United States v. Parish Mackmore , 302 F. App'x 506 ( 2008 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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Nos. 07-3221/08-2011
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United States of America, *
*
Plaintiff – Appellee, *
* Appeal from the United States
v. * District Court for the
* Southern District of Iowa.
Parish Mackmore, *
* [UNPUBLISHED]
Defendant – Appellant. *
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Submitted: December 8, 2008
Filed: December 15, 2008
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Before WOLLMAN, BYE, and RILEY, Circuit Judges.
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PER CURIAM.
Parish Mackmore appeals the district court's1 denial of his motion to compel the
government to file a downward departure motion under 18 U.S.C. § 3553(e) and to
reduce his sentence below the statutory mandatory minimum when he was resentenced
under 18 U.S.C. § 3582(c)(2). We affirm.
1
The Honorable John A. Jarvey, United States District Judge for the Southern
District of Iowa.
I
On July 31, 2001, Mackmore pleaded guilty to conspiracy to distribute and
possess with intent to distribute fifty grams or more of cocaine base, i.e., crack
cocaine, in violation of 21 U.S.C. §§ 846 and 841(b)(1)(A). The plea agreement
acknowledged Mackmore was subject to a statutory mandatory minimum sentence of
120 months imprisonment. See 21 U.S.C. § 841(b)(1)(B). It also provided the
government would file a motion for downward departure "from the guideline
sentence" if the government, in its sole discretion, found Mackmore provided
substantial assistance. The agreement did not specify whether such a downward
departure motion would be filed under § 3553(e) or § 5K1.1 of the United States
Sentencing Guidelines Manual (U.S.S.G.),2 but rather left the decision in the sole
discretion of the government. Ultimately, the government moved for a downward
departure under § 5K1.1, but not under §3553(e).
At sentencing on January 3, 2002, Mackmore was assessed a total offense level
of 33 and a criminal history category III, resulting in a guidelines range of 168-210
months. The district court granted the government's motion for a downward departure
and sentenced him to 140 months imprisonment.
On July 27, 2007, Mackmore filed a motion to compel the government to file
another downward departure motion—this time, under § 3553(e)—due to convictions
of persons about whom he gave information subsequent to his sentencing. He also
asserted the government's refusal to make a § 3553(e) motion was a bad faith breach
of the plea agreement.
2
"A motion under § 5K1.1 authorizes the sentencing court to depart below the
applicable advisory guideline range in determining the advisory guideline sentence,
and a § 3553(e) motion permits the court to sentence below a statutory minimum."
United States v. Williams, 474 F.3d 1130, 1131 (8th Cir. 2007).
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The district court denied the motion, noting the government preserved its
discretion in deciding whether to present such a motion, and Mackmore had failed to
allege any legal cause to compel the government to seek a further reduction.
Mackmore appealed.
In February 2008, on its own motion, the district court reopened Mackmore's
sentencing for a possible reduction under 18 U.S.C. § 3582(c)(2) due to the retroactive
amendment of the guidelines for crimes involving crack cocaine. See U.S.S.G. app.
C, amend. 706. (2007) (adjusting downward by two levels the base offense level
assigned to each threshold quantity of crack cocaine listed in the Drug Quantity Table,
U.S.S.G. § 2D1.1), amend. 711 (Supp. 2007) & amend. 713 (Supp. 2008).
The district court found Mackmore was eligible for a sentencing reduction.
Mackmore's amended guidelines range was 135-168 months. A proportional
reduction for substantial assistance resulted in a revised range of 112-140 months.
After noting the sentencing reduction could not be below the mandatory minimum
sentence, the court reduced Mackmore's sentence to 120 months imprisonment.
Mackmore appealed. This appeal was consolidated with his previously-filed appeal.
II
"A district court may review the government's refusal to make a substantial
assistance motion under section 3553(e) . . . , if such refusal (1) was prompted by an
unconstitutional motive, such as the defendant's race or religion; or (2) was not
rationally related to a legitimate government interest." United States v. Perez, 526
F.3d 1135, 1138 (8th Cir. 2008). "There is an intra-circuit split whether bad faith is
an additional basis for compelling a motion for downward departure based on
substantial assistance." Id. We review the denial of a motion to compel a § 3553(e)
motion for abuse of discretion. Id.
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As Mackmore acknowledges, the government was "not strictly bound by the
terms of the plea agreement to file a [§ 3553(e)] motion." He contends the
government nonetheless had an obligation to file a § 3553(e) motion because he
provided the government with "extensive, significant, and useful information leading
to the conviction and/or guilty pleas of at least six other individuals."
The law is clear, however, merely reiterating the extent of one's assistance and
making generalized allegations of improper motive are insufficient to grant a motion
to compel a § 3553(e) motion. Wade v. United States, 504 U.S. 181, 186 (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. Nor would
additional but generalized allegations of improper motive."); Perez, 526 F.3d at 1138
(holding that a defendant must show "more than the presentation of evidence of
substantial assistance and general allegations of improper motive because we presume
a prosecutor has properly discharged her duties absent clear evidence to the
contrary"); United States v. Mullins, 399 F.3d 888, 890 (8th Cir. 2005) ("A
defendant's bare assertions of assistance do not constitute a 'substantial threshold
showing' of improper conduct by the government.").
Mackmore has proffered no evidence that the government's decision not to file
a § 3553(e) motion was prompted by an unconstitutional motive or was not rationally
related to a legitimate government interest. Nor, even if bad faith is a basis to compel
a § 3553(e) motion, has Mackmore demonstrated bad faith. Because Mackmore has
not satisfied his burden of demonstrating an improper motive, the district court did not
abuse its discretion by refusing to compel the government to file a § 3553(e) motion.
III
"Without a government motion, the district court is without authority to impose
a sentence below a statutory mandatory minimum sentence." United States v. Holbdy,
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489 F.3d 910, 912 (8th Cir. 2007). This is true even in proceedings to reduce
sentences under § 3582(c)(2). See United States v. Black, 523 F.3d 892, 892-83 (8th
Cir. 2008); United States v. Peters, 524 F.3d 905, 907 (8th Cir. 2008); U.S.S.G §
1B1.10(b)(2)(A) cmt. n.1(A)(ii) (2008) (sentencing reduction not authorized if the
retroactive amendment does not lower the defendant's applicable guidelines range
because of a statutory provision, e.g., a statutory mandatory minimum sentence).
Mackmore nonetheless argues the district court should have forced the
government to file a § 3553(e) motion and sentenced him below the mandatory
minimum when he was resentenced under § 3582(c)(2). But, as discussed above, the
district court did not abuse its discretion in denying Mackmore's motion to compel a
§ 3553(e) motion. In determining the revised guidelines range, the district court
properly set the bottom of the range at the mandatory minimum. Therefore, the
district court did not err by resentencing Mackmore to 120 months imprisonment.
IV
We affirm.
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