U. S. V. DORSEY, 06-16698, January 9, 2009.
The defendant was convicted following a jury trial of a drug offense. At his sentencing he moved to compel the government to file a 5K1.l motion because after his arrest he immediately cooperated with the police and his cooperation led to his drug supplier’s arrest and the seizure of a quarter kilogram of cocaine. Dorsey argued that the government impermissibly refused to file the motion once he decided to go trial. The government responded that it “never told Dorsey he had earned a 5K1.1 departure but rather told him that the circumstances surrounding his minimal amount of cooperation would be considered if he cooperated fully and completely.” At sentencing the government stated that Dorsey “chose not to continue with cooperation. He chose to go to trial.” The Eleventh Circuit found that Dorsey was not able to show that the government’s refusal to file a 5K1.1 motion was an unconstitutional motive under Wade v. United States, 504 U.S. 181 (1992). Dorsey refused to accept the government’s condition that he enter a guilty plea as part of its cooperation agreement. He was free to reject the offer but the government’s refusal to file the 5K1.1 motion was constitutionally permissible.
