United States v. Walter Johns , 548 F. App'x 581 ( 2013 )

Case: 13-11291 Date Filed: 12/06/2013 Page: 1 of 7
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
_____________________________
No. 13-11291
Non-Argument Calendar
_____________________________
D.C. Docket No. 1:10-cr-00233-ODE-LTW-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
WALTER JOHNS,
Defendant-Appellant.
_____________________________
Appeal from the United States District Court
for the Northern District of Georgia
_____________________________
(December 6, 2013)
Before MARCUS, KRAVITCH, and JORDAN, Circuit Judges.
PER CURIAM:
Believing that the government had reneged on its promise to file a
substantial-assistance motion pursuant to Rule 35 of the Federal Rules of Criminal
Case: 13-11291 Date Filed: 12/06/2013 Page: 2 of 7
Procedure, Walter Johns filed a motion to compel the government to do so. The
district court denied Mr. Johns’ motion without an evidentiary hearing, and Mr.
Johns now appeals. Following a review of the record and the parties’ briefs, we
affirm.
I
Mr. Johns pled guilty to a conspiracy to possess with the intent to distribute
at least 5 kilograms of cocaine and was sentenced to 240 months in prison, the
mandatory minimum, followed by 10 years of supervised release. As part of his
plea, Mr. Johns agreed to cooperate with the government, and the plea agreement
in turn provided that “[i]f . . . cooperation [was] completed after sentencing and the
Government determine[d] that such cooperation qualifie[d] as ‘substantial
assistance’ pursuant to Rule 35(b) . . . , the Government w[ould] file a motion for
reduction of sentence.” D.E. 21 at 7-8 (emphasis added). Believing that he
provided substantial assistance in the investigation and prosecution of his co-
defendant Jerrick Williams, who later pled guilty, Mr. Johns filed a pro se motion
to compel the government to file a motion for a downward departure to his
sentence, a motion he later amended with the assistance of counsel. According to
letters attached to Mr. Johns’ motion, the government had refused to file the
motion because it determined that Mr. Johns’ cooperation did not “‘play a large
2
Case: 13-11291 Date Filed: 12/06/2013 Page: 3 of 7
part’ in Mr. Williams’ decision to plead guilty.” D.E. 105 at 3. The district court
denied Mr. Johns’ motion to compel, and he timely filed this appeal.
II
At the outset, we address the government’s argument that we lack
jurisdiction over Mr. Johns’ appeal. It is beyond dispute that “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.” Wade v. United States, 504 U.S. 181, 185-86 (1992). See also United
States v. McNeese, 547 F.3d 1307 (11th Cir. 2008) (applying Wade to a Rule 35
motion). In addition, district courts have original jurisdiction “in the nature of
mandamus to compel an officer or employee of the United States or any agency
thereof to perform a duty owed to the plaintiff.” 28 U.S.C. §1361. Although, as
discussed below, the standard of review varies depending on how we characterize
Mr. Johns’ motion, the existence of our jurisdiction does not. The district court’s
order denying the motion was a final appealable order, and Mr. Johns filed his
notice of appeal within 14 days of the entry of judgment. Accordingly, we have
jurisdiction on appeal. See 28 U.S.C. §1291; Fed. R. App. P. 4(b)(1)(A)(i).
III
If Mr. Johns’ motion is construed as invoking the district court’s authority to
reduce a sentence in the absence of a government motion pursuant to Rule 35, the
3
Case: 13-11291 Date Filed: 12/06/2013 Page: 4 of 7
district court’s denial would call for de novo review. See United States v. Forney,
9 F.3d 1492, 1498 (11th Cir. 1993). Similarly, “[w]hether the Government
breached a plea agreement is a question of law, to be reviewed de novo.” United
States v. De La Garza, 516 F.3d 1266, 1269 (11th Cir. 2008). On the other hand,
we review the denial of a petition for a writ of mandamus for abuse of discretion.
See Kerr v. U.S. Dist. Ct. for the N. Dist. of Cal., 426 U.S. 394, 403 (1976) (“[I]t is
important to remember that issuance of the writ is in large part a matter of
discretion with the court to which the petition is addressed.”). We need not,
however, decide which of these standards applies here because we hold that the
district court’s order passes muster under either standard.
Under Rule 35, the government has the power, but not the duty, to file a
motion for a downward sentencing departure when the defendant provides
substantial assistance within one year of sentencing. See Wade, 504 U.S. at 185.
Although federal district courts may review the government’s refusal to file a Rule
35 motion, in order to prevail the defendant must make a “substantial threshold
showing” that “the refusal was based on an unconstitutional motive,” such as race
or religion, or demonstrate that the refusal “was not rationally related to any
legitimate Government end.” Id. at 185-86. The district court correctly found that
Mr. Johns failed to make this threshold showing.
4
Case: 13-11291 Date Filed: 12/06/2013 Page: 5 of 7
Mr. Johns argues with some force that he provided substantial assistance to
the government following his sentencing. Yet he does not allege that the
government’s refusal to file a Rule 35 motion stems from any unconstitutional
motive. Instead, he merely asserts that “[f]ailing to give anyone credit for honest
substantial assistance that led to the investigation and prosecution of another
person is certainly not a legitimate government interest and violates
constitutionally protected rights.” Appellant’s Br. at 19. But, as the Supreme
Court has made clear, “a claim that a defendant merely provided substantial
assistance,” even when coupled with “additional but generalized allegations of
improper motive,” “will not entitle a defendant to a remedy or even to discovery or
an evidentiary hearing.” Wade, 504 U.S. at 186. Instead, a defendant must
provide “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. Because Mr. Johns does little more than
recount the assistance he provided to the government, the district court correctly
found that he failed to meet this standard, and thus he was “not entitled to a remedy
or to even an evidentiary hearing.” United States v. Dorsey, 554 F.3d 958, 961
(11th Cir. 2009).
The district court also correctly found that the government’s refusal to file a
Rule 35 motion did not constitute a breach of the plea agreement. Mr. Johns
5
Case: 13-11291 Date Filed: 12/06/2013 Page: 6 of 7
argues that his plea agreement created a binding obligation on the government to
file a downward departure motion if he provided substantial assistance. But this
argument ignores the plain language of the plea agreement, which provides that the
government “will file” a motion only if “the Government determines,” in its sole
discretion, that Mr. Johns’ cooperation qualifies as substantial assistance. D.E. 21
at 7-8 (“[T]he determination as to whether Defendant has provided ‘substantial
assistance’ rests solely with the Government.”) (emphasis added). Because the
government here determined that Mr. Johns’ cooperation did not amount to
substantial assistance, it did not breach any express promise to file a downward
departure motion. See Forney, 9 F.3d at 1499 n.2 (declining to review the
government’s refusal to file a motion under U.S.S.G. § 5K1.1 under contract
principles where there was no evidence that “the government failed to comply with
[an] explicit provision of the plea agreement”).
Finally, Mr. Johns asserts that the government acted arbitrarily and in bad
faith in determining whether his cooperation amounted to substantial assistance.
But, even if we disagreed with the government’s assessment of Mr. Johns’
cooperation, “courts are precluded from intruding into prosecutorial discretion” by
“evaluat[ing] the assistance rendered by a defendant offering cooperation as a term
of his plea agreement unless and until the government makes a . . . motion for
downward departure based on substantial assistance.” Forney, 9 F.3d at 1501.
6
Case: 13-11291 Date Filed: 12/06/2013 Page: 7 of 7
Accordingly, under the law of this circuit, a defendant may not challenge the
government’s refusal to file a substantial-assistance motion on the grounds of
generalized bad faith. See id. at 1501 n.4 (explaining that, under “the [Supreme]
Court’s clear holding in Wade[,] . . . judicial review of the government’s decision
not to file a 5K1.1 motion is appropriate only when unconstitutional motivation has
been alleged”).
IV
For the foregoing reasons, we affirm the district court’s denial of Mr. Johns’
motion to compel the government to file a motion for a substantial-assistance
departure pursuant to Rule 35.
AFFIRMED.
7