                     United States Court of Appeals
                             FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 98-3572
                                    ___________

United States of America,            *
                                     *
           Plaintiff-Appellee,       *
                                     * Appeal from the United States
v.                                   * District Court for the
                                     * Eastern District of Missouri.
Bernard Wilkerson,                   *
                                     *
           Defendant-Appellant.      *
                                ___________

                              Submitted: May 11, 1999
                                  Filed: June 9, 1999
                                   ___________

Before WOLLMAN, Chief Judge, BEAM and MURPHY, Circuit Judges.
                             ___________

MURPHY, Circuit Judge.

       Bernard Wilkerson pled guilty to conspiracy to possess with intent to distribute
cocaine and possession with intent to distribute cocaine in violation of 21 U.S.C. §
841(a)(1) and 21 U.S.C. § 846. He was sentenced to 30 months after the district court1
applied the so-called safety valve to depart below the mandatory minimum sentence of
five years set by statute. See 18 U.S.C. § 3553(f). Wilkerson appeals on the basis that
the government improperly refused to move for a downward departure for his


      1
        The Honorable Rodney W. Sippel, United States District Judge for the Eastern
District of Missouri.
substantial assistance and that the district court erred by not compelling the government
to file the departure motion.2 We affirm.

        The underlying facts have been stipulated by the parties. Micah Cain, one of
Wilkerson’s coconspirators, was stopped by agents of the Drug Enforcement
Administration at the St. Louis airport on April 29, 1998. He was arrested after a
consensual search of his bag uncovered over two kilograms of cocaine. Cain told the
agents that he had arranged to deliver the drugs to a hotel in St. Louis. He agreed to
cooperate and to continue with the transaction at the hotel where he received a call that
people were on their way to pick up the cocaine. Agents in an adjoining room
observed Wilkerson and another man enter Cain’s room. Wilkerson took possession
of the six packages of cocaine, and the agents arrested him and his companion as they
left the room.

       Wilkerson was indicted for conspiracy to possess with intent to distribute over
two kilograms of cocaine and possession with intent to distribute. Wilkerson pled
guilty to both charges under a plea agreement. At the time he entered his plea he had
already provided information to federal agents and had agreed to testify as part of the
agreement. Paragraph (1)(e) of the agreement provided:

             Should the defendant continue to cooperate and continue to
             render substantial assistance, the Government will file a
             motion with the sentencing court to depart from the statutory
             mandatory minimum under 18 U.S.C. § 3553(e) and the
             Sentencing Guidelines, pursuant to U.S.S.G. §5K1.1. The
             Government reserves the sole right to make the



      2
       Although Wilkerson’s plea agreement contains a waiver of the normal right to
appeal, the government concedes that the waiver provision would not bar an appeal if
there had been a breach, citing United States v. Serrano, 938 F.2d 1058, 1060 (9th Cir.
1991).

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             determination as to whether the defendant continues to
             provide substantial assistance.

(Emphasis added.) Prior to sentencing Wilkerson failed to appear for drug counseling
four times and tested positive for cocaine on four other occasions. The government
subsequently decided not to file a downward departure motion under § 5K1.1, and
Wilkerson asked the court to enforce the plea agreement by compelling the government
to file the motion.

       The court addressed Wilkerson’s motion to compel during a two-day sentencing
hearing. Counsel for the government stated at the outset that he would not move for
a downward departure because Wilkerson had been using cocaine and had not
informed the government about it or revealed his source for the drug and that this
“typically would preclude a filing of a substantial assistance motion.” He mentioned
that the case agent had given his card to Wilkerson and told him to report any criminal
activity; the case agent was present and said he had never heard from Wilkerson.
Defense counsel argued that the government’s reason had nothing to do with substantial
assistance and was arbitrary and capricious and that Wilkerson remained willing to
cooperate. The district court continued the hearing in order to hear from the case
prosecutor who stated that when he determined that Wilkerson was not cooperating
fully, he decided he was not going to continue trying to work with him. The court
denied Wilkerson’s motion to compel after finding that the decision not to file a motion
for substantial assistance was within the government’s discretion under the plea
agreement and that Wilkerson had essentially rendered himself “useless to the
government” and “ruined himself as a potential witness.” He thus had not continued
to provide substantial assistance. The court offered Wilkerson the opportunity to
withdraw his plea, but he declined.

      The court then sentenced Wilkerson under the guidelines to 30 month concurrent
terms even though he was subject to a mandatory five-year statutory minimum under
21 U.S.C. § 841(b)(1)(B). The court departed below the mandatory minimum by using

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the safety valve statute after finding that Wilkerson did not have a significant criminal
history, he had not used violence and no one was injured, he was only a minor
participant, and he had provided the government with information. See 18 U.S.C. §
3553(f). The base offense level for the quantity of cocaine involved would ordinarily
have put Wilkerson in the 78 to 97 month sentencing range. See U.S.S.G. § 2D1.1.
The court gave him a two level reduction for satisfying the safety valve factors, see
U.S.S.G. §§ 2D1.1(b)(6), 5C1.2, four levels for only a minimal role, see U.S.S.G. §
3B1.2(a), and three levels for acceptance of responsibility, see U.S.S.G. § 3E1.1(a),
(b). The resulting sentencing range was 30 to 37 months, and he was sentenced at the
low end.

       Wilkerson argues on appeal that the district court erred in concluding that the
plea agreement did not require the government to file a § 5K1.1 motion. He argues that
the government’s failure to file the motion constituted a breach of the plea agreement
and that the district court might have reduced his sentence even more if such a motion
had been made. We review the district court’s interpretation and enforcement of the
plea agreement de novo. See United States v. Van Thournout, 100 F.3d 590, 594 (8th
Cir. 1996).

       A sentencing court may not grant a downward departure for substantial
assistance without a motion by the government, see United States v. Kelly, 18 F.3d
612, 617 (8th Cir. 1994), and the government’s discretion in making such motions is
generally subject only to constitutional constraints. See Wade v. United States, 504
U.S. 181, 185 (1992). These constraints would prevent the government from refusing
to file a motion because of the defendant’s race or religion or for a reason not rationally
related to a legitimate government end. Id. at 185-86. The government may choose,
however, to give up its full discretionary power by entering into a plea agreement
promising to file a departure motion if the defendant provides substantial assistance.
See, e.g., Kelly, 18 F.3d at 616. In such an agreement the government may reserve the
right to judge whether the defendant has provided substantial assistance. See id. at
617; United States v. Romsey, 975 F.2d 556, 557 (8th Cir. 1992). Where the

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government has so reserved its discretion, the prosecutor’s refusal to make a downward
departure motion cannot be challenged unless the defendant can make a “substantial
threshold showing” that the refusal was in bad faith, irrational, or based on an
unconstitutional motive. See United States v. Licona-Lopez, 163 F.3d 1040, 1042 (8th
Cir. 1998).

        Wilkerson argues that he is in the same situation as the defendant in United
States v. Anzalone, 148 F.3d 940, vacated and reh’g en banc granted, 148 F.3d 940,
reinstated and reh’g en banc denied, 161 F.3d 1125 (8th Cir. 1998), where there was
a plea agreement requiring substantial assistance but where the government refused to
file a downward departure motion after it heard that the defendant had recently used
drugs. This court reversed the judgment and remanded for further sentencing
proceedings because the government’s decision not to file the motion “was for reasons
other than the nature of Anzalone’s substantial assistance.” Anzalone, 148 F.3d at 941.
In that case the government conceded two key points: 1) that Anzalone “could make
a substantial threshold showing that he ha[d] substantially assisted,” id. at 942, and 2)
that its refusal to file the motion was “based entirely on a factor unrelated to his
substantial assistance,” id. at 942 n.1.

        This case is different from Anzalone. Here the district court found that the
government’s refusal was based on its conclusion that Wilkerson had not met his duty
under the plea agreement to continue to cooperate and to provide substantial assistance.
The agreement gave the government the sole right to judge whether Wilkerson
continued to provide substantial assistance. The record of the sentencing hearing
supports the court’s finding that the decision not to make the motion was based on the
prosecutor’s judgment that Wilkerson had not continued to provide substantial
assistance because he did not keep the government apprised of his ongoing drug
involvement or his sources and because he had undermined his usefulness as a potential
witness, a role he had agreed to play. The government’s decision here was based on
its evaluation of the quality of Wilkerson’s assistance, in contrast to Anzalone where
it raised no criticism of the assistance provided. The plea agreements are also different,

                                            5
and Wilkerson’s created a continuing duty to provide substantial assistance. See 148
F.3d at 941.

        On this record Wilkerson has not shown that the government’s reason for not
filing a § 5K1.1 motion was irrational or based on bad faith or unconstitutional motive.
See United States v. Licona-Lopez, 163 F.3d 1040, 1042-43 (8th Cir. 1998). At oral
argument defense counsel stated that it had been “an act of generosity” for the
government to give Wilkerson an opportunity to provide substantial assistance when
he was a minimal participant who had almost no information of value to the
prosecution. The district court’s findings acknowledged that Wilkerson was only a
minor player in the offense, and his offense level was adjusted accordingly. In these
circumstances, any reduction in his willingness to provide information or in his value
as a witness would rationally be of concern to the government. Wilkerson’s claim of
irrationality or arbitrariness is significantly weaker than in Licona-Lopez, where the
government’s refusal to make a substantial assistance motion was rational because the
defendant had withheld information even though he provided valuable trial testimony.
See 163 F.3d at 1042. Wilkerson also argues that the two prosecutors offered different
explanations for refusing to move for a downward departure and that this shows bad
faith, but their explanations were not inconsistent. Wilkerson has not shown bad faith,
and the court did not err in denying the motion to compel the government to file a
motion.

      For these reasons we affirm the judgment of the district court.



      A true copy.

             Attest:

                CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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