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United States v. Richardson

United States District Court, District of South Carolina, Columbia Division

December 16, 2014

United States of America,
v.
Kevin Richardson, Defendant.

OPINION AND ORDER

CAMERON McGOWAN CURRIE SENIOR UNITED STATES DISTRICT JUDGE

This matter is before the court on Defendant’s Motion to compel the Government to file a Rule 35 motion, ECF No. 550, and Defendant’s motion to supplement/amend, ECF No. 553. The Government has responded in opposition to both motions. ECF Nos. 558 & 561.

Under Rule 35(b), the decision to move for reduction of sentence is solely in the discretion of the Government. The district court is without authority to compel such a motion unless Defendant can show that his cooperation is complete, and that the Government breached the plea agreement or that the Government’s failure to file resulted from an unconstitutional motive or was not rationally related to a legitimate government goal. Wade v. United States, 504 U.S. 181, 185-86 (1992); United States v. Butler, 272 F.3d 683, 686 (4th Cir. 2001). Defendant must make a “substantial threshold showing, ” Wade, 504 U.S. at 186, of either of these elements which should constitute more than a recitation of the assistance provided.

The plea agreement between the parties provided that the Government would, provided that there was substantial assistance, ask the court to reduce Defendant’s sentence pursuant to “United States Sentencing Guidelines, §5K1.1, Title 18, United States Code, § 3553(e), OR Federal Rule of Criminal Procedure 35(b).” Plea Agreement at ¶ 12, ECF No. 260 (emphasis in original). The Government argues that it complied with its contractual obligations by moving for a downward departure at sentencing.

Defendant has not provided any evidence of a breach of the plea agreement by the Government, nor has he made a “substantial threshold showing” relating to either element noted above. Therefore, for this reason and for the reason argued by the Government, Defendant’s motions are denied.

IT IS SO ORDERED.


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