                            PUBLISHED

UNITED STATES COURT OF APPEALS
                FOR THE FOURTH CIRCUIT


UNITED STATES OF AMERICA,              
                 Plaintiff-Appellee,
                 v.                               No. 01-4047
DONNTRAIE LEMANES BUTLER,
             Defendant-Appellant.
                                       
            Appeal from the United States District Court
       for the Middle District of North Carolina, at Durham.
                William L. Osteen, District Judge.
                            (CR-00-151)

                      Argued: September 28, 2001

                      Decided: December 3, 2001

      Before WILKINSON, Chief Judge, and WIDENER and
                 WILLIAMS, Circuit Judges.



Affirmed by published opinion. Chief Judge Wilkinson wrote the
opinion, in which Judge Widener and Judge Williams joined.


                             COUNSEL

ARGUED: Tamura D. Coffey, WILSON & ISEMAN, L.L.P.,
Winston-Salem, North Carolina, for Appellant. Sandra Jane Hairston,
Assistant United States Attorney, Greensboro, North Carolina, for
Appellee. ON BRIEF: Kevin B. Cartledge, WILSON & ISEMAN,
L.L.P., Winston-Salem, North Carolina, for Appellant. Benjamin H.
White, Jr., United States Attorney, Greensboro, North Carolina, for
Appellee.
2                      UNITED STATES v. BUTLER
                             OPINION

WILKINSON, Chief Judge:

   Defendant Donntraie Lemanes Butler appeals the district court’s
judgment sentencing him to 161 months imprisonment. Butler argues
that the court should have compelled the government to file a down-
ward departure motion pursuant to 18 U.S.C. § 3553(e) and § 5K1.1
of the United States Sentencing Guidelines in view of the substantial
assistance he rendered. Because Butler has not demonstrated that the
government’s refusal to make the motion was based on an unconstitu-
tional motive, and because that refusal was rationally related to the
legitimate government end of not rewarding defendants who threaten
the lives of other defendants while in custody, we affirm the judgment
of the district court.

                                  I.

   On May 17, 2000, Donntraie Lemanes Butler and co-defendants
Darryl Bailey, Terrell Truesdale, Renaldo Davenport, and Corey Rut-
ledge were arrested shortly after the robbery of First Charter Bank in
Kannapolis, North Carolina. At the time of his arrest, Butler waived
his Miranda rights, provided a written statement, and accompanied
officers to the location where money from the bank robbery was hid-
den.

  On May 30, 2000, a federal grand jury for the Middle District of
North Carolina indicted Butler for bank robbery, armed bank robbery,
and brandishing and discharging a firearm during and in relation to
a crime of violence, in violation of 18 U.S.C. §§ 2113(a) and 2,
2113(d) and 2, and 924(c)(1)(A)(iii) and 2. Through counsel, Butler
provided a detailed proffer to Assistant United States Attorney Lisa
Boggs ("AUSA Boggs") concerning the bank robbery. On July 6,
2000, he entered into a plea agreement with the government, pleading
guilty to the armed bank robbery and firearms counts.

   After the plea hearing, Butler’s counsel spoke to Butler at the
request of AUSA Boggs concerning co-defendant Bailey’s knowledge
of the firearms used in the bank robbery. Butler recalled specific con-
                        UNITED STATES v. BUTLER                          3
versations with Bailey during and after a basketball game on the day
before the robbery. Butler’s counsel conveyed this information to
AUSA Boggs. Then, on July 12, 2000, AUSA Boggs debriefed Butler
on the robbery. The next day AUSA Boggs again debriefed Butler
and prepared him to testify at Bailey’s trial on the firearms charge.

   The government does not contest that Butler was cooperative at all
times. Indeed, though AUSA Boggs did not end up calling Butler to
testify at Bailey’s trial, she admitted that her decision not to call But-
ler as a witness after bringing him to the courthouse bore no relation-
ship to her assessment of the truthfulness of his potential testimony.
Rather, she stated that she made a tactical decision to conclude the
government’s evidence after the testimony of co-defendants Daven-
port and Rutledge.

   Butler’s sentencing hearing was scheduled for November 2000.
Shortly before the hearing, AUSA Boggs informed Butler’s counsel
that counsel for Rutledge and the United States Marshals Service told
her that while incarcerated, Butler had threatened Rutledge’s life, as
well as the lives of Rutledge’s family and dogs.1 AUSA Boggs further
informed Butler’s counsel that in view of Butler’s recent behavior in
custody, the government would not file a substantial assistance
motion for him.

   AUSA Boggs also informed Butler’s counsel that the government
would be recommending a 50 percent reduction for Davenport and
Rutledge, the two co-defendants who testified at trial, and a 25 per-
cent reduction for co-defendant Truesdale who, like Butler, was not
called to testify at trial. In making these downward departure motions,
the government did not dispute that Truesdale had initially not told
the government that he carried both weapons used during the robbery,
or that Rutledge had lied by telling the government that Butler had
carried one of the weapons during the robbery.

  Butler’s sentencing hearing was continued until December 15,
2000. On December 7, 2000, Butler filed a motion to compel the gov-
  1
   AUSA Boggs was later informed by Davenport that Butler had also
threatened his life, and that he had overheard Butler threaten to kill Rut-
ledge’s family and dogs.
4                      UNITED STATES v. BUTLER
ernment to file a motion for downward departure pursuant to § 5K1.1
of the Sentencing Guidelines and 18 U.S.C. § 3553(e). In the alterna-
tive, Butler moved the court to downwardly depart in recognition of
his substantial assistance. Butler alleged that the government had no
rational basis for refusing to file a substantial assistance motion on his
behalf. The other defendants were sentenced on December 15, 2000,
but Butler’s sentencing hearing was continued until December 29 so
that his motion to compel could be heard.

   At the December 29 hearing, AUSA Boggs admitted that Butler
had rendered substantial assistance sufficient to warrant a § 5K1.1
motion as of the date of Bailey’s trial. She also conceded that the sole
reason the government refused to file the motion for Butler was his
conduct while incarcerated, when he threatened the lives of Rutledge
and Davenport, causing the United States Marshals Service to relocate
Butler. At the conclusion of this hearing, the district court stated that
it was unable to rule and the hearing was continued until January 5,
2001.

   At the January 5 hearing, the court found as facts that the govern-
ment admitted both that Butler had provided the government with
substantial assistance in the investigation and prosecution of this bank
robbery, and that Butler had cooperated with the government as much
as another co-defendant who received a downward departure motion.
The court further found that while four of the co-defendants were
housed in the same jail, a Deputy United States Marshal notified
AUSA Boggs that Butler had threatened Rutledge, causing the United
States Marshals Service to move Butler to another facility. Finally,
the court determined that Butler’s threatening conduct while incarcer-
ated was the sole reason for the government’s refusal to file a down-
ward departure motion for him.

   The court found that the government had not declined to file a sub-
stantial assistance motion for Butler out of an unconstitutional motive
or without a legitimate government concern. Accordingly, the court
denied Butler’s motion and sentenced him to 161 months imprison-
ment. However, in so concluding, the court expressed its reservations
about the government’s handling of this case, and voiced its hope that
this court would reverse its decision. Butler appeals.
                       UNITED STATES v. BUTLER                         5
                                   II.
   We review de novo the legal questions raised by the district court’s
application of the Sentencing Guidelines. United States v. Blake, 81
F.3d 498, 503 (4th Cir. 1996). However, we examine the district
court’s factual findings informing a sentencing decision for clear
error. Id. Thus, we will show deference to the district court’s factual
determinations underlying its conclusion that the government had a
rational basis for denying Butler a downward departure motion. But
we will look afresh at the court’s legal conclusion that those facts
constitute a rational basis for the government’s decision.
   District courts are empowered, "[u]pon motion of the Govern-
ment," to impose a sentence below the statutory minimum "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). Similarly, § 5K1.1 of the United States Sentencing Guide-
lines permits district courts to go below the minimum required under
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." Thus,
under both § 3553(e) and § 5K1.1, the district court’s authority to
depart is conditioned upon the government’s filing a "substantial
assistance" motion.
   There is a reason why the plain language of these provisions "gives
the Government a power, not a duty, to file a motion when a defen-
dant has substantially assisted." Wade v. United States, 504 U.S. 181,
185 (1992). It is so that the prosecutor will have the greatest possible
leverage in securing the cooperation of witnesses. If the government
is in control of the motion, then it will have the maximum ability to
elicit the sort of cooperation that is crucial to obtaining valid convic-
tions. Thus, unless the government’s failure to file a substantial assis-
tance motion is "based on an unconstitutional motive," such as racial
or religious animus, or is "not rationally related to any legitimate
Government end," district courts have no authority to review a prose-
cutor’s refusal to file a substantial assistance motion and grant a rem-
edy. Wade, 504 U.S. at 185-86.
  This court has followed the Supreme Court’s lead and strictly inter-
preted the Wade exceptions, holding that the decision not to make a
downward departure motion is properly within the government’s dis-
6                      UNITED STATES v. BUTLER
cretion. See, e.g., United States v. Maddox, 48 F.3d 791, 795-97 (4th
Cir. 1995); United States v. Wallace, 22 F.3d 84, 87-88 (4th Cir.
1994). Indeed, we have held that a defendant’s allegation that a simi-
larly situated co-defendant received a substantial assistance motion
does not justify the district court’s departing downward in the face of
government opposition. United States v. LeRose, 219 F.3d 335, 342-
43 (4th Cir. 2000).
                                   III.
   Butler does not suggest that the government’s refusal to file a sub-
stantial assistance motion on his behalf was based on an unconstitu-
tional motive. Rather, he contends that the government’s reason for
refusing to file the motion was not rationally related to a legitimate
government end. In particular, Butler argues that the government
admitted that its refusal was not related to the type or quality of assis-
tance he provided. Indeed, Butler submits that the government con-
ceded both that he rendered substantial assistance and that its reason
for refusing to file a downward departure motion was based upon
alleged acts of wrongdoing that occurred after he rendered substantial
assistance — namely, threats he made on the lives of co-defendants
while incarcerated.
   In addition, Butler maintains that the government made substantial
assistance motions for similarly situated co-defendants in this case.
According to Butler, the disparate treatment he received further dem-
onstrates that the government’s refusal to file a downward departure
motion for him was not rationally related to a legitimate government
end.
   There are three critical problems with Butler’s position. First, the
threats Butler issued to his co-defendants are in fact rationally related
to the type or quality of assistance he rendered. A defendant is not
rendering "substantial assistance" if he is threatening the life of
another government witness before his sentencing hearing. Indeed, by
obstructing the orderly administration of the criminal justice system,
he is engaging in the very antithesis of substantial assistance. Under
such circumstances, the government’s refusal to file a downward
departure motion is rationally related to the type or quality of assis-
tance he provided. To hold otherwise is to require the government to
reward a criminal defendant who has threatened criminal misconduct
yet again.
                        UNITED STATES v. BUTLER                          7
   Second, even if it were somehow the case that Butler’s threats were
not rationally related to the assistance he provided, that is not the rele-
vant inquiry under Wade. We are bound by Wade, not by the Eighth
Circuit’s more restrictive view that Butler has urged upon us. See
United States v. Anzalone, 148 F.3d 940, reh’g en banc granted, opin-
ion vacated, 148 F.3d 940, opinion reinstated, reh’g en banc denied,
161 F.3d 1125 (8th Cir. 1998). The question under Wade is whether
the government’s refusal to make a downward departure motion is
rationally related to any legitimate government end. See 504 U.S. at
186. And there can be no doubt that the government’s behavior in this
case passes this test. The government’s interest in deterring a defen-
dant from threatening the life of a co-defendant is not merely legiti-
mate. It is compelling. A contrary conclusion would jeopardize the
government’s ability not only to secure cooperation from witnesses
who could be intimidated into silence, but also to ensure a prison
environment free from threats on inmates’ lives.
   Finally, Butler’s allegation of disparate treatment is both factually
incorrect and legally irrelevant. Factually, Butler and his co-
defendants are not similarly situated because Butler is the only defen-
dant who is believed to have threatened someone’s life while incar-
cerated. And legally, Wade does not mandate a game of comparisons.
Rather, the correct inquiry is whether the government acted on the
basis of an unconstitutional motive or a basis not rationally related to
any legitimate government end with respect to the individual defen-
dant before the court. See LeRose, 219 F.3d at 342-43. The govern-
ment’s filing of downward departure motions for co-defendants is
relevant only insofar as it bears on that question. Butler has not made
the required showing of relevance that the government acted improp-
erly with respect to him.
  Thus, the district court properly denied Butler’s motion to compel.2
For the foregoing reasons, the judgment of the district court is
                                                             AFFIRMED.
  2
   The district court’s refusal to grant Butler’s alternative motion for
downward departure pursuant to § 5K2.0 of the Sentencing Guidelines is
not reviewable on appeal. United States v. Bayerle, 898 F.2d 28, 30-31
(4th Cir. 1990). The court’s refusal to depart downward was not based
on the mistaken view that it lacked the authority to depart. See id.
