                          In the

United States Court of Appeals
              For the Seventh Circuit

No. 07-2307

U NITED S TATES OF A MERICA,
                                             Plaintiff-Appellee,
                               v.

D ARNELL C. B ILLINGS,
                                         Defendant-Appellant.


           Appeal from the United States District Court
                for the Central District of Illinois.
       No. 05 CR 20041—Michael P. McCuskey, Chief Judge.



     A RGUED A PRIL 16, 2008—D ECIDED O CTOBER 8, 2008




  Before EASTERBROOK, Chief Judge, and W OOD and W ILLIAMS,
Circuit Judges.
  W ILLIAMS, Circuit Judge. Defendant Darnell Billings
received a statutory minimum sentence of life imprison-
ment after pleading guilty to dealing over 50 grams of
crack cocaine. He claims the government should have
rewarded his cooperation by filing a substantial assistance
motion under 18 U.S.C. § 3553(e), which would have
freed the district court to sentence him below the statu-
tory minimum. Billings also claims the government should
2                                                No. 07-2307

have told him that his incarcerated status would make
it more difficult for him to cooperate with authorities.
Because the government did not act improperly in with-
holding the substantial assistance motion and because
it had no duty to inform Billings about the negative
consequences of his incarceration, we affirm.


                    I. BACKGROUND
  On September 2, 2004, Billings sold crack cocaine to a
confidential informant in Champaign, Illinois. He was
arrested for this conduct on August 5, 2005, and later
indicted on one count of knowingly possessing with the
intent to distribute more than 50 grams of crack cocaine,
in violation of 21 U.S.C. § 841(a)(1).
  At an August 3, 2006, hearing, Billings pled guilty. In
doing so, he testified that he understood that because of
two prior qualifying drug convictions, he faced a manda-
tory minimum sentence of life imprisonment unless the
government moved for a downward departure based on
his cooperation and assistance. See id. § 841(b)(1); 18 U.S.C.
§ 3553(e). The district judge promised he would sentence
Billings to less than life imprisonment if the government
moved for a downward departure, but the govern-
ment stated that Billings had yet to cooperate. After the
hearing, Billings and the government entered a coopera-
tion agreement, the contents of which are not in the record.
  On January 12, 2007, Billings appeared for his sentencing
hearing. Billings’s counsel asked to delay sentencing by
sixty days to give Billings more time to cooperate. The
No. 07-2307                                               3

government did not object to the extension but indicated
that time was running out for Billings. The prosecutor
in charge of the case described how Billings had failed to
take advantage of a previous opportunity to cooperate
before he had been incarcerated:
   Prior to [filing the complaint], the government took
   the unusual step of asking agents to arrest the
   defendant without a warrant on probable cause so
   that we could speak with him without any public
   filing of charges about this very issue, the fact
   that he faced a mandatory sentence of life if he
   were to be charged and convicted, and we did that
   so that we could advise him of that likely scenario
   and to give him the opportunity without any
   disclosure to the public that we were giving him
   that opportunity.
   And after meeting with him in my office and in,
   I believe, January of 2005, two years ago, we never
   heard from him again; and we ended up filing
   the complaint in February of 2005 and then spent
   the next six months looking for him, at which point
   in August of 2005 he was arrested.
The prosecutor also stated that although Billings had
“made an attempt to meet with law enforcement once”
after pleading guilty, “there was no information that [he]
had provided that was of any assistance to [the agents]
whatsoever.”
  On May 25, 2007, Billings appeared for the rescheduled
sentencing hearing. A new prosecutor appeared on behalf
of the government after being briefed on the case by the
4                                                      No. 07-2307

prosecutor in charge about an hour before the hearing. The
new prosecutor stated that the government would not
move for a downward departure because Billings’s at-
tempts to cooperate had not “risen to the level of sub-
stantial assistance.” He remarked on Billings’s extensive
criminal history and stated that he was “struck” by the
fact that Billings “managed at age 27 to have 10 children
from six different women, all of whom will now be with-
out a father.” The new prosecutor also acknowledged
that he could not provide any more details on the case
because he was merely standing in for the prosecutor
in charge of the case.
 The judge then sentenced Billings to the mandatory
minimum of life imprisonment. Billings filed this appeal.1



1
  The district court erred by failing to allow Billings to allocute
prior to sentencing. See United States v. Luepke, 495 F.3d 443, 451
(7th Cir. 2007); Fed. R. Crim. P. 32(i)(4)(A)(ii). Billings concedes,
however, that he was not prejudiced by this error because he
faced a mandatory minimum life sentence, so there is no
chance that he “would have received a lesser sentence had the
district court heard from him before imposing sentence.” Luepke,
495 F.2d at 451. Billings also does not claim that he would have
said anything that would have changed the government’s
decision to withhold a substantial assistance motion. Addition-
ally, recent changes to sentencing practices for crack cocaine
defendants could not have affected these proceedings be-
cause Billings faced a mandatory minimum life sentence. See
United States v. Kimbrough, 128 S. Ct. 558 (2007); United States
Sentencing Commission Guidelines Manual (U.S.S.G.)
§§ 1B1.10, 2D1.1 (2007).
No. 07-2307                                                 5

                      II. ANALYSIS
  A. The government did not improperly withhold a
     substantial assistance motion.
   Billings claims the government improperly withheld a
substantial assistance motion, thereby preventing the
district court from sentencing him below the statutory
minimum of life imprisonment. See 18 U.S.C. § 3553(e)
(“Upon motion of the Government, the court shall have
the authority to impose a sentence below a level estab-
lished 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.”). Although a prosecutor generally has discretion
to withhold such a motion, “federal district courts have
authority to review a prosecutor’s refusal to file a sub-
stantial-assistance motion and to grant a remedy if they
find that the refusal was based on an unconstitutional
motive,” or “was not rationally related to any legitimate
Government end.” Wade v. United States, 504 U.S. 181, 185-
86 (1992); see also United States v. Miller, 458 F.3d 603, 605
(7th Cir. 2006). Because Billings did not raise this argu-
ment in the district court, our review is for plain error.
See United States v. Olano, 507 U.S. 725, 732 (1992) (district
court must have committed an “error” that is “plain,”
“affect[s] substantial rights,” and “seriously affect[s] the
fairness, integrity or public reputation of judicial pro-
ceedings”).
  We agree with Billings that there are some gaps in the
record regarding the type and level of assistance that he
provided to the government. The cooperation agreement
6                                               No. 07-2307

between Billings and the government is absent from the
record. At the first sentencing hearing, the prosecutor
in charge of the case mentioned but did not describe in
any detail how Billings had cooperated after pleading
guilty. And at the rescheduled sentencing hearing, the
new prosecutor was unable to describe any cooperation
attempts since he had joined the case only an hour before-
hand. Perhaps the government could have elaborated on
the assistance that Billings had offered and explained why
it had fallen short. Or maybe the government never did
this because Billings never moved to compel the govern-
ment to file a substantial assistance motion.
   At any rate, Billings must make a “substantial threshold
showing” that the government improperly withheld a
substantial assistance motion before he can receive a
remedy or even discovery or an evidentiary hearing on
this issue. Wade, 504 U.S. at 186. Billings tries to do this
by pointing to the new prosecutor’s comments at the
rescheduled sentencing hearing. He claims these com-
ments are evidence that the government withheld a
substantial assistance motion because of Billings’s numer-
ous past convictions and the myriad children he had
fathered. If this were true, the government would have
acted impermissibly. See United States v. Rounsavall, 128
F.3d 665, 669 (8th Cir. 1997) (“[W]hen contemplating
filing a §3553(e) motion, the government cannot base its
decision on factors other than the substantial assistance
provided by the defendant.”). But a closer review of the
transcript from that hearing shows that the new prosecutor
was merely explaining why Billings was eligible for a
No. 07-2307                                               7

mandatory life sentence and summing up the few facts
that he knew about the case:
   There have been attempts to have cooperation.
   None of it has risen to the level of substantial
   assistance. . . .
   ...
   Beyond that, Your Honor, I can only say this is a
   sentence that is mandated by Congress. The defen-
   dant is a—is the type of defendant Congress
   has said fits within the criteria for three strikes.
   He has been involved in criminal activity since age
   17, and even has a juvenile record before then. He
   has accumulated a staggering amount of serious
   felony convictions, as well as a number of minor
   convictions. He seems to not care at all about the
   law.
   Another thing that struck me was I’m sad to say he
   has managed at age 27 to have 10 children from
   six different women, all of whom will now be
   without a father. So to that extent, that’s the sad-
   dest part about the case in my opinion, Your
   Honor.
   Your Honor, I can’t provide any more details
   because I’m standing in for [the prosecutor in
   charge of this case]. This is not my case.
The new prosecutor mentioned Billings’s previous crim-
inal activity to explain why he faced a mandatory life
sentence. And while the new prosecutor might have been
8                                                  No. 07-2307

expressing his disapproval with Billings’s apparent
promiscuity, his remark was merely an aside that seems
unrelated to the government’s decision to withhold the
substantial assistance motion. Indeed, the new prosecutor
acknowledged that he was merely speaking on behalf of
the prosecutor in charge of the case and was not the
person who had decided to withhold a substantial assis-
tance motion. Sentencing Hr’g Tr. 7-8, May 25, 2007.
(“There is no change in the status [of this case]. [The
prosecutor in charge] so advised me approximately an
hour ago.”).
  Moreover, Billings’s counsel essentially conceded at
the hearing that the government had a rational basis for
withholding this motion because Billings’s incarceration
had rendered him useless to the government:
    [Billings] has met with people several times, agents
    several times. But the problem is, is because of his
    long incarceration, for whatever reasons, it was
    before my time, a person who has been in custody
    for a period of time is not a person who people on
    the outside are going to deal, talk with, give infor-
    mation to helping themselves with the govern-
    ment.
    It was not that he did not try to help the govern-
    ment. It was just he was unable. And I think there
    is a very big difference between someone who just
    refuses to cooperate with the government and
    someone who tries, but because of his situation
    is unable.
See also United States v. King, 62 F.3d 891, 895 (7th Cir. 1995)
(“Incarcerated defendants cannot, on balance, provide as
No. 07-2307                                               9

much assistance as defendants who are free pending
trial.”). Billings does not cite (and we have not found) any
law requiring the government to make a substantial
assistance motion when a defendant makes an unsuc-
cessful yet good faith attempt to help. Rather, under
section 3553(e), the government gets to decide whether
a defendant’s cooperation merits a substantial assistance
motion. See Wade, 504 U.S. at 185 (noting that “the Gov-
ernment [has] a power, not a duty, to file a motion when
a defendant has substantially assisted”); cf. 18 U.S.C.
§ 3553(f) (permitting a court to sentence below a statu-
tory minimum in certain situations even if the govern-
ment does not support such a sentence). We cannot second-
guess the government’s decision to withhold a substan-
tial assistance motion where, as here, its decision was
neither irrational nor based on an impermissible motive.
See Wade, 504 U.S. at 185-87.


  B. The government was not required to inform Bill-
     ings of the difficulty in providing substantial
     assistance.
  Billings also claims the government had a duty to
inform him that his incarcerated status would make it
harder for him to cooperate, which in turn would diminish
the chances that he would be the beneficiary of a substan-
tial assistance motion. He relies on our decision in King,
where we held that if a defendant is “not fairly informed
of the consequences of his decision to plead guilty, a due
process violation has occurred.” 62 F.3d at 895.
10                                                 No. 07-2307

  We do not see how King benefits Billings, as that deci-
sion also states that “the failure to inform [the defendant]
of the effect of his incarceration is not the type of constitu-
tional violation that, under Wade, would allow us to re-
view the prosecutor’s decision not to file the motion.” Id.
Moreover, King involved a plea agreement, where the
defendant claimed that the government allowed him to
plead guilty without informing him that he was unlikely
to get a substantial assistance reduction because he was
incarcerated. Id.; see also United States v. Villareal, 491 F.3d
605, 610-11 (6th Cir. 2007). By contrast, Billings did not
enter a plea agreement (and he only entered a cooperation
agreement after pleading guilty), so he cannot claim that
the government improperly induced him to plead guilty
or breached a plea agreement with him. Cf. United States
v. Wilson, 390 F.3d 1003, 1004 (7th Cir. 2004).
  It also seems far-fetched that Billings had no inkling
that his ability to assist the government would diminish
once he was imprisoned. Billings knew that the govern-
ment had delayed arresting and jailing him in hopes that
he would cooperate, presumably because he was a more
valuable asset on the street than in prison. So Billings
had some idea that incarceration would dampen his
chances of receiving a substantial assistance motion.


                    III. CONCLUSION
  The district court’s judgment is A FFIRMED.

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