                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 06-3175
                                   ___________

United States of America,               *
                                        *
             Appellant,                 *
                                        * Appeal from the United States
      v.                                * District Court for the Northern
                                        * District of Iowa.
Pearl Elizabeth Ann Freemont,           *
                                        *
             Appellee.                  *
                                   ___________

                             Submitted: September 25, 2007
                                Filed: January 28, 2008
                                 ___________

Before MURPHY, MELLOY, and SMITH, Circuit Judges.
                          ___________

MELLOY, Circuit Judge.

        Pearl Elizabeth Ann Freemont pled guilty to one count of conspiracy to
distribute crack cocaine, one count of distribution of crack cocaine, and one count of
possessing a firearm in furtherance of a drug trafficking crime. Because of her prior
drug convictions, she faced a mandatory life sentence on the two drug counts and a
mandatory consecutive five year sentence on the gun count. The government made
a substantial assistance motion on the drug counts which the trial court granted. The
court then imposed a total sentence of 186 months, using three alternative sentencing
methods and a combination of substantial assistance departures, compelled departures,
and variances. The government appeals the compelled departures and variances. We
reverse and remand for re-sentencing.
                                    I. Background

       Freemont and her boyfriend, Robert Williams, participated in the trafficking of
more than two kilograms of crack cocaine over the course of a year. Upon searching
their residence, police officers found drug paraphernalia, cash, marijuana, crack
cocaine, and a 9mm handgun. The gun was located under Freemont’s mattress, and
she admitted ownership of it.

       Freemont and the government reached a plea agreement. Freemont pled guilty
to conspiracy to distribute crack cocaine in violation of 21 U.S.C. §§ 841(a)(1),
841(b)(1)(A), and 846; distribution of crack cocaine in violation of 21 U.S.C.
§§ 841(a)(1) and 841(b)(1)(C); and possession of a firearm in furtherance of a drug
trafficking crime in violation of 18 U.S.C. § 924(c)(1)(A). Freemont cooperated with
the government by timely supplying information regarding her and her associates’
involvement in the distribution of crack cocaine. Her information led to the federal
indictment of seven individuals and supported state charges against another. In
addition, she testified before three grand juries and at three jury trials. She initially
declined to talk about Williams’s involvement, but later testified against him and was
the key witness against him on a § 924(c) gun count. The Assistant United States
Attorney said she was “truthful and complete” and “one of the best witnesses I’ve
seen as in regards to memory and presentation.” A police officer on the investigation
considered Freemont’s substantial assistance to be “extraordinary” and the best that
he had dealt with.

      Freemont faced a statutory mandatory minimum life sentence on one of the two
drug counts because of two prior drug trafficking convictions. See §§ 841(b)(1)(A)
and 851. To allow the district court to sentence below the statutory mandatory
minimum, the government made U.S.S.G. § 5K1.1 and 18 U.S.C. § 3553(e)
substantial assistance motions on the two drug counts. The government recommended
a 40% downward departure on Freemont’s life sentence for the drug counts. The

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district court granted a 60% downward departure, using 405 months as the starting
point, to 162 months.

        Freemont also faced a consecutive 60-month mandatory minimum sentence on
the gun count. See 18 U.S.C. § 924(c). The government did not make a substantial
assistance motion on that count. The district court questioned the government’s
decision and asked if it was “[b]ecause you want to control the length of the sentence
and hammer her with the 60-month consecutive sentence.” The government explained
that it was based on “a determination of her overall assistance.” The district court
continued questioning the government to find out its motivation and rationale. The
district court commented on how most districts automatically make substantial
assistance motions on every count and wanted to know why this particular district did
not make the motions on every count. The government could not give a specific or
complete answer and repeated “that it was based on her overall assistance in regards
to this particular matter.”

       The district court requested an oral motion from Freemont to compel the
government to make a substantial assistance motion on the gun count. Freemont made
the requested motion, and the district court granted the motion. The court reasoned
that the government in bad faith tried to limit the court’s sentencing discretion by not
filing a motion regarding the gun count. The court also reasoned that the government
wanted to increase the time that Freemont would serve. The court stated that the
decision was not “based on the nature, circumstances, usefulness, significance of the
substantial assistance” because “this is the perfect case where the defendant gave
substantial assistance on the very issue of the gun” and her assistance was the but-for
cause of Williams’s gun conviction. The district court reduced Freemont’s
consecutive mandatory minimum 60-month sentence by 60% to 24 months.

       The district court also made two conditional, alternative sentences to apply in
the event that this court reverse the compelled substantial assistance motion on the gun

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count. In the first alternative, the court granted a conditional variance on the gun
count to reduce it to 24 months. If the variance on the gun count was determined to
be invalid, the court, in its second alternative, granted a conditional variance on the
drug counts to reduce the sentence on the drug counts by an additional 36 months.
The court’s reasoning for the variances was “to avoid . . . unwarranted sentencing
disparities among defendants with similar records who have been found guilty of
similar conduct.” The combined set of sentences would result in the same term of
imprisonment—186 months—regardless of which of the three sentences might be
upheld.

      The government appeals the district court’s grant of the motion to compel a
substantial assistance motion on the gun count and the two alternative conditional
variances.

                                   II. Discussion

       We normally review the district court’s sentence for reasonableness. Gall v.
United States, 128 S. Ct. 586, 594 (2007). However, in this case we do not reach the
reasonableness issue because we find the methods used by the district court to arrive
at a total sentence of 186 months not to be authorized by the applicable statutes and
our prior case law.

                        A. Compelled Motion for Departure

       Section 3553(e) states that “[u]pon motion of the Government, the court shall
have the authority to impose a sentence below a level established by statute as a
minimum sentence so as 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); see United States v. Williams, 474 F.3d 1130, 1130-31 (8th Cir.
2007) (“Where a court has authority to sentence below a statutory minimum only by

                                         -4-
virtue of a government motion under § 3553(e), the reduction below the statutory
minimum must be based exclusively on assistance–related considerations.”). In the
absence of a government motion, a district court is without authority to impose a
sentence below a statutory minimum. Wade v. United States, 504 U.S. 181, 185
(1992); United States v. Holbdy, 489 F.3d 910, 912 (8th Cir. 2007). The government
has the “power, not a duty” to make a § 3553(e) motion. Wade, 504 U.S. at 185. A
defendant’s assistance is the only permissible basis for the government to exercise or
refuse to exercise its power under § 3553(e). United States v. Stockdall, 45 F.3d
1257, 1260-61 (8th Cir. 1995) (holding that, for the right reasons, the government may
refuse to make a motion on each offense). If the government states that because of
other non-assistance and assistance departures, the § 3553(e) motion is “not
warranted” or not “appropriate,” the government makes a permissible policy choice,
and the district court commits no error in declining to compel the motion. United
States v. Mills, 491 F.3d 738, 742 (8th Cir. 2007) (internal quotations omitted).

       The district court may review the government’s refusal to make a motion in
limited circumstances. First, the district court may review the government’s decision
for an unconstitutional motive. Wade, 504 U.S. at 185-86. It is clear that a
substantive due process violation involving the government’s abuse of power that
“shocks the conscience” provides a basis for the district court to compel the
government’s motion. United States v. Moeller, 383 F.3d 710, 712 (8th Cir. 2004)
(internal quotations omitted). Similarly, an equal protection violation involving
“unlawful, purposeful discrimination” provides a basis for the district court to compel
the government’s motion. Id. (internal quotations omitted). The district court may
grant a remedy if “the refusal was based on an unconstitutional motive,” e.g., if the
refusal was based on the defendant’s race or religion or was simply irrational. Wade,
504 U.S. at 185-86. However, the defendant is not entitled to discovery, a remedy,
or an evidentiary hearing if the defendant can offer only “generalized allegations of
improper motive.” Id. at 186. The defendant must make a “substantial threshold
showing” before the court may review the government’s decision because the decision

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“may have been based not on a failure to acknowledge or appreciate [the defendant’s]
help, but simply on [the government’s] rational assessment of the cost and benefit that
would flow from moving.” Id. at 186 (internal quotations omitted).

       Second, a district court can compel a § 3553(e) motion if the government
acknowledges the defendant provided substantial assistance, but refuses to make a
motion expressly because the defendant engaged in unrelated misconduct—a reason
unrelated to the quality of the defendant’s assistance. United States v. Anzalone, 148
F.3d 940, 941 (8th Cir. 1998); see Moeller, 383 F.3d at 712 (stating that the holding
in Anzalone “was predicated on government concessions that established a statutory
duty to file the substantial assistance motion”).

       Third, the district court may be able to compel a motion if the government acted
in bad faith by refusing to make a motion. The Supreme Court has mentioned
unconstitutional motives as providing a basis for compelling the government to move,
but has not discussed bad faith. Wade, 504 U.S. at 185. This court has an intra-circuit
split on whether bad faith provides a basis to compel a motion. Holbdy, 489 F.3d at
913 n.2 (comparing cases). The Moeller court states that bad faith is insufficient
because it “is not a constitutional standard.” Moeller, 383 F.3d at 712; see United
States v. Hodge, 469 F.3d 749, 754 (8th Cir. 2006) (noting its agreement with
Moeller, but declining to enter the intra-circuit debate). Other cases state that the
government’s bad faith in refusing to make a § 3553(e) motion would give the district
court the power to compel the motion, but no case found such bad faith. United States
v. Wolf, 270 F.3d 1188, 1191 (8th Cir. 2001) (referring to “‘bad faith, particularly in
light of representations made to a defendant’” (quoting United States v. Rounsavall,
128 F.3d 665, 669 (8th Cir. 1997))); Anzalone, 148 F.3d at 941; United States v.
Kelly, 18 F.3d 612, 617-18 (8th Cir. 1994).

      In the present case, the government refused to make a § 3553(e) motion on the
gun count, but the district court granted Freemont’s oral motion to compel a § 3553(e)

                                         -6-
motion. These facts are similar to those presented in Moeller. In Moeller, the
defendant pled guilty to a drug count with a statutory minimum sentence of 5 years
in prison. 383 F.3d at 711. The defendant’s guidelines range was 78-97 months in
prison. The government made a § 5K1.1 motion based on the defendant’s substantial
assistance to reduce the sentence, but did not make a § 3553(e) motion that would
enable the district court to depart below the statutory minimum sentence. At
sentencing, the district court encouraged defense counsel to make a motion to compel,
granted it, and stated that the government acted in bad faith by refusing to make the
§ 3553(e) motion because the only reason for the refusal was to limit the district
court’s discretion. The district court sentenced the defendant to 10 months below the
statutory minimum.

       This court reversed, remanded for re-sentencing, and stated that “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 . . . ‘is particularly ill-suited to judicial review.’”
Moeller, 383 F.3d at 713 (citation omitted). But the court noted that “§ 3553(e) ‘was
not intended to grant prosecutors a general power to control the length of sentences.’”
Id. at 712 (quoting Stockdall, 45 F.3d at 1261). The court concluded that while the
government’s refusal to move has the effect of limiting the district court’s discretion,
the district court cannot review the refusal unless it involved an unconstitutional
motive. Id. at 713.

       In the present case, the government’s reason for not making the motion on the
gun count fits within the permissible bounds of prosecutorial discretion and was a
“rational assessment of the cost and benefit that would flow from moving” because
the decision was based on Freemont’s overall assistance. Wade, 504 U.S. at 187. The
government had already acknowledged her substantial assistance through the
§ 3553(e) motion on the drug counts. Freemont also produced no evidence that the
government acted in bad faith by refusing to make a § 3553(e) motion on the gun

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count, and thus this court does not need to address our intra-circuit split on the
circumstances in which the district court may compel the government to make a
§ 3553(e) motion. Consequently, the district court erred in compelling the government
to make a § 3553(e) motion.

                      B. Booker Variance on the Gun Count

       The district court erred by granting a conditional Booker1 variance on the gun
count’s mandatory minimum sentence. The district court justified the variance by
citing the desire to avoid unwarranted sentencing disparities among similarly situated
defendants. See 18 U.S.C. § 3553(a)(6). However, neither Booker, Gall, nor
§ 3553(a) affect a statutory minimum sentence. See Williams, 474 F.3d at 1131;
United States v. Vieth, 397 F.3d 615, 620 (8th Cir. 2005). The Williams court
discussed this topic at length:

      Nothing in the reasoning of Booker expands the authority of a district
      court to sentence below a statutory minimum. The Court’s remedial
      holding provided that to cure the constitutional infirmity of the
      mandatory guidelines system, a district court is authorized to consider
      the factors set forth in § 3553(a), and to vary from the sentence otherwise
      indicated by the sentencing guidelines. But Booker did not question the
      constitutionality of statutory minimum sentences. . . . Because statutory
      minimum sentences remain constitutional, and it is constitutional for
      Congress to limit a court’s authority to sentence below such minimums,
      the remedial holding of Booker does not impact the pre-existing
      limitations embodied in § 3553(e).

 Williams, 474 F.3d at 1132.




      1
       United States v. Booker, 543 U.S. 220 (2005).


                                         -8-
       Section 3553(e) governs when a sentencing court may impose a sentence less
than the mandatory minimum. First, the title of § 3553(e)—“Limited authority to
impose a sentence below a statutory minimum”—indicates that “statutory minimum
sentences [are] to be firmly enforced, subject only to carefully ‘limited’ exceptions.”
Williams, 474 F.3d at 1132. Second, this section specifies when a sentencing court
may sentence a defendant to less than the mandatory minimum: only “so as 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); see Williams, 474 F.3d
at 1132. Thus, when the district court granted a variance below the statutory
mandatory minimum based on factors listed in § 3553(a)(6), it exceeded its limited
authority under § 3553(e) to impose a sentence below the statutory minimum. See
Williams, 474 F.3d at 1132 (stating that a district court exceeds its authority by
reducing a mandatory minimum sentence based on the history and characteristics of
the defendant).

                      C. Booker Variance on the Drug Counts

       The district court also erred by granting a conditional Booker variance on the
statutory, mandatory drug counts. The district court had already granted a downward
departure on the drug counts through the government’s substantial assistance motions.
The “reduction below the statutory minimum must be based exclusively on assistance-
related considerations.” Id. at 1131. If the court reduces the sentence further based
on § 3553(a) factors, which are unrelated to assistance, the court exceeds the limited
authority granted by § 3553(e). Id. at 1132. We see nothing in Gall that would call
this holding into question or authorize this panel to overrule the clear holding of a
prior panel. As the district court based its variance on a § 3553(a) factor—“the need
to avoid unwarranted sentence disparities,” and not §3553(e), the court erred as a
matter of law.




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                                  III. Conclusion

      For these reasons, we reverse and remand for re-sentencing on all counts.2
                      ______________________________




      2
        We express no opinion as to whether the district court should base any
substantial assistance departure at re-sentencing on a starting point of 405 months or
whether 360 months may be more appropriate. See United States v. Burns, 500 F.3d
756, 766 (8th Cir. 2007) (en banc) (stating the district court properly started from a
life sentence of 360 months, but noting that “we do not address the appropriateness
of departing from a presumptive life sentence at, or in excess of, 360 months”). We
leave that issue to the district court upon remand.

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