United States v. Naricco Scott ( 2013 )

United States Court of Appeals
For the Eighth Circuit
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No. 13-1054
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United States of America,
lllllllllllllllllllll Plaintiff - Appellee,
v.
Naricco T. Scott,
lllllllllllllllllllll Defendant - Appellant.
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Appeal from United States District Court
for the Western District of Missouri - Kansas City
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Submitted: September 23, 2013
Filed: November 14, 2013
[Unpublished]
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Before LOKEN, COLLOTON, and BENTON, Circuit Judges.
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PER CURIAM.
Naricco T. Scott pleaded guilty to conspiracy to distribute five kilograms or
more of cocaine and fifty kilograms or more of cocaine base. The district court1
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The Honorable Fernando J. Gaitan, Jr., Chief United States District Judge for
the Western District of Missouri.
sentenced Scott to the statutory-minimum term of 240 months’ imprisonment. Scott
argues that the district court abused its discretion by failing to hold an evidentiary
hearing regarding the government’s refusal to file a substantial-assistance motion that
would have authorized the court to sentence below the statutory minimum. See 18
U.S.C. § 3553(e). Scott also contends that his statutory-minimum sentence is
unconstitutional. We affirm.
A grand jury charged Scott with conspiracy to distribute cocaine and cocaine
base, three substantive drug trafficking counts, and a firearms offense. Scott pleaded
guilty to the conspiracy charge, pursuant to a written plea agreement. Because the
government filed notice that Scott had sustained a prior conviction for a felony drug
offense, the statutory-minimum penalty was 240 months’ imprisonment. See 28
U.S.C. §§ 841(b)(1)(A), 851. Although the plea agreement did not provide for
Scott’s cooperation, the government allowed Scott to provide a proffer of information
after he pleaded guilty and told him that if the information amounted to substantial
assistance, then the government would take that circumstance into account, either at
sentencing or later pursuant to Federal Rule of Criminal Procedure 35.
The government did not file a substantial-assistance motion at sentencing, and
Scott objected that it was unfair that some of his co-conspirators received a
substantial-assistance motion while he did not. He also claimed that, before he signed
the plea agreement, his attorney had advised him “that it was the government’s duty
to reward defendants for their cooperation,” and that Scott “had to take . . . the
government’s word for face value and trust that they were going to reward the
defendants for their cooperation.” The government responded that Scott had been
one of the last co-conspirators to plead guilty and had not provided sufficiently
meaningful information to warrant a substantial-assistance motion. The district court
told Scott that the decision whether to file a substantial-assistance motion was “up to
the government” and that the information provided by the others “apparently was
more valuable than the cooperation you offered.”
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The court then sentenced Scott to the statutory minimum of 240 months’
imprisonment, which was fifty-two months below the bottom of the advisory
guidelines range. Scott appeals, arguing that the district court abused its discretion
by not allowing a hearing about the government’s refusal to file a substantial-
assistance motion. He also contends that his statutory-minimum sentence violates his
rights to due process and equal protection and constitutes cruel and unusual
punishment. The parties dispute whether Scott waived his right to appeal, but any
such waiver is not jurisdictional, United States v. Rickert, 685 F.3d 760, 764 n.2 (8th
Cir. 2012), and we elect to resolve this appeal on the merits.
To obtain an evidentiary hearing about the government’s refusal to file a
substantial-assistance motion, a defendant must make a substantial threshold showing
that the government’s refusal was based on an unconstitutional motive. Wade v.
United States, 504 U.S. 181, 185-86 (1992). To make such a showing, Scott must
provide “clear evidence” of unconstitutional motive, not a “mere allegation that
substantial assistance was provided and that the prosecutor had an improper motive
for declining to file a motion for a downward departure.” United States v. Fields, 512
F.3d 1009, 1011 (8th Cir. 2008). Scott failed to make the requisite showing. He
contends merely that the government promised to consider the extent of his
cooperation and that some of his co-conspirators who cooperated before him received
substantial-assistance motions. These assertions do not support a substantial
inference of unconstitutional motive, and they are thus insufficient to justify a
hearing. Scott also contends that his attorney advised him that the government would
reward him for his cooperation by filing a substantial-assistance motion, but counsel
did not have power to bind the prosecutors, and counsel’s alleged statements thus do
not entitle Scott to an evidentiary hearing regarding the government’s conduct.
We also reject Scott’s argument that his statutory-minimum sentence is
unconstitutional because it deprives him of due process, equal protection, and
protection against cruel and unusual punishment. Neither the existence of a statutory-
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minimum penalty nor the government’s ability to grant substantial-assistance motions
to some defendants but not others offends due process or equal protection. United
States v. Prior, 107 F.3d 654, 658-59 (8th Cir. 1997). Scott’s Eighth Amendment
challenge is foreclosed by well-established circuit precedent concerning drug
trafficking penalties. United States v. Garcia, 521 F.3d 898, 901 (8th Cir. 2008).
The judgment of the district court is affirmed.
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