USA v. Darnell C. Billings, 07-2307. 

Defendant Darnell Billings received a statutory minimum sentence of life imprisonment 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 statutory minimum.

Billings also claims the government should 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 withholding the substantial assistance motion and because it had no duty to inform Billings about the negative consequences of his incarceration. We affirm.

A. The Government Did Not Improperly Withhold a Substantial Assistance Motion

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 substantial-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).


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.


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 comments are evidence that the government withheld a substantial assistance motion because of Billings's numerous 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.").


The new prosecutor explained, “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 saddest part about the case in my opinion, Your Honor.”


While the new prosecutor might have been 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.


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 information to helping themselves with the government.

In the end, it was not that (Billings) did not try to help the government. 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 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 unsuccessful 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 Government [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 statutory minimum in certain situations even if the government does not support such a sentence).

We cannot second-guess the government's decision to withhold a substantial 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 Billings of the Difficulty in Providing Substantial Assistance

Here, (Billings) 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." United States v. King, 62 F.3d 891, 895 (7th Cir. 1995).

We do not see how King benefits Billings, as that decision also states that "the failure to inform [the defendant] of the effect of his incarceration is not the type of constitutional violation that, under Wade, would allow us to review 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).


AFFIRMED.

 

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