                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 03-3011
                                    ___________

United States of America,                *
                                         *
      Plaintiff - Appellant,             *
                                         * Appeal from the United States
      v.                                 * District Court for the
                                         * Northern District of Iowa.
Gary Lynn Moeller,                       *
                                         *
      Defendant - Appellee.              *
                                    ___________

                               Submitted: May 12, 2004
                                  Filed: September 3, 2004
                                   ___________

Before LOKEN, Chief Judge, BRIGHT, Circuit Judge, and DORR,* District Judge.
                              ___________

LOKEN, Chief Judge.

       Gary Lynn Moeller pleaded guilty to conspiring to manufacture and distribute
five grams or more of actual methamphetamine. The statutory minimum sentence for
this offense is five years in prison. See 21 U.S.C. § 841 (b)(1)(B)(viii). Moeller’s
guidelines sentencing range is seventy-eight to ninety-seven months in prison. The
government filed a motion under U.S.S.G. § 5K1.1 and recommended a twenty
percent downward departure based up Moeller’s substantial assistance in the
investigation and prosecution of other offenders. The government did not make a

      *
      The HONORABLE RICHARD E. DORR, United States District Judge for the
Western District of Missouri, sitting by designation.
motion under 18 U.S.C. § 3553(e), which is required before the court may depart
below a statutory minimum sentence to reflect a defendant’s substantial assistance.
See Melendez v. United States, 518 U.S. 120, 126 (1996).

        At sentencing, the district court observed that the government “can’t not make
the motion just to limit my discretion” and asked defense counsel, “are you going to
make a motion to compel the government to make the 3553(e) motion.” After
Moeller did so, the court granted his motion, concluding that the government acted
in bad faith in refusing to make the § 3553(e) motion “because I can’t think of a
single reason other than to limit my discretion.” The court then sentenced Moeller
to fifty months in prison, ten months below the statutory minimum. The government
appeals. We reverse.

      In Wade v. United States, the Supreme Court defined the respective roles of the
prosecutor and the sentencing court in granting downward departures based on a
defendant’s substantial assistance:

      [I]n both § 3553(e) and § 5K1.1 the condition limiting the court’s
      authority [to grant a downward departure] gives the Government a
      power, not a duty, to file a motion when a defendant has substantially
      assisted.

             Wade nonetheless argues, and . . . we agree, that a prosecutor’s
      discretion when exercising that power is subject to constitutional
      limitations that district courts can enforce. Because we see no reason
      why courts should treat a prosecutor’s refusal to file a substantial-
      assistance motion differently from a prosecutor’s other decisions, we
      hold that federal 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.




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504 U.S. 181, 185-86 (1992) (citation omitted). The Court explained that an
unconstitutional motive is one based on “suspect reasons such as [defendant’s] race
or his religion,” or one “not rationally related to any legitimate Government end.”
504 U.S. at 186.

       Moeller argues, and the district court agreed, that the government may be
ordered to file a § 3553(e) motion if its refusal to file was in “bad faith.” Although
there is language supporting that contention in United States v. Rounsavall, 128 F.3d
665, 667-69 (8th Cir. 1997), where we remanded for an evidentiary hearing, bad faith
is not a constitutional standard. Rather, a substantive due process violation requires
proof that a government official’s abuse of power “shocks the conscience,” County
of Sacramento v. Lewis, 523 U.S. 833, 846 (1998), and an equal protection violation
requires proof of “unlawful, purposeful discrimination.” Batra v. Bd. of Regents, 79
F.3d 717, 722 (8th Cir. 1996). In this case, at sentencing, the prosecutor explicitly
stated that the government’s decision not to file a § 3553(e) motion was “[b]ased
upon the cooperation [Moeller] provided . . . We based it solely on what he did in
this case.” Nothing in the record contradicts this explanation or even suggests the
presence of an unconstitutional motive. Therefore, the district court had no basis to
grant the remedy for an unconstitutional motive reserved in Wade.

       In addition to the issue of unconstitutional motive, our prior cases have
recognized that Congress limited the prosecutor’s nearly unconstrained statutory
authority under § 3553(e) to the question of the defendant’s substantial assistance to
law enforcement. In other words, § 3553(e) “was not intended to grant prosecutors
a general power to control the length of sentences.” United States v. Stockdall, 45
F.3d 1257, 1261 (8th Cir. 1995). Therefore, in United States v. Anzalone, when the
government conceded that the defendant rendered sufficiently substantial assistance
but refused to file a substantial assistance motion because of unrelated misconduct,
we held that § 3553(e) required the government to file the motion, noting that the
prosecutor could then argue to the court that the unrelated misconduct “should

                                         -3-
preclude or severely restrict any downward departure relief.” 148 F.3d 940, 942,
vacated, 148 F.3d 940, reinstated, 161 F.3d 1125 (8th Cir. 1998). Our subsequent
cases have made it clear, however, that relief in Anzalone was predicated on
government concessions that established a statutory duty to file the substantial
assistance motion. See United States v. Wilkerson, 179 F.3d 1083, 1086 (8th Cir.
1999); accord United States v. Buckendahl, 251 F.3d 753, 762 (8th Cir.), cert. denied,
534 U.S. 1049 (2001).

       In this case, the district court compelled the government to file a § 3553(e)
motion “because I can’t think of a single reason [not to file it] other than to limit my
discretion.” But it is not the sentencing court’s function to look behind the
prosecutor’s substantial assistance decision-making in this fashion. The prosecutor’s
evaluation of the quantity and quality of a defendant’s assistance, like a prosecutor’s
decision to prosecute, “is particularly ill-suited to judicial review.” Wayte v. United
States, 470 U.S. 598, 607 (1985). Moreover, as the Supreme Court noted in
Wade,“[t]he Government’s decision not to move may have been based not on a failure
to acknowledge or appreciate [the defendant’s] help, but simply on its rational
assessment of the cost and benefit that would flow from moving.” 504 U.S. at 187.
The government’s refusal to file a § 3553(e) or § 5K1.1 motion always has the effect
of limiting the sentencing court’s discretion. But so long as the government is
exercising the statutory power conferred by those laws and its action is not based on
an unconstitutional motive, its refusal to file the motion is unreviewable.

       Moeller argues in the alternative that we should remand for an evidentiary
hearing to allow him “an opportunity to make a substantial threshold showing” that
the government’s refusal to file a § 3553(e) motion was prompted by an improper
motive. We decline to do so. Neither a claim that the defendant provided substantial
assistance nor “generalized allegations of improper motive” entitle a defendant to
relief. Wade, 504 U.S. at 186. When the government ties its refusal to make a
§ 3553(e) motion to the defendant’s substantial assistance, or lack thereof, and the

                                          -4-
defendant fails to make a substantial threshold showing of improper motive, an
evidentiary hearing is not warranted. See United States v. Wolf, 270 F.3d 1188, 1191
(8th Cir. 2001).

      The judgment of the district court is reversed and the case is remanded for
resentencing with instructions to impose a sentence not less than the statutory
minimum sentence of sixty months in prison. See 18 U.S.C. § 3742(f)(1). The
government’s motion to expand the record on appeal is denied.
                      ______________________________




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