FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

January 9, 2009

THOMAS K. KAHN

CLERK

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 06-16698

Non-Argument Calendar

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D.C. Docket No. 05-00389-CR-T-23TBM

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JAMES DORSEY,

a.k.a. Mountain Man,

SANDRA AVERY,

a.k.a. Sandra Dorsey,

Defendants-Appellants.

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Appeal from the United States District Court

for the Middle District of Florida

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(January 9, 2009)

Before TJOFLAT, BIRCH and WILSON, Circuit Judges.

WILSON, Circuit Judge:
Upon sua sponte reconsideration of this appeal, we vacate our prior opinion

and substitute the following in its place.

James Dorsey (“Dorsey”) and Sandra Avery appeal their jury convictions for

drug conspiracy and drug distribution charges. Both contend that pretrial motions

to suppress evidence seized from their residence and introduced at their trial should

have been granted because the affidavits supporting the search warrants contained

false statements and lacked probable cause. After careful review, we find that

there was sufficient corroborating information in the affidavits to support a finding

of probable cause and affirm their convictions without further discussion.

Dorsey also appeals his sentence. He argues that the government refused to

file a motion to reduce his sentence pursuant to United States Sentencing Guideline

§ 5K1.1 to punish him for exercising his Sixth Amendment right to a jury trial,

thereby denying him due process of law. After careful review, we affirm.

BACKGROUND

At sentencing, the district court determined that Dorsey’s advisory

Guidelines range was 168 to 210 months. Dorsey then moved the court to compel

the government to file a § 5K1.1 motion because after his arrest he immediately

cooperated with the police. Dorsey’s cooperation led to his drug supplier’s arrest

and the seizure of a quarter kilogram of cocaine. About four months after his initial

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arrest and cooperation, Dorsey was arrested on the instant federal drug charges.

Asserting that the government had earlier informed him that he could earn a

§ 5K1.1 departure because of his cooperation if he pleaded guilty, Dorsey argued

that the government impermissibly refused to file the motion once Dorsey decided

to go to trial. The government responded that it never told Dorsey that he had

earned a § 5K1.1 departure but rather told Dorsey that the circumstances

surrounding his minimal amount of cooperation would be considered if he

cooperated fully and completely. At sentencing, the government stated that Dorsey

“chose not to continue with cooperation. He chose to go to trial.” Dorsey

responded that irrespective of whether his cooperation was minimal, it was obvious

that his cooperation was complete, and the government’s refusal to move for a §

5K1.1 departure based on his decision to go to trial was an unconstitutional motive.

The district court denied Dorsey’s motion.

DISCUSSION

We review de novo the district court’s authority to depart downward from

the guideline range under § 5K1.1 in the absence of a motion by the government.

See United States v. Forney, 9 F.3d 1492, 1498 (11th Cir. 1993) (citation omitted).

Section 5K1.1 of the Sentencing Guidelines provides that “[u]pon motion of

the government stating that the defendant has provided substantial assistance in the

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investigation or prosecution of another person who has committed an offense, the

court may depart from the guidelines.” U.S. SENTENCING GUIDELINES MANUAL §

5K1.1. We have stated that the government has “ ‘a power, not a duty, to file a

motion when a defendant has substantially assisted.’ ” Forney, 9 F.3d at 1500

(quoting Wade v. United States, 504 U.S. 181, 185, 112 S. Ct. 1840, 1843 (1992)).

Therefore, a district court cannot grant a downward departure for substantial

assistance absent a motion by the government. Id. at 1501. However, the United

States Supreme Court held 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,” like “race or

religion.” Wade, 504 U.S. at 185-86. A defendant who merely claims to have

provided substantial assistance or who makes only generalized allegations of an

improper motive is not entitled to a remedy or to even an evidentiary hearing. Id.

at 186. Thus, judicial review is appropriate only “when there is an allegation and a

substantial showing that the prosecution refused to file a substantial assistance

motion because of a constitutionally impermissible motivation.” Forney, 9 F.3d at

1502 (citation and footnote omitted) (emphasis in original).

We have not previously decided whether the government’s refusal to file a §

5K1.1 motion to punish a defendant for exercising his constitutional right to a jury

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trial is an unconstitutional motive under Wade. We need not reach that issue here

because Dorsey is unable to make the required threshold showing of impropriety.

The government offered Dorsey a § 5K1.1 substantial assistance downward

departure in exchange for both Dorsey’s cooperation and guilty plea, and Dorsey

has expressly acknowledged that the government’s offer was conditioned on his

entry of a guilty plea. Dorsey’s admission demonstrates that the offer was made

“in the ‘give-and-take’ of plea bargaining,” in which Dorsey was “free to accept or

reject the prosecution’s offer.” Thus, no dispute exists that the government made

its offer in the context of a plea negotiation, which offer Dorsey rejected when he

chose to go to trial. In this context, there was “no such element of punishment or

retaliation,” and the government’s later refusal to file a § 5K1.1 motion was

constitutionally permissible under Bordenkircher v. Hayes, 434 U.S. 357, 363, 98

S. Ct. 663, 668 (1978) (citation omitted) (discussing the “give and take” and

“mutuality of advantage” of plea bargaining).

Notwithstanding the context in which the offer was made, the record

independently supports an affirmance. First, no claim or evidence exists that

Dorsey could have provided any assistance in expectation of a § 5K1.1 motion

because he had already provided all of the assistance he would ever provide before

facing the federal charges (and before the government raised the possibility of a §

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5K1.1 departure). Next, Dorsey admits that he was aware that the government did

not consider Dorsey’s prior assistance sufficient to warrant a § 5K1.1 motion and

would condition any departure motion on Dorsey’s providing future substantial

assistance (in addition to pleading guilty). Dorsey’s admission strongly supports

the government’s proffer that it legitimately withheld the § 5K1.1 motion in the

absence of substantial assistance from Dorsey. Lastly, a careful review of the

record suggests that the district court properly found that Dorsey’s proffer in

support of his motion was insufficient to constitute the “substantial showing” of

unconstitutional motivation or actual vindictiveness necessary to the claimed

constitutional violation.

Finally, Dorsey argues that his sentence was otherwise unreasonable. We

review a final sentence imposed by the district court for reasonableness, which

requires that we review the sentence under an abuse-of-discretion standard. Gall v.

United States, 552 U.S. __, 128 S. Ct. 586, 594 (2007). Dorsey’s guidelines range

was 168 to 210 months, and the district court sentenced him to 210 months. We

ordinarily expect a sentence within the guidelines range to be reasonable, and the

appellant has the burden of establishing the unreasonableness of the sentence in

light of the record and the § 3553(a) factors. United States v. Talley, 431 F.3d 784,

788 (11th Cir. 2005). Having considered Dorsey’s arguments and the record, we

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conclude that the district court did not abuse its discretion in sentencing Dorsey.

AFFIRMED.

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