F I L E D

United States Court of Appeals

Tenth Circuit

MAR 9 2001

PATRICK FISHER

Clerk

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellant and Cross-Appellee,

v.

DONALD DALE DUNCAN, JR.,

Defendant-Appellee and Cross-Appellant.

Nos. 00-2013 &

 00-2014

Appeal from the United States District Court

for the District of New Mexico

(D.C. No. CR-96-550-MV)

J. Miles Hanisee (Norman C. Bay, United States Attorney with him on the briefs),

Assistant United States Attorney, Albuquerque, New Mexico, for PlaintiffAppellant and Cross-Appellee.

Douglas E. Couleur, Santa Fe, New Mexico, for Defendant-Appellee and CrossAppellant.

Before BRORBY, EBEL and KELLY, Circuit Judges.

BRORBY, Circuit Judge.

Section 3553(e) of Title 18 of the United States Code and § 5K1.1 of the

United States Sentencing Guidelines (“Guidelines”) empower district courts,
1

 Mr. Duncan was sentenced on November 5, 1999, which means the 1998

edition of the Guidelines Manual is applicable to this case. See U.S.S.G.

§ 1B1.11(a) (2000) (“The court shall use the Guidelines Manual in effect on the

date that the defendant is sentenced.”).

2

 Mr. Duncan brought a “Motion for Downward Departure/Request for

Evidentiary Hearing” pursuant to 18 U.S.C. § 3553(e) and U.S.S.G. §§ 5K1.1,

5K2.0.

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upon a government motion , to impose a sentence below the statutory mandatory

minimum and Guidelines minimum sentences, respectively, 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); United States

Sentencing Guidelines (“U.S.S.G.”), § 5K1.1, p.s. (Nov. 1998). 1 In this case, the

government refused to file a substantial assistance motion. However, on

defendant Donald Dale Duncan’s motion ,

2

 to which the government objected, the

district court departed downward from the statutory mandatory minimum

sentences applicable to the drug and firearm counts to which Mr. Duncan pled

guilty. The grounds for its decision were § 5K1.1 and the egregious-case

exception identified in United States v. Kuntz , 908 F.2d 655, 657 (10th Cir.

1990), overruled in part on other grounds by Melendez v. United States , 518 U.S.

120, 123-26 (1996). Further, the district court held it was without authority to

grant a substantial assistance departure under U.S.S.G. § 5K2.0. See U.S.S.G. §

5K2.0, p.s. (Nov. 1998).
3

 In light of our resolution of this question, we need not address the

government’s alternative issue on appeal: whether the district court abused its

discretion in granting the substantial assistance departure under the egregious

case exception.

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On appeal, the government raises the issue whether the district court was

without authority to grant a substantial assistance departure in the absence of a

government motion. 3 Specifically, it claims the Supreme Court’s decision in

Wade v. United States , 504 U.S. 181 (1992) eliminated the egregious case

exception or otherwise limited the circumstances under which a district court may

review a prosecutor’s refusal to file a substantial assistance motion and grant the

defendant a remedy. Anticipating our potential agreement with the government’s

argument on appeal, Mr. Duncan cross-appeals the district court’s conclusion it

was without authority to grant a substantial assistance departure under § 5K2.0.

We have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C.

§ 3742(a)(1), (b)(1). We reverse and remand for re-sentencing on the

government’s appeal, and affirm on Mr. Duncan’s appeal.
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I. Background

Mr. Duncan’s substantial assistance motion focused on his cooperation

with state authorities in an unrelated state murder case, and explicitly invoked the

egregious case exception. The district court granted Mr. Duncan’s request for an

evidentiary hearing, at which three defense witnesses testified: (1) Warren

Harris, a New Mexico prosecutor; (2) Joanna Aguilar, a former New Mexico

prosecutor; and (3) Mr. Duncan. The government did not present any witnesses

or other evidence at the hearing, but continued its opposition to the motion. The

following chronology of events is taken from the undisputed testimony of the

defense witnesses and the record.

In 1993, Lisa Duncan, Mr. Duncan’s ex-wife, was murdered in New

Mexico. The investigating authorities eliminated Mr. Duncan as a suspect after

he passed a polygraph test. Mr. Duncan then began actively assisting the

investigation, which eventually led to the prosecution of Rudy Gonzales, Sr., a

former deputy sheriff in Sandoval County, New Mexico, and his son, Rudy

Gonzales, Jr., for the murder.

In 1996, Mr. Duncan was charged in this case by indictment with: one

count of possession with intent to distribute at least five grams of cocaine and
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aiding and abetting, 21 U.S.C. § 841(a)(1), (b)(1)(b) and 18 U.S.C. § 2; one

count of possession with intent to distribute at least 100 grams of

methamphetamine and aiding and abetting, 21 U.S.C. § 841(a)(1), (b)(1)(A) and

18 U.S.C. § 2; and two counts of carrying and use of a firearm during and in

relation to a drug trafficking crime and aiding and abetting, 21 U.S.C. §

924(c)(1) and 18 U.S.C. § 2. Pursuant to a 1998 plea agreement, Mr. Duncan

pled guilty to the methamphetamine and one firearm count in return for the

government’s dismissal of the remaining two counts and its agreement not to

bring future charges against Mr. Duncan regarding activity currently known to

federal law enforcement officials. The plea agreement did not contain a

cooperation agreement between Mr. Duncan and the government, nor any

commitment by the government to file a substantial assistance motion if it

determined Mr. Duncan had provided substantial assistance in the investigation

or prosecution of another person who has committed an offense.

During the period between his federal arrest and guilty plea, Mr. Duncan

continued to assist state prosecutors by participating in interviews and testifying

in the Rudy Gonzales, Jr. murder trial, which resulted in a first degree murder

conviction. Around the time he entered the plea agreement in this case, Mr.

Duncan testified in the Rudy Gonzales, Sr. murder trial, which ended in a hung
4

 It appears Mr. Harris reversed the suffixes here, because he and Ms.

Aguilar clearly testified the conviction was obtained against Mr. Gonzales, Jr.,

while the prosecution of Mr. Gonzales, Sr. ended in two hung juries.

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jury. In 1999, Mr. Duncan testified for the prosecution in a second trial against

Rudy Gonzales, Sr., which again ended in a hung jury.

According to Mr. Harris and Ms. Aguilar, Mr. Duncan was the only

prosecution witness who could explain the relationships of the parties in the

murder cases and provide the motive for Messrs. Gonzales to kill Lisa Duncan. 

Both Mr. Harris and Ms. Aguilar testified Mr. Duncan was very cooperative and

they found him to be truthful. Mr. Harris stated “this was a very difficult case,

and without [Mr. Duncan’s] help I know we probably wouldn’t have convicted

Sr. and we wouldn’t have gotten as far as we did against Jr.” 4 On the basis of his

twenty-nine years as a prosecutor, Mr. Harris characterized Mr. Duncan’s

cooperation and the usefulness of his testimony as being “in the top 10 percent”

of all cooperating witnesses. Finally, Mr. Harris noted his testimony on behalf of

Mr. Duncan was only the second time in his career he had spoken on behalf of a

defendant at sentencing.

During oral argument on the motion, defense counsel argued the district
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court could grant Mr. Duncan a substantial assistance departure under either the

egregious case exception identified in Kuntz or under § 5K2.0. In opposition, the

government presented four arguments: (1) the district court was without

authority to grant Mr. Duncan a substantial assistance departure absent a

government motion; (2) the government has the authority to file a § 3553(e)

and/or § 5K1.1 motion when a defendant has substantially assisted, but no duty to

do so; (3) the government’s conduct in refusing to file a substantial assistance

motion in this case was not egregious, because the plea agreement substantially

reduced Mr. Duncan’s exposure to further statutory mandatory minimum

sentences; and (4) § 5K2.0 was inapplicable because it does not provide the

district court with authority to depart below statutory mandatory minimum

sentences.

The district court stated “the issue here is whether the defendant’s

assistance to state authorities ... is egregious enough ... as to cry out for

meaningful relief” under the egregious case exception, and held it was. The

court concluded Mr. Duncan’s assistance to state authorities was “extraordinary,”

and “that the evidence and information that he provided was of substantial

assistance to [Mr. Harris and Ms. Aguilar] in their best estimation.” The

government objected and asked the district court to clarify whether it was holding
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the government’s refusal to file a substantial assistance motion was egregious

conduct. The district court reiterated that its holding focused on the nature and

extent of Mr. Duncan’s assistance to state authorities, and was not an evaluation

of the government’s decision not to file a substantial assistance motion:

It’s not – I’m not viewing it – it’s not egregious conduct. It’s an

egregious case in which – egregiousness as I review the Tenth

Circuit case law, it is a case in which the defendant’s level of

cooperation is so great that, without a filing of a motion for

substantial assistance, it cries out for relief. I mean, that’s the

language of the cases. It’s not labeling the government’s conduct as

egregious. It is one of the three factors in which the courts can look

at whether a substantial assistance motion should have been filed. 

It’s just one of the three factors, and it’s called the egregious case

factor. It’s not the egregious government conduct.

....

... I have seen no other case in which egregious is referring to

the government’s conduct. We don’t even look at the government’s

conduct because this isn’t an unconstitutional motive case. We are

only looking at the government’s conduct here because the language

of the cases in the Tenth Circuit say that you can look at an

egregious case, an egregious case being a case in which a defendant

cooperates so much and a motion for substantial assistance is not

provided ....

By no means is this a situation in which the government’s

motives are being impugned in any way. The case law I think is

clear, as I read it, that I’m supposed to look at what did this

defendant do. I mean, how helpful was it, how much effort was

involved in it, and is this – in looking at it, is this a case that cries

out for meaningful relief. That’s all.

(Emphasis added.) Indeed, the only finding the district court made as to the

government’s conduct was the government had not “offered any kind of evidence
-9-

indicating that they in fact considered defendant’s assistance in making their plea

offer.” (Emphasis added.)

Accordingly, based on § 5K1.1 and the egregious case exception identified

in Kuntz, the district court departed thirty-six months below the statutory

mandatory minimum sentences applicable to the methamphetamine and firearm

counts. In addition, the district court concluded it did not have authority under

§ 5K2.0 to grant a substantial assistance departure, because the concept of

substantial assistance was taken into consideration by the Guidelines under §

5K1.1.

II. Standard of Review

We review the district court’s decision to depart downward for an abuse of

discretion. Koon v. United States , 518 U.S. 81, 91, 96-100 (1996) (interpreting

18 U.S.C. § 3742(e)). This means the district court’s factual findings are

reviewed for clear error, United States v. Maldonado-Acosta , 210 F.3d 1182,

1183 (10th Cir. 2000), while its legal conclusions underlying the decision are

reviewed de novo, United States v. Fagan , 162 F.3d 1280, 1283 (10th Cir. 1998). 

“A district court by definition abuses its discretion when it makes an error of

law.” Koon , 518 U.S. at 100.
5

 We note the district court should have based its sentence reduction

holding on § 3553(e) as opposed to § 5K1.1, because the departure was below the

statutory mandatory minimum sentence. 18 U.S.C. § 3553(e); see Melendez, 518

U.S. at 123-26 (holding a government motion under § 5K1.1 provides a district

court authority to depart below a Guidelines sentence but not a statutory

mandatory minimum sentence). However, this does not affect the government’s

primary issue on appeal or our resolution of this case, because Wade addresses the

circumstances under which a district court may review the government’s refusal

to file a substantial assistance motion in the context of both § 3553(e) and

§ 5K1.1. See Wade, 504 U.S. at 184 (“[T]his case implicates both 18 U.S.C.

§ 3553(e) and U.S.S.G. § 5K1.1.”). Accordingly, our use of the phrase

“substantial assistance motion” refers to those brought under either § 3553(e) or §

5K1.1.

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III. Discussion

A. Authority of a District Court to Review a Prosecutor’s Refusal to File a

Substantial Assistance Motion

As a general rule, a district court’s authority to consider a defendant’s

substantial assistance claim at sentencing is conditioned upon a prior motion of

the government. 18 U.S.C. § 3553(e); U.S.S.G. § 5K1.1; see Wade , 504 U.S. at

184-85; Kuntz, 908 F.2d at 657. The government’s refusal to file a motion under

§ 3553(e) or § 5K1.1 is a jurisdictional bar to the imposition of a sentence below

the statutory mandatory minimum or Guidelines sentences, respectively. See

United States v. Long , 936 F.2d 482, 483 (10th Cir.), cert. denied , 502 U.S. 1015

(1991); United States v. Sorensen , 915 F.2d 599, 601-03 (10th Cir. 1990), cert.

denied , 498 U.S. 1103 (1991). 5 In this case, we are asked to decide the limits of

the exceptions to this general rule, which is a pure question of law, and our
6

 One well-established exception not at issue in this case allows a district

court to review the government’s discretionary refusal to file a substantial

assistance motion if the defendant claims the refusal violates an agreement with

the government. See, e.g., United States v. Cerrato-Reyes, 176 F.3d 1253, 1264

(10th Cir. 1999). Accordingly, this opinion does not address or impact any of the

standards applicable to this exception. See id.; see also Wade, 504 U.S. at 185

(stating the defendant did not claim the government had agreed to file a

substantial assistance motion); United States v. Massey, 997 F.2d 823, 824 (10th

Cir. 1993) (holding Wade does not foreclose the defendant’s allegation the

government breached the plea agreement by failing to file a § 5K1.1 motion, and

identifying the applicable standard of review and governing law).

7

 The government states this court has never found an egregious case, Mr.

Duncan does not identify one, and our independent research reveals no such case. 

This appears to confirm our stated expectation in Kuntz that such cases would be

“rare.” Kuntz, 908 F.2d at 657. It also means this is the first time we are

squarely confronted with the issue whether this exception survived Wade.

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review is de novo. See United States v. Doe , 934 F.2d 353, 356 (D.C. Cir.), cert.

denied , 502 U.S. 896 (1991). 6

The issue in this case is whether the egregious case exception identified in

Kuntz is still good law. The government claims the exception was eliminated by

Wade , while Mr. Duncan claims “ Wade is broader than the Government

acknowledges” and does not preclude the existence and application of the

exception. Mr. Duncan points to this court’s repeated citation to the exception in

cases after Wade as evidence of its survival. 7

 We agree with the government.
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In Kuntz, we held due process does not require judicial review of a

prosecutor’s decision not to file a substantial assistance motion, but identified the

egregious case exception to the motion requirement:

We do not preclude the possibility that “[p]erhaps in an egregious

case – a case where the prosecution stubbornly refuses to file a

motion despite overwhelming evidence that the accused’s assistance

has been so substantial as to cry out for meaningful relief – the court

would be justified in taking some corrective action.”

Kuntz, 908 F.2d at 657 (quoting United States v. La Guardia , 902 F.2d 1010,

1017 (1st Cir. 1990)). As Mr. Duncan correctly notes, we have repeated this rule

in numerous opinions issued after Wade . See, e.g. , Maldonado-Acosta , 210 F.3d

at 1183-84 (“A district court can review the government’s discretionary refusal to

file a substantial assistance motion ... in an egregious case where the prosecution

stubbornly refuses to file a motion despite overwhelming evidence that the

accused’s assistance has been so substantial as to cry out for meaningful relief.”). 

Nonetheless, we must abide by a superseding contrary decision of the Supreme

Court, see In re Smith , 10 F.3d 723, 724 (10th Cir. 1993), cert. denied , 513 U.S.

807 (1994), so we turn to an evaluation of Wade .

In Wade , issued roughly two years after Kuntz, the Supreme Court faced

the question whether and to what extent district courts may review the

government’s refusal to file a substantial assistance motion. Wade , 504 U.S. at
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183. The Court concluded “a prosecutor’s discretion when exercising that power

[to file a § 3553(e) and/or § 5K1.1 motion] is subject to constitutional limitations

that district courts can enforce.” Id. at 185. In this regard, the Court directed

district courts to focus on the government’s actions – not the nature and extent of

the defendant’s assistance to law enforcement authorities – to determine whether

relief should be granted for the defendant in light of the prosecution’s refusal to

file a substantial assistance motion. Id. at 183, 185-87.

First, the Court instructed the district courts to review the prosecutor’s

decision whether to file a substantial assistance motion utilizing the same

constitutional standards to which all other decisions by the prosecution are

subject. Id. at 185-86 (citing Wayte v. United States , 470 U.S. 598, 608-09

(1985)); see Wayte , 470 U.S. at 607 (reiterating the “broad discretion” the

government retains as to whom to prosecute and what charge to file or bring

before a grand jury). Accordingly, the Court held “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 the refusal [(1)] was based on an

unconstitutional motive ,” such as the defendant’s race or religion, or (2) “was not

rationally related to any legitimate Government end.” Wade , 504 U.S. at 185-86.
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Second, the Court reiterated three times the rule that substantial assistance,

standing alone, does not entitle a defendant to a substantial assistance motion:

[I]n both § 3553(e) and § 5K1.1 the condition limiting the court’s

authority [– the Government motion requirement –] gives the

Government a power, not a duty, to file a motion when a defendant

has substantially assisted.

....

It follows that a claim that a defendant merely provided

substantial assistance will not entitle a defendant to a remedy or even

to discovery or an evidentiary hearing.... [A] defendant has no right

to discovery or an evidentiary hearing unless he makes a “substantial

threshold showing.”

....

... [A]lthough a showing of assistance is a necessary condition

for relief, it is not a sufficient one.

Id. at 185-87 (quoting petitioner’s brief).

Mr. Duncan argues Wade goes no further than granting district courts the

authority to review the prosecutor’s refusal to file a substantial assistance motion

for constitutional violations. We disagree. As noted above, the Court framed the

boundary of its holding in Wade by emphasizing three times that a substantial

assistance claim, standing alone, neither meets the unconstitutional motive or

rational relationship tests nor entitles the defendant to an evidentiary hearing on

the issue. Wade , 504 U.S. at 185-87. We believe this parameter is essential to

the Court’s holding, or, at the very least, constitutes a clear directive from the
8

 Indeed, the Court utilized this parameter to hold Mr. Wade was not

entitled to a remand to allow him to develop a constitutional violation claim:

[Mr. Wade’s] claim as presented to the District Court failed to rise to

the level warranting judicial enquiry. The District Court expressly

invited Wade’s lawyer to state for the record what evidence he would

introduce to support his position if the court were to conduct a

hearing on the issue. In response, his counsel merely explained the

extent of Wade’s assistance to the Government. This, of course, was

not enough, for although a showing of assistance is a necessary

condition for relief, it is not a sufficient one....

It is clear, then, that, on the present record, Wade is entitled to

no relief ....

Wade, 504 U.S. at 187.

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Court how the law on this issue should be applied. 8 See Gaylor v. United States ,

74 F.3d 214, 217 (10th Cir.) (“[T]his court considers itself bound by Supreme

Court dicta almost as firmly as by the Court’s outright holdings, particularly

when the dicta is recent and not enfeebled by later statements.”), cert. denied ,

517 U.S. 1211 (1996). Accordingly, we conclude Wade eliminated any exception

to the government motion requirement that focuses on the level of the

defendant’s assistance to law enforcement authorities to establish his/her

entitlement to sentencing relief. See United States v. Courtois , 131 F.3d 937,

938 (10th Cir. 1997) (“Even if a defendant undeniably renders substantial

assistance, the government retains discretion to decide whether to request a §
9

 See also United States v. LeRose , 219 F.3d 335, 342-43 (4th Cir. 2000)

(holding “[e]xplanations of the extent of a defendant’s assistance do not entitle a

defendant to a hearing” about or relief from the government’s refusal to file a

substantial assistance motion) (citing Wade , 504 U.S. at 187); United States v.

Cruz-Guerrero , 194 F.3d 1029, 1031 (9th Cir. 1999) (“We have routinely

interpreted [§ 5K1.1] to mean that, in the absence of arbitrariness or

unconstitutional motivation on the part of the government, a district court may

not depart downward from the guidelines on the basis of defendant’s substantial

assistance to the government unless the government has moved for such a

departure.”) (citing Wade , 504 U.S. at 185-86 and United States v. Burrows , 36

F.3d 875, 884 (9th Cir. 1994)); In re Sealed Case No. 97-3112 , 181 F.3d 128,

142 (D.C. Cir.) (en banc), cert. denied , 528 U.S. 989 (1999) (“We conclude that

in the absence of a government motion, a district court lacks authority under the

Guidelines to depart from the applicable sentencing range on the basis of a

defendant’s substantial assistance.”); United States v. Romsey , 975 F.2d 556, 558

(8th Cir. 1992) (“‘[A] claim that a defendant merely provided substantial

assistance will not entitle a defendant to a remedy or even to discovery or an

evidentiary hearing.’”) (quoting Wade , 504 U.S. at 186); United States v.

Higgins , 967 F.2d 841, 845 (3rd Cir. 1992) (“Even assuming that [the

defendant’s] assistance was unquestionably substantial, ‘a showing of assistance

is a necessary condition for relief, ... not a sufficient one.’”) (quoting Wade , 504

U.S. at 187).

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5K1.1 downward departure.”) (citing Wade , 504 U.S. at 185). 9

In light of the above discussion, we hold Wade eliminated the egregious

case exception identified in Kuntz. See In re Sealed Case No. 97-3112 , 181 F.3d

at 132 n.5 (“Although [the First, Fifth, and Eighth Circuits] initially speculated in

dicta that there might be an ‘egregious’ case or ‘extraordinary’ assistance

exception to the motion requirement, those circuits now appear to have narrowed

that exception to cases involving unconstitutional motives or irrational or bad
10 To the extent this panel opinion can be interpreted to overrule prior

decisions, it has been circulated among all judges of this court in regular active

service. All judges have expressed agreement with the conclusion that Wade

eliminated the egregious case exception identified in Kuntz.

11 This holding brings our case law in line with the First, Second, Third,

Fourth, Seventh, Ninth, and D.C. Circuits, all of which discuss, cite, and/or quote

Wade for their statement of the law. See United States v. Sandoval , 204 F.3d

283, 286 (1st Cir. 2000) (“[W]hen a defendant has entered into a plea agreement

that contains no express provision for consideration of a section 5K1.1 departure,

the government’s discretionary decision not to file a section 5K1.1 motion is, as

in Wade , reviewable only for an unconstitutional motive or the lack of a rational

relationship to any legitimate governmental objective.”); United States v.

Brechner , 99 F.3d 96, 99 (2d Cir. 1996) (“As the Supreme Court made clear in

Wade v. United States , 504 U.S. 181, 185-86 ... (1992), even defendants who

have no cooperation agreements are entitled to assurance that the government’s

motion is not withheld for some unconstitutional reason.”); United States v.

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faith refusals to file by the government. We reach a similar result [in this

opinion].”) (citing cases); Romsey , 975 F.2d at 557 (holding Wade “narrowly

defined” the scope of the “egregious case exception” to a determination by the

district court as to whether the prosecutor’s refusal to file a substantial assistance

motion was based on an unconstitutional motive, or was not rationally related to

any legitimate government end (quotation marks omitted)). 10 Thus, the correct

statement of the law is as follows: a district court’s authority to review the

government’s refusal to file a substantial assistance motion is limited to

determining whether the decision was: (1) animated by an unconstitutional

motive, or (2) not rationally related to a legitimate government end. See

Courtois , 131 F.3d at 938 (same) (citing Wade , 504 U.S. at 185-86). 11
Abuhouran , 161 F.3d 206, 211-12 (3d Cir. 1998) (holding “‘federal district

courts have authority to review a prosecutor’s refusal to file a substantialassistance motion and to grant a remedy if they find that the refusal was based on

an unconstitutional motive,’” which occurs “when the government’s decision is

based on the defendant’s race, religion or gender” or “when its ‘refusal to move

was not rationally related to any legitimate Government end’”) (quoting Wade ,

504 U.S. at 185-86 (citations omitted)), cert. denied , 526 U.S. 1077 (1999);

LeRose , 219 F.3d at 342 (“[C]ourts may review a prosecutor’s refusal to file a

motion for substantial assistance and grant relief if the refusal is based on an

unconstitutional motive such as race or religion, or is not rationally related to a

permissible government objective.”); United States v. Egan , 966 F.2d 328, 332

(7th Cir. 1992) (same), cert. denied , 506 U.S. 1069 (1993); Cruz-Guerrero , 194

F.3d at 1031 (same); In re Sealed Case No. 97-3112 , 181 F.3d at 142 (same).

The Fifth, Sixth, and Eleventh Circuits also rely on Wade for their

statement of the law, but appear to limit the district court’s authority to review the

government’s refusal to file a substantial assistance motion only for an

unconstitutional motive, such as the defendant’s race or religion. See United

States v. Solis, 169 F.3d 224, 226 (5th Cir.), cert. denied, 528 U.S. 843 (1999)

(“[A] district court may review the Government’s refusal to move for a downward

departure if the refusal is based on an unconstitutional motive.”); United States v.

Bagnoli, 7 F.3d 90, 92 (6th Cir. 1993) (“[In Wade,] the Supreme Court ruled that

a district court has the authority to review the Government’s failure to move for a

downward departure only if the court finds that the refusal was based on an

unconstitutional motive.”), cert. denied, 513 U.S. 827 (1994); United States v.

Nealy, 232 F.3d 825, 831 (11th Cir. 2000) (“In Wade, the Supreme Court limited

the free exercise of [the government’s power to file a substantial assistance

motion] only to the extent that the government cannot exercise that power, or fail

to exercise that power, for an unconstitutional motive.”).

The Eighth Circuit originally utilized Wade to reach a position identical to

our holding today. See Romsey, 975 F.2d at 557 (holding district courts may

review a prosecutor’s refusal to file a motion for substantial assistance and grant

relief if the refusal is based on an unconstitutional motive such as race or

religion, or is not rationally related to any legitimate government end). However,

more recently, it appears to have translated the rationally related to a legitimate

government end test into a “refusal was irrational” test, which prohibits the

government from basing its decision whether to file a substantial assistance

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motion “on factors other than the substantial assistance provided by the

defendant.” United States v. Anzalone, 148 F.3d 940, 941 (8th Cir.), vacated &

reh’g en banc granted, 148 F.3d 940 (8th Cir.), reinstated & reh’g en banc

denied, 161 F.3d 1125 (8th Cir. 1998) (quotation marks omitted). If this is an

accurate reading of Anzalone, we agree with the Eleventh Circuit’s conclusion

that the Eighth Circuit’s position is “not supported by Wade” and “we expressly

disavow that approach.” Nealy, 232 F.3d at 831.

Finally, to the extent the Fifth, Sixth, and Eighth Circuits require the

exclusive application of the unconstitutional motive test when a defendant claims

the refusal violates an agreement with the government, see Solis, 169 F.3d at 225-

27; Bagnoli, 7 F.3d at 91-92; Romsey, 975 F.2d at 557-58, these cases are

inconsistent with our case law. See supra note 6 and cases cited therein.

12 Mr. Duncan does not claim the government’s refusal was based on an

unconstitutional motive.

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In this case, the district court focused exclusively on the level of Mr.

Duncan’s assistance to the New Mexico authorities to establish his entitlement to

sentencing relief. See supra Part I. This was an error of law constituting an

abuse of discretion, and we reverse and remand for resentencing.

B. Rationally Related to a Legitimate Government End Exception

Mr. Duncan attempts to fit the egregious case exception within Wade by

arguing the government’s refusal to file a substantial assistance motion was not

rationally related to any legitimate government end. 12 Specifically, he focuses on

the district court’s finding the government had not “offered any kind of evidence
13 Mr. Duncan testified he and his first attorney, who Mr. Duncan claims

was replaced in April 1998, discussed negotiating with the government for

consideration of Mr. Duncan’s assistance to state authorities. At the sentencing

hearing, Mr. Duncan’s current counsel offered, and the court admitted into

evidence, a letter to Mr. Duncan from his first attorney dated January 28, 1998. 

This letter states: “I do advise you nothing I have heard will change the minimum

sentences upon your conviction in any way, nor will the federal authorities give

you any breaks because of your state involvement.... At present the [Assistant

United States Attorney] has agreed to a plea bargain of 15 years, or 1⁄2 the

sentence you would get if convicted on all counts.... The government will simply

not compromise further.” (Emphasis added.) Mr. Duncan testified this prompted

him to call Ms. Aguilar and request she contact the government to discuss his

assistance to her in the Mr. Gonzales, Jr. murder trial.

As a result of this conversation, Ms. Aguilar testified she spoke with an

Assistant United States Attorney assigned to Mr. Duncan’s case no later than

February 11, 1998 about Mr. Duncan’s assistance. She requested that the

Assistant United States Attorney, whose name she did not recall, take Mr.

Duncan’s assistance into consideration regarding the federal charges pending

against him.

In this case, Mr. Duncan entered the plea agreement with the government

on February 13, 1998. Accordingly, the government was aware of Mr. Duncan’s

assistance to state authorities before the plea agreement was finalized as a result

of plea negotiations with Mr. Duncan’s first attorney and Ms. Aguilar’s telephone

call.

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indicating that they in fact considered defendant’s assistance in making their plea

offer.” (Emphasis added.)We do not agree.

The testimony and evidence adduced at the hearing reflects the government

was aware of Mr. Duncan’s assistance to state authorities before the plea

agreement was entered on February 13, 1998. 13 Therefore, the question is
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whether the government’s refusal to amend its plea offer was rationally related to

a legitimate government end. We hold it was.

As the Supreme Court noted in Wade , the government’s failure to include a

cooperation provision in the plea agreement or file a substantial assistance

motion “may have been based not on a failure to acknowledge or appreciate [the

defendant’s] help, but simply on its rational assessment of the cost and benefit

that would flow from moving.” Wade , 504 U.S. at 187. In this case, the

government’s refusal to file the motion was rationally related to the following

legitimate law enforcement ends: (1) according finality to the result of plea

negotiations and agreements which do not include a cooperation provision and

significantly reduce the defendant’s sentencing exposure to statutory mandatory

minimums; and (2) reinforcing the principle within the criminal community that

the government will reward with a substantial assistance motion only cooperation

following the defendant’s federal arrest and predicated on the cessation of all

further criminal activity by the defendant. Otherwise, as the government notes, if

every defendant could receive sentencing relief for actions taken prior to criminal

activity, statutory mandatory minimum sentences and the Guidelines would be

significantly undermined.
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C. U.S.S.G. § 5K2.0

We turn to the issue whether a district court has the authority to grant a

substantial assistance departure under § 5K2.0. The district court concluded it

did not have such authority, because the concept of substantial assistance was

taken into consideration by the Guidelines under § 5K1.1. The plain language of

§ 5K2.0 reveals it applies only to Guidelines sentences and cannot be utilized to

depart from statutory mandatory minimum sentences. See U.S.S.G. § 5K2.0

(“Under 18 U.S.C. § 3553(b), the sentencing court may impose a sentence outside

the range established by the applicable guidelines , if the court finds ‘that there

exists an aggravating or mitigating circumstance of a kind, or to a degree, not

adequately taken into consideration by the Sentencing Commission in formulating

the guidelines that should result in a sentence different from that described.’”)

(emphasis added); see also United States v. Santiago , 201 F.3d 185, 188 (3d Cir.

1999) (“[A] District Court lacks the authority to lower a mandatory minimum

sentence via section 5K2.0 of the Guidelines.” (citing cases)); United States v.

Mosley , 965 F.2d 906, 916 (10th Cir. 1992) (affirming the district court’s

conclusion it lacked authority to depart below the statutory minimum sentence

pursuant to § 5K2.0). In this case, the district court attempted to reduce Mr.

Duncan’s sentence below the statutory mandatory minimum, so § 5K2.0 is

inapplicable. Accordingly, we affirm. See United States v. Sandoval , 19 F.3d
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537, 542 n.6 (10th Cir. 1994) (“We are free to affirm a district court decision on

any grounds for which there is a record sufficient to permit conclusions of law,

even grounds not relied upon by the district court.” (quotation marks omitted)).

IV. Conclusion

We conclude with two final comments. First, we understand the district

court’s frustration with the government’s last minute request during the second

day of the sentencing hearing to brief in detail the egregious case exception, in

light of the one-sentence response it provided in its opposition to Mr. Duncan’s

motion and the fact the motion had been pending for almost one year. Further,

the government’s failure to raise the issue to the district court whether the

egregious case exception was eliminated by Wade prevented the district court

from addressing it in the first instance and denied us the benefit of the district

court’s opinion on the issue. See Anixter v. Home-Stake Prod. Co. , 77 F.3d

1215, 1228 (10th Cir. 1996) (“Allowing appellants to present issues not raised

below would also undermine the need for finality in litigation and conservation

of judicial resources.”) (quotation marks omitted). As a general rule, we do not

consider an issue not presented, considered, and decided by the district court. 

See id. However, we exercise our discretion to hear and resolve this issue,

because it is purely a matter of law and its proper resolution is certain. See Ross
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v. United States Marshal , 168 F.3d 1190, 1195 n.5 (10th Cir. 1999). Mr.

Duncan’s sentencing has been pending for almost two years, the case itself is

over four years old, and it is time for it to end.

Second, we recognize the value of Mr. Duncan’s assistance to the New

Mexico authorities. Substantial as it may have been, however, it does not change

the fact that Congress determined a defendant will have the opportunity to

receive sentencing relief for such assistance when the government files a

substantial assistance motion. In the absence of a claim there was a breach of a

plea agreement, the Supreme Court has limited a court’s authority to review the

government’s refusal to file such a motion for only constitutional violations

evidenced by an unconstitutional motive or the lack of a rational relationship to a

legitimate government end. In this case, the government did not commit a

constitutional violation by refusing to file the motion for suspect reasons. 

Accordingly, the district court did not have the authority to impose a sentence

below the statutory mandatory minimums applicable to the drug and firearm

counts to which Mr. Duncan pled guilty.

We REVERSE and REMAND for resentencing on the government’s

appeal, and AFFIRM on Mr. Duncan’s appeal.
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