United States District Court, D. South Carolina, Orangeburg Division
ORDER AND OPINION
MARGARET B. SEYMOUR, Senior District Judge.
Before the court is a motion by Antoine Mack ("Movant"), a prisoner proceeding pro se, to compel Respondent United States of America ("the Government") to file a motion pursuant to Federal Rules of Criminal Procedure 35(b).
I. Factual and Procedural Background
On December 20, 2011, a grand jury returned an indictment against Movant charging him with three counts of violating federal drug and firearm laws. ECF No. 2. The charges included conspiracy to violate the federal drug laws in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), (b)(1)(C) and 846 (Count 1), possession with intent to distribute crack cocaine in violation of § 841 (Count 5), and possession of a firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1) (Count 6). ECF No. 2. The Government filed an information pursuant to 21 U.S.C. § 851 on February 7, 2012, notifying Movant that he was subject to increased penalties based upon three prior criminal convictions for conspiracy to distribute crack cocaine and distribution of crack cocaine. ECF No. 34.
Pursuant to a written plea agreement, Movant pleaded guilty on April 25, 2012, to Counts 1 and 6. ECF Nos. 71, 72 and 74. Relevant to the within motion, Paragraph 12 of the plea agreement contained the following:
Provided the Defendant cooperates pursuant to the provisions of this Plea Agreement, and that cooperation is deemed by the Government as providing substantial assistance in the investigation or prosecution of another person who has committed an offense, the Government agrees to move the Court for a downward departure or reduction of sentence pursuant to United States Sentencing Guidelines § 5K1.1, Title 18, United States Code, § 3553(e), OR Federal Rule of Criminal Procedure 35(b).
ECF No. 72 at 8, ¶ 12 (emphasis in the original). Paragraph 6 of the Plea Agreement contained a breach provision: "In the event the Defendant fails to comply with any of the provisions of this Agreement... it is understood that the Government will have the right, at its sole election, to void all of its obligations under this Agreement...." Id. at 5, ¶ 6. Finally, "in exchange for the concessions made by the Government in [the Plea Agreement], " in Paragraph 15 Movant waived "the right to contest either the conviction or the sentence in any direct appeal or other postconviction action, including any proceedings under 28 U.S.C. § 2255, " with the exception of claims of ineffective assistance of counsel or prosecutorial misconduct. Id. at 11, ¶ 15.
The court held a sentencing hearing on July 24, 2012. ECF No. 84. The court accepted the Government's withdrawal of two enhancements pursuant to the plea agreement. Accordingly, the court sentenced Movant to 300 months imprisonment, consisting of mandatory minimum sentences of 240 months as to Count 1 and 60 months as to Count 6, to be served consecutively. ECF No. 86.
Notwithstanding the waiver provision in his plea agreement, on August 21, 2013, Movant filed a § 2255 motion alleging that he was sentenced in violation of Alleyne v. United States, 133 S.Ct. 2151 (2013) because the fact of his prior convictions was not submitted to the jury for determination beyond a reasonable doubt. ECF No. 98. The Government opposed the motion and moved for summary judgment. ECF Nos. 101-02. In its motion for summary judgment, the Government first noted that Movant waived his right to attack his sentence under § 2255 except on the grounds of ineffective assistance of counsel or prosecutorial misconduct. ECF No. 101 at 2. However, the bulk the of the Government's response addressed the merits of Movant's § 2255 motion. ECF No. 101 at 3-5.
While the § 2255 motion remained pending, on February 7, 2014, Movant filed a motion to compel the Government to make a motion pursuant to Federal Rule of Criminal Procedure 35(b). ECF No. 106. The Government filed a response on June 2, 2014, and Movant filed a reply on June 9, 2014. ECF Nos. 107 & 108. The Government contended that Movant was not entitled to a Rule 35(b) reduction because he breached the terms of his plea agreement when he filed a § 2255 motion in violation of the waiver provision contained in Paragraph 15. ECF No. 107 at 4 ("In light of the fact that [Movant] has clearly and expressly violated the terms of his plea agreement, the Government hereby elects to enforce paragraph 6 of the plea agreement, wherein the Government has the right, at its election, to void its obligation under the plea agreement to file a Rule 35 motion should the defendant provide substantial assistance after sentencing.").
On January 12, 2015, the court denied Movant's § 2255 motion and granted summary judgment to the Government. ECF No. 109. The court directed the Government to make a submission detailing what assistance, if any, Movant provided the Government and the Government's rationale for deeming any such assistance substantial or insubstantial for the purposes of Rule 35(b). ECF No. 111. The court further requested the Government to provide legal support for its argument that Movant's filing of a § 2255 motion negated the Government's obligation under the agreement to make a motion under Rule 35(b) if Movant did, in fact, provide substantial assistance. Id.
The Government filed the requested supplemental response on January 16, 2015. ECF No. 113. As it asserted in its previous response in opposition to Movant's motion to compel, the Government argues that Movant breached the terms of his plea agreement by filing a § 2255 motion on waived grounds and that, therefore, the Government is under no obligation to make a motion under Rule 35(b). See ECF No. 113 at 1. With regard to the court's request for information concerning Movant's assistance, the Government indicated that Movant provided information about drug dealing activities with six other individuals and "provided information on a number of other individuals who have been prosecuted in the District of South Carolina." See ECF No. 113 at 7. The Government indicated that "had [Movant] not breached his plea agreement by filing a frivolous petition pursuant to § 2255" the Government would "likely" have requested a sentence reduction by motion under Rule 35(b). Id. The Government would have "likely" recommended a four level reduction in sentence. Id. This reduction would have resulted in a shortening of Movant's sentence by approximately thirty-two percent. See id. at 7-8.
II. Legal Standard
Whether to file a Rule 35(b) motion is a matter left to the Government's discretion. Fed. R. Crim. P. 35(b); United States v. Dais, 308 F.Appx. 677, 677-78 (4th Cir. 2009); see also United States v. Dixon, 998 F.2d 228, 230 (4th Cir.1993) (stating the rule in the context of motions for downward departures under U.S.S.G. § 5K1.1). However, a court may remedy the Government's refusal to move for a reduction of sentence if: (1) the Government has obligated itself in the plea agreement to move for a reduction; or (2) the Government's refusal to move for a reduction was based on an unconstitutional motive. Wade v. United States, 504 U.S. 181, 185-86 (1992); see also Dais, 308 F.Appx. at 677-78 (adopting the Wade standard for Rule 35(b) motions). Movant nowhere alleges that the Government's refusal to make a Rule 35(b) motion is based on unconstitutional motives. The court, therefore, focuses its inquiry on (1) whether the Government obligated itself in the plea agreement to move for a reduction, and (2) if the Government does have such an obligation, whether Movant's filing of his § 2255 petition constitutes a breach of the plea agreement relieving the Government of its duty ...