December 8, 2016
from the United States District Court for the Northern
District of Illinois, Eastern Division. No. 13-CR-239 -
Elaine E. Bucklo, Judge.
Manion, Kanne, and Hamilton, Circuit Judges.
Manion, Circuit Judge.
Patton was a high-level drug dealer who, after being arrested
for an unrelated firearms offense, agreed to cooperate with
the government. Patton acted as an informant in the
government's investigation of illegal firearm sales but
then disappeared for several months. After he reemerged, he
pleaded guilty to the drug charges and was sentenced. At
sentencing the government refused to move for a sentencing
reduction for substantial cooperation. The district court
then sentenced Patton to a below-guidelines prison sentence
of 244 months' imprisonment. Patton appeals, claiming the
district court should have forced the government to file a
motion for a sentencing reduction. We affirm.
Patton was a major cocaine and heroin dealer in the Chicago
area. In April 2010, law enforcement agents arrested
Patton's courier with 8 kilograms of cocaine and 3
kilograms of heroin. Agents for the Bureau of Alcohol,
Tobacco, Firearms and Explosives ("ATF") later
arrested Patton pursuant to an arrest warrant in an unrelated
firearms investigation. After he was arrested, Patton
confessed to his use of firearms and his drug-trafficking
activities. He then agreed to cooperate with the ATF. Patton
assisted the ATF for about a year and made several controlled
purchases of firearms. However, the government agent working
with Patton was inexperienced and allowed Patton to pick his
own targets. As a result, according to the government, Patton
only delivered street-level dealers, protecting higher-level
sources as well as family and friends. Nonetheless,
Patton's efforts resulted in several convictions and the
government removing 60 guns off the streets.
August 2012, the ATF informed Patton that the government was
about to appear before a grand jury and needed him to
testify. The government also informed Patton that he would be
indicted soon on the drug charges. Soon thereafter, Patton
disappeared, reemerging in February 2013 only after the
government had finished several trials and word was out on
the street that Patton was an informant. The government
claims Patton only came forward then because he needed the
attempted to negotiate a plea agreement with the government,
but because he had been AWOL for over six months, his efforts
were unsuccessful. Patton eventually pleaded guilty to the
drug charges without a plea agreement. At sentencing, Patton
asked the district court to force the prosecutor to file a
motion for a reduction in the statutory mandatory sentence
and sentencing range for substantial assistance under 18
U.S.C. § 3553(e) and U.S.S.G. § 5K1.1. The district
court stated that it didn't think it had the authority to
do so, but even if it did, it would not require the
government to file such a motion under the circumstances.
Nonetheless, in weighing the § 3553(a) factors, the
district court took into consideration Patton's
cooperation with the government and sentenced him to a
below-guideline sentence of 244 months'
imprisonment. Patton appeals his sentence.
appeal, Patton argues that the district court erred in
denying his request to force the government to file a motion
pursuant to § 3553(e) and U.S.S.G. § 5K1.1 for a
reduced sentence for substantial assistance. Section 3553(e)
provides that district courts, "[u]pon motion of the
Government, " may impose a sentence below the statutory
minimum 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). And Section 5K1.1 provides: "Upon motion of the
government stating that the defendant has provided
substantial assistance in the investigation or prosecution of
another person who has committed an offense, the court may
depart from the guidelines."
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" or if it "was not
rationally related to any legitimate Government end."
Wade v. United States, 504 U.S. 181, 185-86 (1992).
The burden is on the defendant, however, to make a
"substantial threshold showing" that the government
improperly withheld a substantial-assistance motion before he
can receive a remedy. Id. at 186.
does not argue that the government withheld the motion based
on unconstitutional motives; rather, he claims the
government's decision not to move for a reduction for
substantial assistance "was not rationally related to
any legitimate Government end." However, contrary to
Patton's argument, the government presented two
legitimate justifications for its decision to withhold a
substantial-assistance motion on Patton's behalf. First,
the government explained to the district court that Patton
did not fully cooperate in its investigation into illegal
guns sales, but instead purposely chose targets to avoid
ensnaring family members, friends, and higher-level gun
dealers. Second, the government stressed that Patton
disappeared for over six months, right after being told he
was going to be indicted and needed to testify at a grand
jury hearing. While Patton claims he had to have an operation
during that time and that his wife turned off his cell-phone,
even his own attorney acknowledged that Patton could have
acted more promptly in getting in touch with the government
following his surgery. Both rationales support the
government's decision not to move for a reduced sentence.
See United States v. Miller, 458 F.3d 603, 605 (7th
Cir. 2006) (holding that prosecutor's refusal to file a
substantial-assistance motion was rationally related to a law
enforcement end when "the government declined to file
the motion because it believed that [the defendant] was not
forthcoming in reference to his cocaine source");
United States v. Davis, 247 F.3d 322, 328 (1st Cir.
2001) (noting the defendants' "failure to cooperate
in the murder investigation provides a basis for the
[government withholding a motion], whatever [the
defendant]'s view that he had given enough already and
should not be forced to go that far").
argues in response that he is entitled to remand to allow for
more discovery and a hearing to allow him to show that the
government's actual motive in withholding a motion for
substantial assistance was impermissible. But, as the Supreme
Court held in Wade, a defendant has no right to
discovery or an evidentiary hearing unless he makes a
"substantial threshold showing" of an improper
motive. Patton failed to make such a showing. In fact, Patton
did not even argue to the district court that the
government's rationale for refusing to move for a
substantial-assistance reduction was unrelated to a
legitimate government end. Instead, Patton merely argued that
he deserved the reduction because he provided the government
with substantial assistance which led to the prosecution of
seven individuals and taking 60 ...