                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 01-1344
                                   ___________

United States of America,               *
                                        *
            Appellee,                   *
                                        * Appeal from the United States
      v.                                * District Court for the
                                        * Northern District of Iowa.
Timothy Dean Wolf,                      *
                                        *
            Appellant.                  *
                                   ___________

                             Submitted: September 12, 2001

                                 Filed: November 9, 2001
                                  ___________

Before BOWMAN, HEANEY, and BYE, Circuit Judges.
                         ___________

BOWMAN, Circuit Judge.

       Timothy Dean Wolf pleaded guilty to conspiring to distribute 500 grams or
more of methamphetamine. See 21 U.S.C. § 841 (a)(1), (b)(1)(A)(viii) (1994 & Supp.
IV 1998); 21 U.S.C. § 846 (1994). The District Court1 sentenced Wolf to a ten-year
prison term. Wolf appeals his sentence on two closely related bases. He first argues
that the District Court erred when it denied his pre-sentencing motion to compel the
government to file a motion (pursuant to United States Sentencing Guideline

      1
        The Honorable Mark W. Bennett, Chief Judge, United States District Court
for the Northern District of Iowa.
(U.S.S.G.) § 5K1.1 or 18 U.S.C. § 3553(e)) for a substantial-assistance downward
departure to reduce Wolf's sentence below both the Guidelines range and the statutory
minimum. Wolf's second argument is that the District Court's decision not to grant
a downward departure pursuant to U.S.S.G. § 5K2.0 was in error because mitigating
circumstances not adequately taken into consideration by the Sentencing Commission
warranted such a departure.

      We conclude that Wolf has failed to make a substantial threshold showing that
the government's refusal to move for a substantial-assistance downward departure
was unconstitutional or motivated by bad faith. Moreover, because the District Court
recognized its authority to depart downward pursuant to § 5K2.0, its decision not to
depart is not subject to review on appeal. We therefore affirm.

       Both U.S.S.G. § 5K1.1 and 18 U.S.C. § 3553(e) permit the government to make
a substantial assistance-based motion for a downward departure. See Wade v. United
States, 504 U.S. 181, 184-86 (1992) (discussing the nature of the discretion granted
to the government and the limitation placed upon the district courts by 18 U.S.C.
§ 3553(e) and U.S.S.G. § 5K1.1). These provisions merely grant the prosecutor
discretion; the government has no duty to make such a motion unless it has entered
into a plea agreement with the defendant that creates such a duty.2 See id. at 185
(observing that "in both § 3553(e) and § 5K1.1 the condition limiting the court's
authority gives the Government a power, not a duty, to file a motion when a
defendant has substantially assisted").

      Absent a motion by the government, a district court generally lacks the
authority to grant a downward departure based on a defendant's substantial assistance.

      2
       As Wolf notes in his opening brief, the government refused to enter into a plea
agreement of any kind. Cf., e.g., United States v. Johnson, 241 F.3d 1049 (8th Cir.
2001) (considering whether government's refusal to move for a substantial-assistance
downward departure breached plea agreement).

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United States v. Matlock, 109 F.3d 1313, 1317 (8th Cir.), cert. denied, 522 U.S. 872
(1997). A district court may review, however, a prosecutor's refusal to make a
substantial-assistance downward departure motion and may grant a defendant relief
if the refusal was unconstitutional, Wade, 504 U.S. at 185-86, or motivated by bad
faith. United States v. Rounsavall, 128 F.3d 665, 667-68 (8th Cir. 1997). A
defendant is entitled to an evidentiary hearing on his allegation of an unconstitutional
or bad faith refusal, but only if he first makes a substantial threshold showing. Wade,
504 U.S. at 186 ("[A] defendant has no right to discovery or an evidentiary hearing
unless he makes a substantial threshold showing." (internal quotation marks
omitted)); Rounsavall, 128 F.3d at 667-68.

       A refusal to file a substantial-assistance downward departure motion is
unconstitutional if it was based upon or motivated by some form of invidious
discrimination. See Wade, 504 U.S. at 186 ("[A] defendant would be entitled to relief
if a prosecutor refused to file a substantial-assistance motion, say, because of the
defendant's race or religion."). Like the defendant in Wade, Wolf "has never alleged,
much less claimed to have evidence tending to show, that the Government refused to
file a motion for suspect reasons such as his race or his religion." Id. The record
before us would not support such an allegation.

       A refusal may also be unconstitutional if it is irrational, for an irrational refusal
denies the defendant due process of law. See id. (explaining that the defendant
"would be entitled to relief if the prosecutor's refusal to move was not rationally
related to any legitimate Government end"); Chapman v. United States, 500 U.S. 453,
464-65 (1991) (noting that a sentencing provision that is arbitrary and thus irrational
offends due process). Wolf admits that he lied to law-enforcement officers when he
denied his and his co-defendant's post-arrest purchase of approximately two ounces
of methamphetamine. He also admits that he lied when he denied his continued drug
use. At Wolf's sentencing hearing, the government represented to the District Court
that Wade's untruthfulness and continuing illegal conduct ruined his potential

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assistance against at least four targets of the government's drug-conspiracy
investigation and set the investigation back several months. The government's refusal
to move for a substantial-assistance downward departure was therefore rationally
related to a legitimate governmental purpose—encouraging criminal defendants to
be fully cooperative and forthright with the government. See United States v. Licona-
Lopez, 163 F.3d 1040, 1042 (8th Cir. 1998) ("Refusing to file a motion for a
defendant who has not been completely truthful with authorities advances the
legitimate governmental interest in providing an incentive for defendants to cooperate
fully.").

       Having determined that the government's refusal did not violate constitutional
standards, we turn to the issue of bad faith. As noted above, a district court may
compel the government to move for a substantial-assistance downward departure if
its refusal was motivated by bad faith. Rounsavall, 128 F.3d at 669 ("[I]f the
government's refusal to file a § 3553(e) motion is irrational and/or in bad faith,
particularly in light of representations made to a defendant, a district court may
require the government to make a downward departure motion."). The essence of
Wolf's allegation of bad faith is that the more lenient treatment some of his co-
conspirators received demonstrates that the government's refusal was an attempt to
dictate the length of his sentence and punish him for his lies and recalcitrance. Some
of Wolf's co-conspirators were sentenced to significantly shorter prison terms than
he was. As Wolf further points out, one of his principal co-conspirators was not
prosecuted federally for criminal conduct that, he alleges, was essentially identical
to his own.

       Wolf nevertheless failed to make a substantial threshold showing to support his
allegation of bad faith. To merit an evidentiary hearing, a defendant must do more
than present "generalized allegations of improper motive." Wade, 504 U.S. at 186.
Wolf's allegation that the government refused to move for a downward departure in



                                         -4-
order to punish him is unsupported.3 Neither at his sentencing hearing nor on this
appeal did he produce evidence of actual punitive intent; rather, he infers such intent
from the mere fact of the refusal. The government, by contrast, has consistently
represented that it refused to move on Wolf's behalf because of the destructive effect
his recalcitrance had upon its investigation and other prosecutions. Where, as here,
uncontradicted evidence plainly demonstrates that the defendant lied and continued
the criminal conduct for which he was charged, a defendant's post hoc comparison of
his sentence with the less severe punishment his co-conspirators received does not
constitute a substantial threshold showing that the government's refusal was in bad
faith. Wolf's challenge to the government's refusal to move for a substantial-
assistance downward departure therefore fails.

       Wolf's challenge to the District Court's exercise of its discretion not to grant
him a downward departure pursuant to U.S.S.G. § 5K2.0 for mitigating circumstances
falling outside the "heartland" cases encompassed by the Guidelines likewise fails.4


      3
       Moreover, we do not think that the word "punishment" can accurately describe
Wolf's failure to receive a substantial-assistance downward departure. A substantial-
assistance downward departure is more appropriately characterized as a reward or
quid pro quo for providing valuable cooperation. Withholding a reward because the
intended recipient fails to fulfill the necessary conditions is not the same as
punishing. Cf. United States v. Romsey, 975 F.2d 556, 558 n.2 (8th Cir. 1992)
("[T]he prosecutor's election not to exercise the discretion to file a § 5K1.1 motion
'does nothing except expose the defendant to the punishment the Sentencing
Commission thought appropriate for his offense and criminal history.'" (quoting
United States v. Smith, 953 F.2d 1060, 1065 (7th Cir. 1992))).
      4
       As part of the factual predicate to support his argument for a § 5K2.0
downward departure, Wolf repeatedly refers to the government's refusal to move on
his behalf for a substantial-assistance downward departure. To dispel potential
confusion, we point out that substantial assistance must be considered under § 5K1.1
and cannot serve as a ground for departure under § 5K2.0. United States v. Fountain,
223 F.3d 927, 928 (8th Cir. 2000), cert. denied, 121 S. Ct. 2195 (2001).

                                         -5-
See U.S. Sentencing Guidelines Manual § 5K2.0 (2000) (providing that a
circumstance not ordinarily relevant in considering a departure may be relevant if it
"is present to an unusual degree and distinguishes the case from the 'heartland' cases
covered by the guidelines"). "[A] discretionary decision not to depart from the
Guidelines is unreviewable on appeal absent an unconstitutional motive" so long as
the district court recognized its authority to depart. United States v. Field, 110 F.3d
587, 591 (8th Cir. 1997) (emphasis added). Here, the District Court recognized its
authority to grant a § 5K2.0 downward departure. The court elected to deny Wolf the
benefit of its § 5K2.0 discretion. There is not even a scintilla of evidence that the
court's ruling was actuated by an unconstitutional motive. The court's denial of
§ 5K2.0 relief is therefore unreviewable.

      Wolf's sentence is affirmed.

      A true copy.

             Attest:

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




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