                     United States Court of Appeals
                              FOR THE EIGHTH CIRCUIT

                                   ___________

                                   No. 97-2932
                                   ___________

United States of America,               *
                                        *
      Plaintiff - Appellee,             *
                                        * Appeal from the United States
      v.                                * District Court for the
                                        * District of Nebraska.
James L. Anzalone,                      *
                                        *
      Defendant - Appellant.            *
                                   ___________

                                 Submitted: January 12, 1998
                                     Filed: June 30, 1998
                                   ___________

Before LOKEN and MURPHY, Circuit Judges, and ALSOP,* District Judge.
                           ___________

LOKEN, Circuit Judge.

       James L. Anzalone appeals the forty-six month sentence he received after
pleading guilty to a cocaine distribution conspiracy offense. He contends the district
court erred in denying his motion to compel the government to file a substantial
assistance downward departure motion under U.S.S.G. § 5K1.1. Because the




      *
        The HONORABLE DONALD D. ALSOP, United States District Judge for the
District of Minnesota, sitting by designation.
government’s refusal to file the motion was for reasons other than the nature of
Anzalone’s substantial assistance, we reverse.

       Anzalone’s plea agreement provided that he would truthfully cooperate with the
United States Attorney and that “[a]ny cooperation provided by you will be considered
by the government under Sentencing Guidelines § 5K1.1 . . . .” This language
preserved the government’s discretion to decide whether to file a substantial assistance
downward departure motion. See United States v. Barresse, 115 F.3d 610, 612 (8th
Cir. 1997). In such cases:

      the court is without authority to grant a downward departure for
      substantial assistance absent a government motion. See Wade v. United
      States, 112 S. Ct. 1840, 1843-44 (1992). Some limited exceptions to this
      rule exist, providing that relief may be granted absent a government
      substantial assistance motion if a defendant shows that the government’s
      refusal to make the motion was based on an unconstitutional motive, that
      the refusal was irrational, or that the motion was withheld in bad faith.
      See Wade, 112 S. Ct. at 1844. However, a defendant is not even entitled
      to discovery or a hearing on such allegations until the defendant makes a
      “substantial threshold showing.” Wade, 112 S. Ct. at 1844.

United States v. Kelly, 18 F.3d 612, 617-18 (8th Cir. 1994) (citations other than Wade
omitted); see United States v. Hammer, 3 F.3d 266, 271 (8th Cir. 1993), cert. denied,
510 U.S. 1139 (1994).

       Anzalone provided assistance, but the government declined to file a § 5K1.1
motion. Anzalone moved to compel its filing. When the district court took up that
motion at the sentencing hearing, the government “agree[d] that [Anzalone] could make
a substantial threshold showing that he has substantially assisted” the government’s
investigation and prosecution of other members of the cocaine distribution conspiracy.
However, the government advised that it would not file a § 5K1.1 substantial assistance


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motion because it received information that Anzalone had recently used and possessed
controlled substances, thereby violating a provision in his plea agreement: “You shall
not commit any additional crimes whatsoever.” Concluding that the government’s
position was rational, the district court denied Anzalone’s motion to compel and
sentenced him without a downward departure.

       On appeal, the parties primarily debate whether the government’s decision was
irrational because it was based, at least in part, on Anzalone’s failure to pass a
polygraph test addressing whether he had used and possessed controlled substances.
We conclude there is a more fundamental defect in the government’s position. Its
refusal to file a substantial assistance motion was based entirely upon a reason
unrelated to the quality of Anzalone’s assistance in investigating and prosecuting other
offenders. But § 5K1.1 and the related statute governing mandatory minimum
sentences, 18 U.S.C. § 3553(e), do not grant prosecutors a general power to control the
length of sentences. Because sentencing is “primarily a judicial function,” Mistretta v.
United States, 488 U.S. 361, 390 (1989), the prosecutor’s virtually unfettered
discretion under § 5K1.1 is limited to the substantial assistance issue, which is a
question best left to the discretion of the law enforcement officials receiving that
assistance. “The desire to dictate the length of a defendant’s sentence for reasons other
than his or her substantial assistance is not a permissible basis for exercising the
government’s power under § 3553(e) [or § 5K1.1].” United States v. Stockdall, 45
F.3d 1257, 1261 (8th Cir. 1995).

        Therefore, “the government cannot base its [§ 5K1.1 motion] decision on factors
other than the substantial assistance provided by the defendant.” United States v.
Rounsavall, 128 F.3d 665, 669 (8th Cir. 1997). Once the government concludes that
a defendant has provided substantial assistance, and has positively assessed in that
regard “the cost and benefit that would flow from moving,” Wade, 112 S. Ct. at 1844,
it should make the downward departure motion and then advise the sentencing court
if there are unrelated factors, such as Anzalone’s alleged post-plea agreement drug use,

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that in the government’s view should preclude or severely restrict any downward
departure relief. The district court may of course weigh such alleged conduct in
exercising its downward departure discretion. See United States v. Casiano, 113 F.3d
420, 428-30 (3d Cir.), cert. denied, 118 S. Ct. 221 (1997); United States v. Luiz, 102
F.3d 466, 469-70 (11th Cir. 1996).1

       Judge Murphy in dissent concludes that the government properly refused to file
a § 5K1.1 motion because paragraph 8 of the plea agreement provides that, if Anzalone
breaches that agreement, for example by committing additional drug offenses, the
government may “refuse to make a motion or recommendation . . . which it is otherwise
bound by this agreement to make regarding sentencing.” We disagree. Paragraph 8
by its plain language does not apply to a substantial assistance downward departure
motion, because the government was never “bound” to make such a motion. The
government merely agreed in paragraph 5.B. that “[a]ny cooperation provided by you
will be considered by the government under Sentencing Guideline § 5K1.1.” Thus, we
need not consider an additional issue raised by the dissent’s analysis -- whether the
government may by agreement with a defendant expand its sentencing authority vis-a-
vis the sentencing court. Cf. U.S.S.G. Ch. 6, Pt. B, intro. comment. (“sentencing is a
judicial function and . . . the appropriate sentence in a guilty plea case is to be
determined by the judge”).

       For the foregoing reasons, the judgment of the district court is reversed and the
case is remanded for further sentencing proceedings not inconsistent with this opinion.
We note the government has not conceded that Anzalone provided substantial

      1
        In confirming this rule, we do not impose upon the government a general duty
to disclose its reasons for not filing a substantial assistance motion, nor do we lighten
the defendant’s burden to make a “substantial threshold showing” of improper motive.
In this case, the government conceded prior to Anzalone making that showing that its
decision not to file the motion was based entirely on a factor unrelated to his substantial
assistance.

                                           -4-
assistance, only that he could make an adequate threshold showing of substantial
assistance.



MURPHY, Circuit Judge, dissenting.

       I respectfully dissent because the comprehensive plea agreement entered into by
the parties is the key to resolution of this appeal. Anzalone’s responsibilities under the
agreement are described in several different paragraphs of the agreement. They include
pleading guilty to count one of the indictment, refraining from additional crimes,
cooperating in very specific ways with the government, and paying the required special
assessment. In return the government made a number of promises, including not to
prosecute Anzalone for any other prior drug violations and to consider any cooperation
under U.S.S.G. § 5K1.1 and 18 U.S.C. § 3553(e).

       The specific undertaking of the government in respect to Anzalone’s cooperation
was contained in paragraph 5.B.: “Any cooperation provided by you will be considered
by the government under Sentencing Guideline § 5K1.1 and U.S.C. § 3553(e).” Section
5K1.1 provides that “[u]pon motion of the government stating that the defendant has
provided substantial assistance..., the court may depart from the guidelines” and that
the “appropriate reduction shall be determined by the court.” It also lists factors the
court may consider in deciding if it wishes to depart, and if so, to what degree. Section
3553(e) provides that “[u]pon motion of the Government, the court shall have the
authority to impose a sentence below a level established by the statute as a minimum
sentence.” Under both sections it is up to the court to decide whether it wants to grant
any downward departure motion and to what extent it might choose to depart. The
sentencing function thus properly remains with the court under the agreement. See U.S.
v. Stockdall, 45 F.3d 1257, 1260 (8th Cir. 1995).




                                           -5-
      Paragraph 8 of the agreement specifically conditioned the government’s
performance on Anzalone’s compliance with his duties:

             ...should you violate any term or condition of this
             agreement, the United States may: refuse to make a motion
             or recommendation, or withdraw any motion or
             recommendation already made, which it is otherwise bound
             by this agreement to make regarding sentencing.

Paragraph 2, the most detailed section describing Anzalone’s duties, begins “You shall
not commit any additional crimes whatsoever.” The parties thus agreed in these
paragraphs that if Anzalone were to engage in criminal activity, the government would
not be bound to consider his cooperation for any departure motion based on substantial
assistance. The fact that paragraph 5.B. is the only section of the lengthy plea
agreement that contains a responsibility of the government which would involve the
making of a motion is evidence that this is the type of motion contemplated by
paragraph 8.

       Since the government’s decision not to make a departure motion was based on
the plea agreement itself, the cases on which the court relies are not on point. United
States v. Wade recognizes the government’s general “power, not a duty, to file a
motion when a defendant has substantially assisted.” 112 S.Ct. at 1843. Here the
government took on a duty in the plea agreement to consider Anzalone’s cooperation,
but that duty was explicitly conditioned on the defendant not committing any additional
crimes. Because of information it received about Anzalone’s recent use of controlled
substances, the government chose not to file a substantial assistance motion. Anzalone
had given it this right in his plea agreement. Review of the decision not to file the
downward departure motion in this case thus turns on the terms of the plea agreement,
not on questions of unconstitutional motive or rationality discussed in Wade or on the
quality of Anzalone’s assistance. The majority cites United States v. Rounsavall, 128
F.3d 665 (8th Cir. 1997), and United States v. Stockdall, 45 F.3d 1257 (8th Cir. 1995),


                                          -6-
for the proposition that only the quality of Anzalone’s assistance can be considered by
the government in deciding whether to make a § 5K1.1 or § 3553(e) motion. Those
cases did not involve a defendant’s violation of an express condition of a plea
agreement, however, and they are not controlling.

        This case is like United States v. Epley, 52 F.3d 571, 580 (6th Cir. 1995), where
the critical fact was also the nature of the plea agreement. The court there noted that:


             ...the government reserved complete discretion over whether
             to request a downward departure. It would go against the
             terms of the plea agreement to find that the government was
             obliged to ask for such a departure.

Here also the government preserved its discretion on filing a departure motion. Under
this agreement the government was entitled to choose not to consider a downward
departure motion if Anzalone violated any term or condition of their contract.

       Because the government acted within its rights under the plea agreement, I would
affirm the judgment of the district court.

      A true copy.


             Attest:


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




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