United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Argued June 9, 2009

Decided June 15, 2009

Before

 WILLIAM J. BAUER, Circuit Judge

 RICHARD A. POSNER, Circuit Judge

JOHN DANIEL TINDER, Circuit Judge

No. 08-2674

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

ROBERT BLUNTSON,

Defendant-Appellant.

Appeal from the United States District Court

for the Central District of Illinois.

No. 07-30070-001

Jeanne E. Scott,

Judge.

O R D E R

After his arrest for possession of crack with intent to distribute, Robert Bluntson told

the government that he wanted to cooperate in exchange for the possibility of a lower

sentence. He signed an agreement and met once with investigators, but the government

soon learned that he was working on an escape plan and trying to arrange the murder of

his codefendant. The government broke off contact and, not surprisingly, did not file a

substantial-assistance motion. At sentencing Bluntson argued that the government had

acted in bad faith by not moving for a reduced sentence; the district court rejected that

contention and sentenced Bluntson to 20 years’ imprisonment—the mandatory minimum

given the amount of crack and a prior drug conviction used for enhancement. We affirm

NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with

Fed. R. App. P. 32.1
No. 08-2674 Page 2

the judgment. 

In May 2007 Bluntson and codefendant Antoine Jackson were arrested after

authorities caught them with 152 grams of crack in their car. In his initial post-arrest

interview on May 17, 2007, Bluntson denied any knowledge of the crack, but in a second

interview later that day, he admitted to possessing crack with intent to distribute and gave

a detailed account of the offense. On June 6, 2007, Bluntson and Jackson were each indicted

on one count of possessing 50 grams or more of crack cocaine. The next day, June 7, 2007,

Bluntson signed a “cooperation agreement” with the government, in which the government

reserved for itself the sole discretion to decide whether, and to what extent, to recommend

a reduced sentenced if Bluntson provided substantial assistance. Immediately after

executing the agreement, Bluntson debriefed authorities on illegal drug activity in Chicago. 

But as far as the record shows, government agents did not talk to Bluntson again after that

date.

Almost eight months later, on February 1, 2008, the government filed an

enhancement information, see 21 U.S.C. § 851, giving Bluntson notice that it would seek a

mandatory life sentence on the basis of his two prior felony drug convictions. The parties

then engaged in plea negotiations, and on February 28, 2008, the government amended the

enhancement information to remove reference to one of those convictions in exchange for

Bluntson’s guilty plea. Bluntson understood that the deletion of one of the convictions

meant that he faced a mandatory minimum sentence of 20 years instead of life, see 21 U.S.C.

§ 841(b)(1). In the months following Bluntson’s guilty plea, his defense counsel wrote two

letters to the government offering further cooperation. In one letter defense counsel stated,

“I have explained to Mr. Bluntson that you have offered no assurances of filing a 5K1.1

letter and he understands, but still wishes to cooperate in hopes of receiving such a

departure.” There is no evidence that anyone from the government responded to those

letters.

Sentencing was set for June 2008. The government did not file a substantialassistance motion, which prompted Bluntson to file a sentencing memorandum arguing

that his cooperation should get him a sentence below the mandatory minimum. See 18

U.S.C. § 3553(e); U.S.S.G. § 5K1.1. Bluntson insisted that he had given an “honest and

detailed account” of the events leading up to his arrest, had named various Chicago gang

members involved in illegal drug activity, and had “made numerous attempts to more

actively assist the authorities.” He also asserted that his assistance to the authorities placed

his family and friends at risk. Defense counsel conceded, however, that Bluntson’s efforts

to contact the government after the debriefing on June 7, 2007, had been ignored.

In response, the prosecutor stated that agents had not been “eager to re-interview
No. 08-2674 Page 3

the defendant again” given that he had lied to them “on more than one occasion, combined

with the other circumstances of the case (the defendant’s attempts to obstruct justice, his

criminal history, etc.).” The prosecutor’s only example of Bluntson lying to authorities,

however, was the false story he gave to arresting officers on May 17 shortly after his arrest

and hours before he decided to come clean about the events leading up to his arrest. That

lie, of course, was known to the government before it invited Bluntson’s cooperation by

signing an agreement with him on June 7, 2007, and presumably the government also knew

about his criminal history by that date. Thus the post-arrest false statement and Bluntson’s

criminal history would appear to be pretextual bases for refusing to file a substantialassistance motion. On the other hand, the prosecutor cited two examples of Bluntson’s

attempts to obstruct justice. First, on June 6, 2007—the day before Bluntson signed the

cooperation agreement—an inmate at the jail where Bluntson was detained had told a

guard that Bluntson had offered him $23,000 to kill codefendant Jackson if Jackson would

not take responsibility for all of the crack recovered. This information from the inmate,

Tony Harold, apparently had not reached federal authorities before Bluntson signed the

cooperation agreement and was debriefed by federal agents. Then, on June 14, 2007,

Maurice Allen, another inmate at the jail, told authorities that Bluntson had threatened to

“have someone do something” to Jackson.

The probation officer who prepared the presentence investigation report calculated

a total offense level of 29 and a criminal history category of V, which would have yielded a

guidelines imprisonment range of 140 to 175 months if not for the 20-year mandatory

minimum. At sentencing Bluntson’s only objection was that the government had acted in

bad faith by refusing to move for a sentence below the mandatory minimum. The district

court gave the defense an opportunity to present evidence, but defense counsel stated that

he would stand on his sentencing memorandum. The government, in contrast, called

Maurice Allen. Allen explained that he had overheard Bluntson threaten that “somebody

would do something” to Jackson. He also testified that Bluntson had planned a jail break

and personally offered him $2,500 to obtain a guard’s uniform. Defense counsel still put on

no evidence, and instead simply accused Allen of lying and accused the government of

waiting until after Bluntson had pleaded guilty before “writing off” any possibility that he

could assist investigators. 

The district court found that the government’s primary reasons for refusing to move

for a reduced sentence were Bluntson’s threat against Jackson’s life and his attempt to get a

jailer’s uniform to escape. The court explained that Bluntson’s challenge to Allen’s

credibility was unimportant because “apparently the Government believed him with

respect to those . . . rather serious issues.” The court then concluded that the government

had not acted in bad faith in refusing to file a substantial-assistance motion. And without

that motion, the court continued, a 20-year sentence was mandatory.
No. 08-2674 Page 4

On appeal Bluntson argues that the district court erred in refusing to compel the

government to file a substantial-assistance motion under § 3553(e) and § 5K1.1. He

contends that the government acted in bad faith and that its decision was not rationally

related to any legitimate government end. Bluntson insists that the timing of the

government’s refusal is evidence of bad faith and that the government based its decision

not to file a substantial-assistance motion on improper grounds.

Although the government generally has discretion to withhold a substantialassistance 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 United States v.

Miller, 458 F.3d 603, 605 (7th Cir. 2006). The burden is on the defendant, however, to make

a “substantial threshold showing” that the government improperly withheld a substantialassistance motion before he can receive a remedy. See Wade, 504 U.S. at 186; United States v.

Billings, 546 F.3d 472, 475 (7th Cir. 2008). 

Bluntson did not make a substantial showing that the prosecutor acted in bad faith. 

Indeed, the sequence of events suggests that the government cut off contact with Bluntson

as soon as it learned that he was not acting consistently with his commitment to cooperate. 

The fairest reading of the record—a reading that Bluntson did not try to dispel at

sentencing and does not contradict now—is that he signed an agreement to cooperate at the

same time he was soliciting help in escaping from jail and in coercing Jackson to either take

the wrap for both of them or be killed. It is unclear, based on the record, when exactly the

government learned that inmate Harold had come forward on June 6, 2007 to report

Bluntson’s promise of $23,000 to kill Jackson. But Bluntson has never argued that the

government somehow learned of this information before entering into the cooperation

agreement the following day. And since inmate Allen did not approach authorities until

June 14, 2007, the government certainly did not learn that Bluntson had again threatened

Jackson’s life and was working on an escape plan until at least a week after the June 7

debriefing. There is nothing in the record to suggest that the government had any further

contact with Bluntson after learning about his continuing criminal conduct, and thus there

is no support for Bluntson’s suggestion that the government deceived him by continuing to

solicit his help all the while knowing that it would not move for a reduced sentence.

It is also unclear, based on the record, when exactly Bluntson’s threats and escape

attempt occurred. If he committed these acts before executing the cooperation agreement,

then, by not disclosing his actions during the debriefing, he violated his written promise to

“provide complete and truthful information” regarding his criminal conduct and not to
No. 08-2674 Page 5

“conceal or minimize [his] actions or involvement in any offense.” On the other hand, if

Bluntson threatened Jackson’s life and attempted to escape from jail after executing the

cooperation agreement, then he violated his promise “not to engage in any criminal activity

of any kind,” which voided the cooperation agreement and released the government from

any obligation to reward whatever assistance he might already have provided.

There is the wrinkle that the prosecutor carelessly responded to Bluntson’s

sentencing memorandum by citing facts that should not reasonably have led to

withholding a substantial-assistance motion, since those same facts did not dissuade the

government from agreeing to accept Bluntson’s cooperation in the first place. As noted

previously, Bluntson’s post-arrest false statement was unquestionably known to the

government when the prosecutor signed the cooperation agreement, and it would be hard

to imagine that the prosecutor did not know the extent of Bluntson’s criminal history a

month after his arrest. But at sentencing the district court was careful to base its finding of

good faith on Bluntson’s threats to Jackson and his attempt to escape from jail. That

conduct surely gave the government a legitimate basis for withholding a substantialassistance motion. See United States v. Perez, 526 F.3d 1135, 1139 (8th Cir. 2008); United States

v. Butler, 272 F.3d 683, 687 (4th Cir. 2001); United States v. Hartwell, 302 F. Supp. 2d 609, 620

(E.D. Va. 2004). 

Accordingly, we AFFIRM the judgment of the district court.