Opinion
96 CR 996 (SAS)
January 12, 2004
Pablo Castillo, Otisville, New York, for Defendant (Pro Se)
William A. Burck, Assistant United States Attorneys, United States Attorney's Office, New York, New York, for the Government
MEMORANDUM OPINION AND ORDER
On April 11, 1997, defendant Pablo Castillo pleaded guilty to a murder conspiracy and a conspiracy to distribute crack cocaine for which he was sentenced to 144 months imprisonment. Castillo now seeks an Order from this Court compelling the Government to file a motion pursuant: to section 5K1.1 of the United States Sentencing Guidelines ("U.S.S.G.") and section 3553 of Title 18 of the United States Code. For the following reasons, this request is denied.
This is the sum and substance of Castillo's motion which he incorrectly labeled "Nunc Pro Tunc Post Sentence Motion for Reduction of Sentence."
Despite Castillo's assertions to the contrary, the Government did not enter into a cooperation agreement with him. See 12/8/03 Letter from AUSA William A. Burck. In the absence of a written cooperation agreement, the Court's review of the Government's decision not to make a motion for a downward departure pursuant to U.S.S.G. § 5K1.1 is subject "only to limited review." Specifically, where the defendant does not have an explicit agreement with the Government regarding section 5K1.1, the prosecutor's decision not to file a 5K1.1 motion is reviewable only to determine whether that decision was based on impermissible motives, such as racial or religious prejudice. "It follows that 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 . . . [A] defendant has no right to discovery or an evidentiary hearing unless he make a substantial threshold showing [of an unconstitutional motive]."
See United States v. Knights, 968 F.2d 1483, 1487 (2d Cir. 1.992);United States v. Rexach, 896 F.2d 710, 713 (2d Cir. 1990).
See Wade v. United States, 504 U.S. 181, 185-86 (1992) United States v. Brechner, 99 F.3d 96, 99 (2d Cir. 1997) ("defendants without cooperation agreements are entitled to assurance that the government's [ 5K1.1] motion is not withheld for some unconstitutional reason").
Wade, 504 U.S. at 186 (emphasis added).
Castillo has not even argued, let alone made a "threshold showing," that the Government's refusal to make a motion pursuant to U.S.S.G. § 5K1.1 was based on an unconstitutional motive. The Supreme Court has made very clear that generalized allegations of bad faith or improper motive cannot be a basis for a court to review prosecutorial decisions, or order the Government to act on a defendant's behalf. That is precisely what Castillo is asking the Court to do. Therefore, Castillo's motion for an order compelling the Government to file a motion pursuant to section 5K1.1 of the United States Sentencing Guidelines and section 3553 of Tile 18 of the United States Code is denied.
See id.
SO ORDERED.