U.S. v. Motley

Decision Date08 December 2009
Docket NumberNo. 08-3079.,08-3079.
Citation587 F.3d 1153
PartiesUNITED STATES of America, Appellee v. Kevin A. MOTLEY, Also Known as Jerome Motley, Appellant.
CourtU.S. Court of Appeals — District of Columbia Circuit

Appeal from the United States District Court for the District of Columbia (No. 1:06-cr-00144-ESH-1).

Steven R. Kiersh, appointed by the court, was on the briefs for appellant.

Roy W. McLeese III, Chrisellen R. Kolb, and Katherine M. Kelly, Assistant U.S. Attorneys, were on the brief for appellee.

Before: ROGERS, GARLAND, and GRIFFITH, Circuit Judges.

Opinion for the Court filed by Circuit Judge GARLAND.

GARLAND, Circuit Judge:

Pursuant to a plea agreement, Kevin Motley admitted to possessing with intent to distribute 50 grams or more of cocaine base. Among other things, the agreement required Motley to cooperate with law enforcement authorities. After concluding that Motley had provided substantial assistance, the government filed a motion asking the district court to sentence him below the applicable United States Sentencing Guidelines range, as provided by Guideline § 5K1.1. The government refused, however, to file a motion authorizing the court to sentence Motley below the statutory mandatory minimum sentence, as provided by 18 U.S.C. § 3553(e). Motley contends that the government's refusal denied him due process because it was irrational. We disagree and affirm the judgment of the district court.


On May 26, 2006, a grand jury in the District of Columbia charged Motley with four counts of distributing 50 grams or more of cocaine base, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A)(iii), and one count of possessing a firearm and ammunition after having been convicted of a felony, in violation of 18 U.S.C. § 922(g)(1). One month later, Motley entered into a plea agreement with the government, agreeing to plead guilty to an information charging him with a single count of possessing with intent to distribute 50 grams or more of cocaine base, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A)(iii). Plea Agreement ¶ 1 (June 27, 2006). He further agreed to cooperate "fully, truthfully, completely and forthrightly" with law enforcement authorities. Id. ¶ 6(a).

In exchange for Motley's plea, the government agreed to dismiss the pending May 26 indictment. The plea agreement also discussed what steps the government might take with respect to Motley's cooperation under two provisions: (1) U.S.S.G. § 5K1.1, pursuant to which a court may— "[u]pon motion of the government stating that the defendant has provided substantial assistance"—sentence a defendant below the Sentencing Guidelines range; and (2) 18 U.S.C. § 3553(e), pursuant to which a court may—again, "[u]pon motion of the Government"—sentence the defendant below the mandatory minimum statutory sentence "to reflect [the] defendant's substantial assistance." The plea agreement stated that, "[i]f the . . . United States Attorney's Office for the District of Columbia . . . determines that [Motley] provided substantial assistance, then th[e] Office will file a departure motion pursuant to Section 5K1.1 of the Sentencing Guidelines in order to afford [him] an opportunity to persuade the Court that [he] should be sentenced to a lesser period of incarceration . . . than indicated by the Sentencing Guidelines." Plea Agreement ¶ 19. The agreement cautioned, however, that whether Motley "has provided substantial assistance pursuant to either Section 5K1.1 of the Sentencing Guidelines or 18 U.S.C. § 3553(e) . . . is within the sole discretion of the United States Attorney's Office . . . and is not reviewable by the Court." Id. ¶ 7.

Particularly relevant for this appeal, the agreement emphasized that, "even if [the United States Attorney's Office] determines that [Motley] provided substantial assistance . . . for purposes of Section 5K1.1 . . ., th[e] Office reserves its right to decline to file a departure motion pursuant to 18 U.S.C. § 3553(e)." Id. ¶ 20. And it noted that, "[i]n the absence of a motion under 18 U.S.C. § 3553(e), the Court will be required to sentence [Motley] to at least the mandatory minimum period of incarceration" for the charge to which he pleads, "even if the Court decides to depart below the applicable guideline range." Id. The agreement stated that the charge to which Motley agreed to plead carried a statutory mandatory minimum prison term of 10 years. Id. ¶ 1.

On August 16, 2006, the government filed the agreed-upon information, and Motley entered the agreed-upon plea. At the plea hearing, Motley confirmed that he had read and signed the government's factual proffer, and that he agreed with it. The proffer stated that, on or about June 13, 2006, members of the Metropolitan Police Department arrested Motley while he was in the act of selling 125 grams of "cocaine base, also known as crack." Proffer 1. The proffer also stated that Motley had sold 62-gram quantities of crack on four previous occasions. It further stated that, on May 19, 2005, police officers executed a search warrant at Motley's apartment and recovered two pistols from his bedroom.

During the plea hearing, the prosecutor advised the court that, as part of the parties' agreement, the government would not file "repeat papers," which would otherwise subject Motley to a statutory mandatory sentence of life imprisonment because of two prior convictions for narcotics distribution. Plea Hr'g Tr. 9 (Aug. 16, 2006).1 The prosecutor noted, however, that as a result of those convictions, Motley remained a "career offender." Plea Hr'g Tr. 9 (Aug. 16, 2009). If there were no Guidelines adjustments or departures, the prosecutor said, the Guidelines sentencing range would be 360 months to life. See id.

Finally, with respect to the cooperation agreement, the court told Motley:

. . . . You must understand that[] whether or not [the government is] satisfied with the extent of your cooperation, that is[,] whether they're going to file what's called a 5K motion[] and a motion under 3553[,] is within the government's discretion.

I cannot control it. . . . I can't go below the mandatory [10 years] without such a motion, and the guidelines will be applicable, although advisory, in the absence of a motion.

So I have no ability to review their decision. You can't withdraw your plea if they don't come through because they don't find your cooperation adequate or sufficient or they don't think it's forthright. You have to understand it's their call, the government's, and not mine.

Id. at 11-12. Motley stated that he understood. Id. at 12.

In June 2008, the government filed a sentencing motion. Motion in Aid of Sentencing and Motion for Departure from the Recommended Guidelines Sentence (June 7, 2008) (hereinafter Sentencing Motion). The motion noted that Motley was a "career offender" under U.S.S.G. § 4B1.1(A) because he had two prior felony convictions for controlled substance offenses. Id. at 3. Accordingly, in light of Motley's offense level and criminal history category, and after an adjustment to reflect his acceptance of responsibility by pleading guilty, the Guidelines range was 262 to 327 months' imprisonment. See id. at 3-4. However, because the government concluded that Motley had provided substantial assistance to law enforcement, it asked the court—pursuant to § 5K1.1—to depart downward from the Guidelines and impose a sentence of between 120 and 135 months.

But the government declined to move the court—pursuant to 18 U.S.C. § 3553(e)—to depart below the mandatory minimum sentence of 120 months. It explained that Motley's "long-term and extensive history of drug dealing . . . and the level of respect he enjoyed around the neighborhood, suggest[ed] that [he] had a more intimate knowledge of the violence around that area than he chose to share." Sentencing Motion 5. In light of this and other factors, the government concluded that, although Motley's cooperation was sufficient "to warrant a significant departure from [the] Guideline sentence calculation of 262 to 327 months of imprisonment," id. at 9, it was not "sufficient to earn him a departure from the mandatory minimum sentence," id. at 8. At the next status hearing, held on June 27, 2008, the district court advised the prosecutor that it was "very troubled" that the government had filed a § 5K1.1 motion without also filing a motion pursuant to 18 U.S.C. § 3553(e), and it directed the government to better explain its rationale. Hr'g Tr. 2 (June 27, 2008); see id. at 8. Thereafter, the government filed, under seal but available to defense counsel, a memorandum further explaining its reasons for declining to file a § 3553(e) motion.

Motley's sentencing hearing was held on July 22, 2008. At the hearing, the government represented that, at the district court's request, it had reexamined "the facts surrounding [Motley's] cooperation and non cooperation" and stood by its original position. Sentencing Hr'g Tr. 4 (July 22, 2008). In response, the court acknowledged that it did not have authority to require the government to file a departure motion under § 3553(e), and that, in the absence of such a motion, it could not impose a sentence below the statutory minimum. See id. at 3-4, 8. The court stated that the government "appeared to have operated in good faith and not discriminated" in declining to file a § 3553(e) motion, and it acknowledged that the government "may be right in terms of the level of cooperation" that Motley provided. Id. at 3-4. Thereafter, the court sentenced Motley to the mandatory minimum sentence of 120 months' incarceration. See id. at 5, 11. This appeal followed.


Motley maintains that the government's refusal to file a departure motion under § 3553(e) was unlawful, and that the district court therefore erred in thinking that it was without authority to sentence him to less than 120 months in prison. The parties differ as to our standard of review. Motley contends...

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