                                                                     [PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT                   FILED
                          ________________________        U.S. COURT OF APPEALS
                                                            ELEVENTH CIRCUIT
                                                               AUGUST 31, 2007
                               No. 06-16698                  THOMAS K. KAHN
                           Non-Argument Calendar                 CLERK
                         ________________________

                    D. C. Docket No. 05-00389-CR-T-23TBM

UNITED STATES OF AMERICA,


                                                              Plaintiff-Appellee,

                                     versus

JAMES DORSEY,
a.k.a. Mountain Man,
SANDRA AVERY,
a.k.a. Sandra Dorsey,


                                                          Defendants-Appellants.

                         ________________________

                  Appeals from the United States District Court
                       for the Middle District of Florida
                        _________________________

                               (August 31, 2007)

Before TJOFLAT, BIRCH and WILSON, Circuit Judges.

WILSON, Circuit Judge:
       James Dorsey (“Dorsey”) and Sandra Avery (“Avery”) appeal their

convictions for drug conspiracy and drug distribution charges after a jury trial.

They both contend that pretrial motions to suppress evidence seized from their

residence and introduced at their trial should have been granted because the

affidavits supporting the search warrants contained false statements and lacked

probable cause. After careful review, we find that there was sufficient

corroborating information in the affidavits to support a finding of probable cause,

and affirm their convictions without further discussion.

       Dorsey also appeals his sentence. He argues that the government refused to

file a motion to reduce his sentence pursuant to United States Sentencing Guideline

§ 5K1.1 to punish him for exercising his Sixth Amendment right to a jury trial,

thereby denying him due process of law. We have not previously considered

whether the government’s refusal to file a § 5K1.1 motion because the defendant

exercised his right to a jury trial constitutes an unconstitutional motive. We now

hold that it does, but we are unable to determine whether that is what took place in

this case because of insufficient fact-finding at the district court. Therefore, we

vacate Dorsey’s sentence and remand this case for a new sentencing hearing.1

                                     BACKGROUND


       1
          Dorsey also argues that his sentence was otherwise unreasonable. Since we vacate the
sentence and remand for resentencing, we need not reach this claim.

                                              2
      At sentencing, the district court determined that Dorsey’s advisory

Guidelines range was 168 to 210 months. Dorsey then moved the court to compel

the government to file a motion pursuant to U.S.S.G. § 5K1.1, because after his

arrest he immediately cooperated with the police. After his arrest, Dorsey called

his drug supplier, Steve Washington, and left a voice message and the return

telephone number of a detective with the Sarasota Police Department on

Washington’s cellular phone. The next morning, the detective spoke to

Washington and arranged to purchase a quarter kilogram of cocaine. When

Washington arrived to deliver the cocaine, the authorities arrested him and seized

the cocaine.

      Dorsey asserted that the government had earlier informed him that he could

earn a § 5K1.1 departure because of his cooperation if he pled guilty. Once he

decided to go to trial, the government did not file a § 5K1.1 motion. Dorsey

argued that this constituted an impermissible exercise of the government’s

discretion in refusing to file a § 5K1.1 motion. The government responded that it

had never told Dorsey that he had earned a § 5K1.1 departure; rather, he was told

that the circumstances surrounding the minimal amount of cooperation that he

provided would be considered if he cooperated fully and completely. At

sentencing, the government stated that Dorsey “chose not to continue with



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cooperation. He chose to go to trial.” Dorsey responded that irrespective of

whether his cooperation was minimal or not, it was obvious that his cooperation

was complete, and the government’s refusal to move for a § 5K1.1 departure based

on his decision to go to trial was an unconstitutional motive. Without explanation,

the district court denied Dorsey’s motion.

                                  DISCUSSION

      We review de novo whether the district court has the authority to depart

downward from the guideline range under § 5K1.1 in the absence of a motion by

the government. See United States v. Forney, 9 F.3d 1492, 1498 (11th Cir. 1993).

      Section 5K1.1 of the Sentencing Guidelines provides that “[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, the

court may depart from the guidelines.” U.S.S.G. § 5K1.1. We have stated that the

government has “‘a power, not a duty, to file a motion when a defendant has

substantially assisted.’” Forney, 9 F.3d at 1500 (quoting Wade v. United States,

504 U.S. 181, 185, 112 S. Ct. 1840, 1843, 118 L. Ed. 2d 524 (1992)). Therefore, a

district court cannot grant a downward departure for substantial assistance absent a

motion by the government. Id. at 1501. However, the United States Supreme

Court held that “federal district courts have authority to review a prosecutor’s



                                             4
refusal to file a substantial-assistance motion and to grant a remedy if they find that

the refusal was based on an unconstitutional motive,” like “race or religion.”

Wade, 504 U.S. at 185-86, 112 S. Ct. at 1843-44. A defendant who merely claims

to have provided substantial assistance or who makes only generalized allegations

of an improper motive is not entitled to a remedy or even to an evidentiary hearing.

Id. at 186, 112 S. Ct. at 1844. Thus, judicial review is appropriate only “when

there is an allegation and a substantial showing that the prosecution refused to file

a substantial assistance motion because of a constitutionally impermissible

motivation.” Forney, 9 F.3d at 1502.

      We have not previously decided whether the government’s refusal to file a §

5K1.1 motion to punish a defendant for exercising his constitutional right to a jury

trial is an unconstitutional motive under Wade, but the Third and Ninth Circuits

have. They both held that refusing to file a § 5K1.1 to punish a defendant for

exercising this right is an unconstitutional motive, and the Tenth Circuit has also

said so, albeit in dicta. United States v. Khoury, 62 F.3d 1138, 1141 (9th Cir.

1995); United States v. Paramo, 998 F.2d 1212, 1219-20 (3d Cir. 1993); United

States v. Easter, 981 F.2d 1549, 1555 (10th Cir. 1992). While the government may

refuse to file a § 5K1.1 for many reasons, and it is within the government’s

discretion to do so, “[t]o punish a person because he has done what the law plainly



                                           5
allows him to do is a due process violation of the most basic sort.” Bordenkircher

v. Hayes, 434 U.S. 357, 363, 98 S. Ct. 663, 668, 54 L. Ed. 2d 604 (1978).

Accordingly, we agree with our sister circuits and hold that refusing to file a §

5K1.1 motion in retribution for exercising the Sixth Amendment right to a trial by

jury is an unconstitutional motive under Wade.

      The district court denied Dorsey’s motion without explanation. Therefore,

we cannot be certain that the district court believed that it had the authority to

depart downward absent a motion by the government. Since we hold the district

court has such authority, we vacate Dorsey’s sentence and remand the case back to

the district court to determine whether Dorsey can establish a “substantial

showing” that the government’s refusal to file a substantial assistance motion was

based on an unconstitutional motive.

      On remand, Dorsey has the burden of proving prosecutorial vindictiveness.

We have found that “a superseding indictment adding new charges that increase

the potential penalty would violate due process if the prosecutor obtained the new

charges out of vindictiveness[, and] [v]indictiveness in this context means the

desire to punish a person for exercising his rights.” United States v. Barner, 441

F.3d 1310, 1315 (11th Cir. 2006) (citation omitted). The same reasoning applies to

a prosecutorial decision not to file a § 5K1.1 motion. See Paramo, 998 F.2d at



                                            6
1220 (finding that the defendant must prove prosecutorial vindictiveness in a

refusal to file a § 5K1.1 claim); see also United States v. Murphy, 65 F.3d 758, 762

(9th Cir. 1995) (same).

      A defendant may establish vindictiveness by either showing facts that give

rise to a presumption of vindictiveness or by offering evidence of a prosecutor’s

actual vindictiveness. Paramo, 998 F.2d at 1220. A presumption of vindictiveness

“may operate in the absence of any proof of an improper motiv[e;]” therefore, the

presumption only applies when the factual circumstances indicate a “reasonable

likelihood of vindictiveness.” United States v. Goodwin, 457 U.S. 368, 373, 102 S.

Ct. 2485, 2488, 73 L. Ed. 2d 74 (1982). If a defendant successfully establishes a

reasonable likelihood of vindictiveness, the government can overcome the

presumption with objective evidence justifying its conduct. See id. at 374, 102 S.

Ct. at 2489. In this case, the government stated that it did not file a § 5K1.1 motion

because Dorsey’s assistance was not substantial and that he started dealing drugs

again. Therefore, even if a presumption of vindictiveness could apply in this case,

the government has proffered legitimate reasons for its failure to file a § 5K1.1

motion. Therefore, Dorsey will have to prove actual vindictiveness. See Paramo,

998 F.2d at 1221. “This showing is, of course, exceedingly difficult to make.”

United States v. Meyer, 810 F.2d 1242, 1245 (D.C. Cir. 1987). To prove actual



                                          7
vindictiveness, Dorsey must present objective evidence that the government acted

solely to punish him for exercising his legal rights, and that the reasons proffered

by the government are pretextual. Id.; Paramo, 998 F.2d at 1221.

      Dorsey cannot establish prosecutorial vindictiveness by submitting evidence

that the government merely carried out its threat not to file a § 5K1.1 motion that

was made during plea negations. See Bordenkircher, 434 U.S. at 363-65, 98 S. Ct.

at 668-69. In Bordenkircher, the Supreme Court stated that “in the ‘give-and-take’

of plea bargaining, there is no such element of punishment or retaliation so long as

the accused is free to accept or reject the prosecution’s offer.” Id. at 363, 98 S. Ct.

at 668. While Bordenkircher involved a prosecutor’s decision to seek heightened

charges, the same reasoning applies to a prosecution’s decision not to file a §

5K1.1 motion. Paramo, 998 F.3d at 1221. The record is not clear in this case

whether the government threatened to withhold a § 5K1.1 motion during the “give-

and-take” of its plea negotiations with Dorsey. As long as Dorsey was free to

accept or reject the government’s offer, the government did not violate Dorsey’s

rights when it eventually carried out its threat not to file the § 5K1.1 motion. We

leave these issues to the district court to decide after further fact-finding at a new

sentencing hearing.

      AFFIRMED IN PART, VACATED AND REMANDED IN PART



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