                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 07-2452
                                    ___________

United States of America,                *
                                         *
             Appellee,                   *
                                         * Appeal from the United States
      v.                                 * District Court for the District of
                                         * Minnesota.
Alexander Louis Perez,                   *
                                         *
             Appellant.                  *
                                    ___________

                              Submitted: February 13, 2008
                                 Filed: May 22, 2008
                                  ___________

Before RILEY, JOHN R. GIBSON, and BENTON, Circuit Judges.
                            ___________

BENTON, Circuit Judge.

        Alexander Louis Perez pled guilty to possession with intent to distribute
methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B), and possession
of a firearm during a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A).
The district court1 sentenced him to 157 months’ imprisonment. Perez appeals,
arguing that the district court erred in denying his request for an evidentiary hearing
on substantial assistance, and that Federal Rule of Criminal Procedure 35(b), 18


      1
      The Honorable Donovan W. Frank, United States District Judge for the District
of Minnesota.
U.S.C. § 3553(e), and U.S.S.G. § 5K1.1 are unconstitutional. Having jurisdiction
under 28 U.S.C. § 1291, this court affirms.

        As part of the plea agreement, Perez agreed to cooperate with law enforcement
in the investigation and prosecution of other suspects. If the government, in its “sole
discretion,” concluded he provided substantial assistance, it agreed to move for a
downward departure under § 3553(e) and/or § 5K.1.1. The agreement stated: “No
motion will be made unless the defendant is completely and fully truthful and has
provided substantial assistance to the government.”

      Perez subsequently participated in the investigation of B.H., by engaging in
several controlled buys of crack cocaine, which led to B.H.’s arrest and conviction.
Perez then attempted to assist in the investigation of M.H. However, he failed to
follow law enforcement’s instructions. Although officers arrested M.H. for
possession of drugs and guns, they did not pursue charges because they believed Perez
had entrapped M.H. by giving him the drugs in exchange for transporting the guns.

       When Perez violated a condition of his pretrial release, he was placed in jail.
There, another inmate informed federal agents that Perez had threatened the life of the
prosecutor assigned to his case. When federal agents first interviewed Perez, he
denied making any threats or anything that could be a threat. To prove he was telling
the truth, he agreed to take a polygraph test. During the polygrapher’s preliminary
interview, Perez said that he had asked another inmate what would happen if the
prosecutor disappeared, which the federal agent interpreted as a threat. Because Perez
admitted making a threatening statement, officers determined there was no reason to
conduct the polygraph.

      Based on these events, the government requested that Perez’s sentence be
increased for obstruction of justice, and no credit be given for acceptance of
responsibility. The government also decided not to make a motion for downward

                                         -2-
departure for substantial assistance. Perez requested a hearing on each of these issues.
Although the district court conducted a hearing regarding obstruction of justice and
acceptance of responsibility, it denied Perez’s motion for an evidentiary hearing as to
substantial assistance, finding that he had failed to make a substantial threshold
showing of improper motive. The district court stated, “there is nothing in the record
that I see that would create an irrational and unconstitutional or other unethical or
improper or illegal reason for the government to decline to file the motion. So, I
believe the threshold hasn’t been met.” During the hearing on obstruction of justice,
Perez testified, “We were playing spades and the guy said he was going to go home
because his prosecutor didn’t show up. And I asked, would the same thing happen to
us if our prosecutor didn’t show up? It was just a joke, but I see everybody took it
serious.” The district court sentenced him to 157 months’ imprisonment.

       “Upon motion of the Government,” a district court has authority to impose a
sentence below a statutory 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). “Without a government motion, the
district court is without authority to impose a sentence below a statutory mandatory
minimum sentence.” United States v. Holbdy, 489 F.3d 910, 912 (8th Cir. 2007).
Under § 5K1.1, a district court may depart from the guidelines “[u]pon motion of the
government stating that the defendant has provided substantial assistance in the
investigation or prosecution of another person who has committed an offense . . . .”
U.S.S.G. § 5K1.1. Both § 3553(e) and § 5K.1.1 give “the Government a power, not
a duty, to file a motion when a defendant has substantially assisted.” Wade v. United
States, 504 U.S. 181, 185 (1992). “The government has no duty to make a substantial
assistance motion unless it has entered into a plea agreement with the defendant that
creates such a duty.” United States v. Mullins, 399 F.3d 888, 889-90 (8th Cir. 2005)
(internal alterations and quotation marks omitted).




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       “A district court may review the government’s refusal to make a substantial
assistance motion under section 3553(e) or section 5K1.1, if such refusal (1) was
prompted by an unconstitutional motive, such as the defendant’s race or religion; or
(2) was not rationally related to a legitimate government interest.” Id. at 890, citing
Wade, 504 U.S. at 185-87. There is an intra-circuit split whether bad faith is an
additional basis for compelling a motion for downward departure based on substantial
assistance. See Holbdy, 489 F.3d at 913 n.2, comparing United States v. Moeller, 383
F.3d 710, 712 (8th Cir. 2004), with United States v. Wolf, 270 F.3d 1188, 1191 (8th
Cir. 2001) and United States v. Kelly, 18 F.3d 612, 617-18 (8th Cir. 1994). This court
reviews the denial of a motion to compel for an abuse of discretion. United States v.
McClure, 338 F.3d 847, 850 (8th Cir. 2003).

       “[A] claim that a defendant merely provided substantial assistance will not
entitle a defendant to a remedy or even to discovery or an evidentiary hearing. Nor
would additional but generalized allegations of improper motive.” Wade, 504 U.S.
at 186. Instead, to obtain an evidentiary hearing, “a defendant must make a
‘substantial threshold showing’ that the government’s refusal to make a substantial
assistance motion was premised on an improper motive.” Mullins, 399 F.3d at 890,
quoting Wade, 504 U.S. at 186. “This threshold showing requires more than the
presentation of evidence of substantial assistance and general allegations of improper
motive because we presume a prosecutor has properly discharged her duties absent
clear evidence to the contrary.” United States v. Pamperin, 456 F.3d 822, 825 (8th
Cir. 2006) (internal citations and quotation marks omitted).

       Perez argues that the district court erred in refusing to hold an evidentiary
hearing on substantial assistance because he satisfied his substantial threshold
showing of improper motive. He maintains that the government’s refusal to make a
motion was driven by its “policy” of refusing downward departure for a defendant
who provides substantial assistance but is later accused of obstruction of justice, and
that this reason is unconstitutional, illegitimate, or in bad faith. Perez asserts that the

                                           -4-
existence of this “policy” is evidenced by the fact that the government first
conditioned the motion on successful completion of a polygraph test, but then revoked
the offer when he tried to comply. He stresses his substantial assistance in the arrest
and conviction of B.H.

       The government decided not to move for a downward departure based on
Perez’s disruption of the investigation of M.H., his threats, and his false statements
to federal agents.2 Perez has proffered no evidence that the government’s decision
was prompted by an unconstitutional motive. Furthermore, the refusal was rationally
related to a legitimate governmental end, providing an incentive for defendants to
cooperate fully with authorities. See Wolf, 270 F.3d at 1191 (government’s refusal
to file motion for downward departure because the defendant was untruthful with
authorities was rationally related to the legitimate governmental interest in providing
an incentive for defendants to fully cooperate); United States v. Licona-Lopez, 163
F.3d 1040, 1042 (8th Cir. 1998) (same). Perez’s mere assertions of assistance are also
not sufficient. See Mullins, 399 F.3d at 890.




      2
        At oral argument, Perez asserted that United States v. Anzalone, 148 F.3d 940
(8th Cir. 1998), reinstated by 161 F.3d 1125 (8th Cir. 1998), controls this case. There,
this court held that “the government cannot base its § 5K1.1 motion decision on
factors other than the substantial assistance provided by the defendant.” Anzalone,
148 F.3d at 941 (internal alterations and quotation marks omitted). Specifically, the
government conceded that the defendant could make a substantial threshold showing
of substantial assistance, and that its refusal to file was based on an unrelated factor.
See id. at 941-42. Here, Perez’s disruption of the investigation of M.H. and his
untruthfulness do relate to the quality of his assistance. See Pamperin, 456 F.3d at
825; United States v. Ziesman, 409 F.3d 941, 957 (8th Cir. 2005); Moeller, 383 F.3d
at 712-13; McClure, 338 F.3d at 850; United States v. Johnston, 220 F.3d 857, 863-
64 (8th Cir. 2000); United States v. Wilkerson, 179 F.3d 1083, 1086 (8th Cir. 1999).


                                          -5-
       Even if bad faith is a basis to compel a motion for downward departure, Perez
did not show bad faith. See United States v. Hodge, 469 F.3d 749, 754-55 (8th Cir.
2006). The government provided a rational reason for not administering the
polygraph test – immediately before it was to begin, Perez admitted making the
statement in question. Perez did not support his allegation that the government’s
“policy” is actually aimed at punishing him. See Holbdy, 489 F.3d at 914
(“unsupported claims of retaliation are insufficient to meet the threshold showing
under Wade”), citing Wolf, 270 F.3d at 1191 (defendant’s assertion that government’s
refusal to file motion for downward departure was punishment for him lying to
officers, without any evidence of punitive intent, was insufficient to meet substantial
threshold burden).

       Perez does not satisfy his substantial threshold burden. Instead, he only
reiterates the extent of his assistance and makes “generalized allegations of improper
motive.” See Wade, 504 U.S. at 186. The district court did not err in refusing to hold
an evidentiary hearing.

       Perez also argues the district court violated the Fifth Amendment Due Process
Clause by granting the government’s motion for hearings on obstruction of justice and
acceptance of responsibility without any showing, while denying his motion for a
hearing on substantial assistance for failure to make a substantial threshold showing.
He alleges that the regime created by § 3553(e), § 5K1.1, Rule 35(b), and mandatory
minimum sentences violates due process and the separation of powers doctrine. This
argument has been rejected by this court. See, e.g., Holbdy, 489 F.3d at 914 (the
government motion requirement under § 3553(e) and Rule 35(b) does not violate the
separation of powers doctrine); United States v. Williams, 474 F.3d 1130, 1132 (8th
Cir. 2007) (statutory minimum sentences are constitutional); United States v. Kelley,
956 F.2d 748, 752 (8th Cir. 1992) (en banc) (the government motion requirement does
not violate due process or separation of powers doctrine); United States v. Grant, 886



                                         -6-
F.2d 1513, 1514 (8th Cir. 1989) (the government motion requirement under § 5K1.1
does not violate due process).

      The judgment of the district court is affirmed.
                     ______________________________




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