Lawrence E. Lupien v. Harold W. Clarke

1 The Honorable Donald E. O’Brien, United States District Judge for the
Northern District of Iowa.
United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 04-2776
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the Northern
* District of Iowa.
Cinda Clare Mullins, *
*
Appellant. *
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Submitted: December 13, 2004
Filed: March 3, 2005
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Before MORRIS SHEPPARD ARNOLD, BEAM, and RILEY, Circuit Judges.
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RILEY, Circuit Judge.
Cinda Clare Mullins (Mullins) pled guilty, without a plea agreement, to
conspiracy to manufacture and distribute 500 grams or more of methamphetamine
within 1,000 feet of a protected location, in violation of 21 U.S.C. §§ 841(a)(1),
841(b)(1)(A)(viii), 846, and 860(a). Applying the United States Sentencing
Guidelines (Guidelines), the district court 1 determined Mullins’s sentencing range
was 78 to 97 months in prison, based on Mullins’s criminal history category of III and

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a total offense level of 26. However, the district court sentenced Mullins to 120
months in prison, the statutory mandatory minimum sentence under 21 U.S.C. §
841(b)(1)(A). Mullins appeals, arguing the district court abused its discretion by
denying Mullins’s motion for an evidentiary hearing on her motion to compel the
government to make a substantial assistance departure motion. We affirm.
I. BACKGROUND
At her sentencing hearing, Mullins testified she gave the government names;
showed officers businesses, houses, and people associated with illegal narcotics; and
“did everything I could possibly do.” Mullins further testified she repeatedly
telephoned officers, but they never returned her phone calls. She believes officers
used her information to apprehend some people and used her information in their
cases. However, Mullins never testified before a grand jury, never testified in any
contested sentencing hearings, and never purchased drugs for the government.
Mullins is unable to name any person the government charged or held using her
information. Mullins contends the government acted irrationally and in bad faith,
because she took every affirmative step she could think of to assist the government.
The government, relying on its discretion, maintains it was under no duty to move for
a downward departure because Mullins did not provide substantial assistance.
II. DISCUSSION
Before a district court may depart below a statutory mandatory minimum
sentence to reflect a defendant’s substantial assistance, the government first must
make a motion requesting the court impose a sentence below the mandatory
minimum. Melendez v. United States, 518 U.S. 120, 125-26 (1996) (citing 18 U.S.C.
§ 3553(e)). Both 18 U.S.C. § 3553(e) (“[u]pon motion of the government”) and
section 5K1.1 of the Guidelines (same) give the government the power, but not the
duty, to make a substantial assistance motion. Wade v. United States, 504 U.S. 181,
185 (1992). “[T]he government has no duty to make [a substantial assistance] motion
unless it has entered into a plea agreement with the defendant that creates such a

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duty.” United States v. Wolf, 270 F.3d 1188, 1190 (8th Cir. 2001). Here, Mullins
pled guilty without a plea agreement, and the government never promised it would
move for a downward departure. Therefore, the government retained its discretion
to decline to make a substantial assistance motion.
The government’s discretion to refuse to make a substantial assistance motion
“is subject to constitutional limitations that district courts can enforce.” Wade, 504
U.S. at 185. A district court may review the government’s refusal to make a
substantial assistance motion under section 3553(e) or section 5K1.1, if such refusal
(1) was prompted by an unconstitutional motive, such as the defendant’s race or
religion; or (2) was not rationally related to a legitimate government interest. Id. at
185-87. To obtain an evidentiary hearing, a defendant must make a “substantial
threshold showing” that the government’s refusal to make a substantial assistance
motion was premised on an improper motive. Id. at 186. “In the absence of such a
showing, a defendant is not entitled to any remedy or even an evidentiary hearing.”
United States v. Hardy, 325 F.3d 994, 996 (8th Cir. 2003) (citations omitted).
Mullins’s testimony at her sentencing hearing merely demonstrates (1) she
provided information concerning drug activities; (2) she was willing to provide
continued assistance; and (3) she disagrees with the government’s assessment of the
extent to which her information assisted the government. Even crediting her version
of assistance, Mullins’s assertions do not support any inference the government acted
unconstitutionally or irrationally in refusing to move for a downward departure based
on substantial assistance. A defendant’s bare assertions of assistance do not
constitute a “substantial threshold showing” of improper conduct by the government.
See Wade, 504 U.S. at 186 (holding neither “a claim that a defendant merely provided
substantial assistance” nor “additional but generalized allegations of improper
motive” is sufficient to merit an evidentiary hearing). Because Mullins failed to make

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2We note Mullins did not challenge her sentence based on the Supreme Court’s
recent decision in United States v. Booker, 125 S. Ct. 738, 756-57 (2005) (holding
mandatory application of the Guidelines is unconstitutional, and the Guidelines are
now “effectively advisory”). Therefore, Mullins has waived any Sixth Amendment
argument on appeal. Even if Mullins had preserved a Booker challenge on appeal,
the holdings in Booker are of no avail to Mullins, because the district court imposed
Mullins’s sentence based on a statutorily mandated minimum sentence, and not on
sentencing enhancements. See United States v. Vieth, No. 04-1451, 2005 WL
284724, at *4 (8th Cir. Feb. 8, 2005) (holding defendant was not entitled to
resentencing because his “sentence was not determined based upon an application of
the federal sentencing guidelines, but rather based upon the mandatory minimum
sentence set forth in the governing criminal statute”).
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a “substantial threshold showing,” the district court correctly concluded it lacked
authority to conduct an evidentiary hearing.
III. CONCLUSION
We affirm the district court’s judgment.2
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