for

refusing to file the motion was not rationally related to a legitimate

government end. In particular, Butler argues that the government

admitted that its refusal was not related to the type or quality of assistance he provided. Indeed, Butler submits that the government conceded both that he rendered substantial assistance and that its reason

for refusing to file a downward departure motion was based upon

alleged acts of wrongdoing that occurred after he rendered substantial

assistance — namely, threats he made on the lives of co-defendants

while incarcerated. 

In addition, Butler maintains that the government made substantial

assistance motions for similarly situated co-defendants in this case.

According to Butler, the disparate treatment he received further demonstrates that the government’s refusal to file a downward departure

motion for him was not rationally related to a legitimate government

end. 

There are three critical problems with Butler’s position. First, the

threats Butler issued to his co-defendants are in fact rationally related

to the type or quality of assistance he rendered. A defendant is not

rendering "substantial assistance" if he is threatening the life of

another government witness before his sentencing hearing. Indeed, by

obstructing the orderly administration of the criminal justice system,

he is engaging in the very antithesis of substantial assistance. Under

such circumstances, the government’s refusal to file a downward

departure motion is rationally related to the type or quality of assistance he provided. To hold otherwise is to require the government to

reward a criminal defendant who has threatened criminal misconduct

yet again. 

6 UNITED STATES v. BUTLER
Second, even if it were somehow the case that Butler’s threats were

not rationally related to the assistance he provided, that is not the relevant inquiry under Wade. We are bound by Wade, not by the Eighth

Circuit’s more restrictive view that Butler has urged upon us. See

United States v. Anzalone, 148 F.3d 940, reh’g en banc granted, opinion vacated, 148 F.3d 940, opinion reinstated, reh’g en banc denied,

161 F.3d 1125 (8th Cir. 1998). The question under Wade is whether

the government’s refusal to make a downward departure motion is

rationally related to any legitimate government end. See 504 U.S. at

186. And there can be no doubt that the government’s behavior in this

case passes this test. The government’s interest in deterring a defendant from threatening the life of a co-defendant is not merely legitimate. It is compelling. A contrary conclusion would jeopardize the

government’s ability not only to secure cooperation from witnesses

who could be intimidated into silence, but also to ensure a prison

environment free from threats on inmates’ lives. 

Finally, Butler’s allegation of disparate treatment is both factually

incorrect and legally irrelevant. Factually, Butler and his codefendants are not similarly situated because Butler is the only defendant who is believed to have threatened someone’s life while incarcerated. And legally, Wade does not mandate a game of comparisons.

Rather, the correct inquiry is whether the government acted on the

basis of an unconstitutional motive or a basis not rationally related to

any legitimate government end with respect to the individual defendant before the court. See LeRose, 219 F.3d at 342-43. The government’s filing of downward departure motions for co-defendants is

relevant only insofar as it bears on that question. Butler has not made

the required showing of relevance that the government acted improperly with respect to him. 

Thus, the district court properly denied Butler’s motion to compel.2

For the foregoing reasons, the judgment of the district court is 

AFFIRMED.

2The district court’s refusal to grant Butler’s alternative motion for

downward departure pursuant to § 5K2.0 of the Sentencing Guidelines is

not reviewable on appeal. United States v. Bayerle, 898 F.2d 28, 30-31

(4th Cir. 1990). The court’s refusal to depart downward was not based

on the mistaken view that it lacked the authority to depart. See id.

UNITED STATES v. BUTLER 7