United States District Court, District of South Carolina, Columbia Division
February 19, 2015
United States of America,
Kevin Richardson, Defendant.
OPINION AND ORDER
CAMERON McGOWAN CURRIE SENIOR UNITED STATES DISTRICT JUDGE
This matter is before the court on Defendant’s Motion for Reconsideration. ECF No. 569. On February 4, 2015, the Government responded in opposition. ECF No. 575. No further filing from Defendant has been received.
As noted in the court’s previous order denying Defendant’s motion to compel, 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.
Defendant argues in his motion for reconsideration that he was not provided sufficient time to reply to the Government’s response to his previously-filed motion to compel. The court has, therefore, reconsidered Defendant’s motion. However, even on reconsideration of all of Defendant’s filings, his arguments as to breach of plea agreement and bad faith fail. Defendant has failed to show that he was promised a Rule 35 motion would be filed based on cooperation provided prior to sentencing and, in fact, such cooperation was credited to him at sentencing. In addition, the Government has rebutted Defendant’s allegations of bad faith in failing to file a Rule 35 motion, and Defendant has failed to make a showing of bad faith warranting a hearing. Therefore, Defendant’s motion for reconsideration is granted, and Defendant’s motion to compel is again denied.
IT IS SO ORDERED.