WINTER, Circuit Judge:
Lancelotte Kaye appeals from a sentence imposed by Judge Mishler after Kaye pleaded guilty to possession of firearms with obliterated serial numbers that had been shipped in interstate or foreign commerce in violation of 18 U.S.C. §§ 922(k), 924(a)(1)(B) and 3551 et seq. This appeal involves an unusual set of facts. In the district court, the Assistant United States Attorney (“AUSA”) declined to move for a downward departure pursuant to Guidelines Section 5K1.1, apparently because Kaye’s cooperation with federal authorities failed to produce a federal prosecution and Kaye had received a substantial benefit in the form of a reduced sentence on a state charge based on his assistance to local law enforcement authorities. However, the AUSA invited the court to consider a downward departure under Section 5K2.0 based upon Kaye’s assistance to local authorities. The district court declined to consider a departure on the ground that it had no authority to depart based on such assistance absent a motion by the government under Section 5K1.1. On appeal, the government asks us to affirm. We do so.
Kaye was arrested on April 13, 1993 by law enforcement agents from the Nassau County Police Department (“Nassau P.D.”) and from the Bureau of Alcohol, Tobacco and Firearms (“BATF”), who were participating in a joint undercover investigation. Kaye was indicted on drug charges in the County Court of Nassau County and on federal weapons charges in the Eastern District of New York.
Kaye entered into cooperation agreements with the Nassau County District Attorney [242]*242and with the BATF. Pursuant to these agreements, Kaye covertly recorded conversations with various individuals, apparently at some personal risk. As a result of Kaye’s cooperation, two individuals were arrested by the Nassau P.D., one of whom pleaded guilty to a Class A misdemeanor. In Nassau County Court, Kaye pleaded guilty to a Class E felony and was sentenced, inter alia, to time served or 25 days in jail.
Kaye’s assistance to federal authorities included the tape-recording of phone conversations with the individual who had sold him weapons. Kaye also met with that individual and provided the BATF with his first name, telephone number, and home address. Nevertheless, no other arrests were made.
In the district court, Kaye pleaded guilty to possession of firearms with obliterated serial numbers. In connection with Kaye’s sentencing, the government declined to move for a downward departure pursuant to U.S.S.G. § 5K1.1, which allows a sentencing court to depart from the Guidelines “[u]pon motion of the government stating that the defendant has provided substantial assistance in the investigation or prosecution of another person who has committed an offense.” In a letter to the court, the AUSA acknowledged that Kaye had cooperated in Nassau County and stated that Kaye had received the benefit of a light sentence in return. The letter went on to note that “Kaye also attempted to cooperate federally.” However, the AUSA continued, “the fact remains that the [federal] effort was ultimately unsuccessful. As such, the government cannot certify in connection with the federal prosecution that, ‘the defendant has provided substantial assistance in the investigation or prosecution of another person who has committed an offense....’”
However, the AUSA suggested the possibility of a downward departure pursuant to U.S.S.G. § 5K2.0, which authorizes a sentencing court to depart from the Guidelines where “there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines.” The AUSA’s letter stated, “The cooperation issue in this case is nonetheless an unusual one,” and “if Kaye asks the Court to consider guidelines section 5K2.0 in formulating and in imposing sentence in this case, ... we would state no position with respect to that request.” Kaye then requested a downward departure, but the district court ruled that it had no authority to consider Kaye’s assistance to local authorities under Section 5K2.0, stating: “I know he cooperated and as a matter of fact his cooperation was of so[me] benefit, but absent a motion by the United States government under 5K1.1, I have no authority [to downwardly depart].” It then sentenced Kaye to 12 months imprisonment, three years supervised release and a $50 special assessment.
On appeal, the government has abandoned its position that a downward departure under Section 5K2.0 is permissible based on Kaye’s cooperation with local authorities. It reasons that Section 5K1.1 encompasses cooperation with local as well as federal authorities and that a motion under that Section is the sole means by which a departure based on any assistance to law enforcement authorities may be granted. Because a decision not to move for such a departure is essentially un-reviewable, the government argues, we must affirm Kaye’s sentence.
We agree with the government that the effect of cooperation with local authorities is governed by Section 5K1.1. The plain language of the section encompasses all law enforcement authorities whatever governmental unit they represent, and nothing in the Commentary even remotely suggests that the all-inclusive language was not deliberate. Therefore, a motion by the government under Section 5K1.1 is necessary before a court may depart from the Guidelines based on assistance to state or local, as well as federal, authorities. See United States v. Love, 985 F.2d 732, 734 (3d Cir.1993); see also United States v. Emery, 34 F.3d 911, 913 (9th Cir.1994).
In reviewing a prosecutor’s decision whether to make a motion under Section 5K1.1, we differentiate between defendants who have cooperated pursuant to a plea agreement and those who have not. See United States v. Leonard, 50 F.3d 1152, 1157 [243]*243(2d Cir.1995); United States v. Knights, 968 F.2d 1483, 1486 (2d Cir.1992). Those defendants who have signed agreements in which the government promised to make a 5K1.1 motion in exchange for substantial assistance are entitled to a “more searching” review of a claim that the government should have, but did not, make such a motion. Leonard, 50 F.3d at 1157. Under those circumstances, we hold the government to a standard of good faith. Id.; United States v. Agu, 949 F.2d 63, 67 (2d Cir.1991), cert. denied, 504 U.S. 942, 112 S.Ct. 2279, 119 L.Ed.2d 205 (1992); United States v. Khan, 920 F.2d 1100, 1105-06 (2d Cir.1990), cert. denied, 499 U.S. 969, 111 S.Ct.
Free access — add to your briefcase to read the full text and ask questions with AI
WINTER, Circuit Judge:
Lancelotte Kaye appeals from a sentence imposed by Judge Mishler after Kaye pleaded guilty to possession of firearms with obliterated serial numbers that had been shipped in interstate or foreign commerce in violation of 18 U.S.C. §§ 922(k), 924(a)(1)(B) and 3551 et seq. This appeal involves an unusual set of facts. In the district court, the Assistant United States Attorney (“AUSA”) declined to move for a downward departure pursuant to Guidelines Section 5K1.1, apparently because Kaye’s cooperation with federal authorities failed to produce a federal prosecution and Kaye had received a substantial benefit in the form of a reduced sentence on a state charge based on his assistance to local law enforcement authorities. However, the AUSA invited the court to consider a downward departure under Section 5K2.0 based upon Kaye’s assistance to local authorities. The district court declined to consider a departure on the ground that it had no authority to depart based on such assistance absent a motion by the government under Section 5K1.1. On appeal, the government asks us to affirm. We do so.
Kaye was arrested on April 13, 1993 by law enforcement agents from the Nassau County Police Department (“Nassau P.D.”) and from the Bureau of Alcohol, Tobacco and Firearms (“BATF”), who were participating in a joint undercover investigation. Kaye was indicted on drug charges in the County Court of Nassau County and on federal weapons charges in the Eastern District of New York.
Kaye entered into cooperation agreements with the Nassau County District Attorney [242]*242and with the BATF. Pursuant to these agreements, Kaye covertly recorded conversations with various individuals, apparently at some personal risk. As a result of Kaye’s cooperation, two individuals were arrested by the Nassau P.D., one of whom pleaded guilty to a Class A misdemeanor. In Nassau County Court, Kaye pleaded guilty to a Class E felony and was sentenced, inter alia, to time served or 25 days in jail.
Kaye’s assistance to federal authorities included the tape-recording of phone conversations with the individual who had sold him weapons. Kaye also met with that individual and provided the BATF with his first name, telephone number, and home address. Nevertheless, no other arrests were made.
In the district court, Kaye pleaded guilty to possession of firearms with obliterated serial numbers. In connection with Kaye’s sentencing, the government declined to move for a downward departure pursuant to U.S.S.G. § 5K1.1, which allows a sentencing court to depart from the Guidelines “[u]pon motion of the government stating that the defendant has provided substantial assistance in the investigation or prosecution of another person who has committed an offense.” In a letter to the court, the AUSA acknowledged that Kaye had cooperated in Nassau County and stated that Kaye had received the benefit of a light sentence in return. The letter went on to note that “Kaye also attempted to cooperate federally.” However, the AUSA continued, “the fact remains that the [federal] effort was ultimately unsuccessful. As such, the government cannot certify in connection with the federal prosecution that, ‘the defendant has provided substantial assistance in the investigation or prosecution of another person who has committed an offense....’”
However, the AUSA suggested the possibility of a downward departure pursuant to U.S.S.G. § 5K2.0, which authorizes a sentencing court to depart from the Guidelines where “there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines.” The AUSA’s letter stated, “The cooperation issue in this case is nonetheless an unusual one,” and “if Kaye asks the Court to consider guidelines section 5K2.0 in formulating and in imposing sentence in this case, ... we would state no position with respect to that request.” Kaye then requested a downward departure, but the district court ruled that it had no authority to consider Kaye’s assistance to local authorities under Section 5K2.0, stating: “I know he cooperated and as a matter of fact his cooperation was of so[me] benefit, but absent a motion by the United States government under 5K1.1, I have no authority [to downwardly depart].” It then sentenced Kaye to 12 months imprisonment, three years supervised release and a $50 special assessment.
On appeal, the government has abandoned its position that a downward departure under Section 5K2.0 is permissible based on Kaye’s cooperation with local authorities. It reasons that Section 5K1.1 encompasses cooperation with local as well as federal authorities and that a motion under that Section is the sole means by which a departure based on any assistance to law enforcement authorities may be granted. Because a decision not to move for such a departure is essentially un-reviewable, the government argues, we must affirm Kaye’s sentence.
We agree with the government that the effect of cooperation with local authorities is governed by Section 5K1.1. The plain language of the section encompasses all law enforcement authorities whatever governmental unit they represent, and nothing in the Commentary even remotely suggests that the all-inclusive language was not deliberate. Therefore, a motion by the government under Section 5K1.1 is necessary before a court may depart from the Guidelines based on assistance to state or local, as well as federal, authorities. See United States v. Love, 985 F.2d 732, 734 (3d Cir.1993); see also United States v. Emery, 34 F.3d 911, 913 (9th Cir.1994).
In reviewing a prosecutor’s decision whether to make a motion under Section 5K1.1, we differentiate between defendants who have cooperated pursuant to a plea agreement and those who have not. See United States v. Leonard, 50 F.3d 1152, 1157 [243]*243(2d Cir.1995); United States v. Knights, 968 F.2d 1483, 1486 (2d Cir.1992). Those defendants who have signed agreements in which the government promised to make a 5K1.1 motion in exchange for substantial assistance are entitled to a “more searching” review of a claim that the government should have, but did not, make such a motion. Leonard, 50 F.3d at 1157. Under those circumstances, we hold the government to a standard of good faith. Id.; United States v. Agu, 949 F.2d 63, 67 (2d Cir.1991), cert. denied, 504 U.S. 942, 112 S.Ct. 2279, 119 L.Ed.2d 205 (1992); United States v. Khan, 920 F.2d 1100, 1105-06 (2d Cir.1990), cert. denied, 499 U.S. 969, 111 S.Ct. 1606, 113 L.Ed.2d 669 (2d Cir.1991). Where no such plea agreement was signed, however, our review is limited to whether the government’s decision not to make a 5K1.1 motion was based on an unconstitutional motive. See Wade v. United States, 504 U.S. 181, 185-86, 112 S.Ct. 1840, 1843-44, 118 L.Ed.2d 524 (1992); Leonard, 50 F.3d at 1157.1 Kaye signed a document labelled “Informant Agreement” in which he agreed to cooperate with the BATF, but neither the BATF nor the AUSA made any reciprocal promise relative to his sentence. Our review of the government’s actions is thus governed by the Supreme Court’s holding in Wade, which concerned a defendant who cooperated without the benefit of a plea agreement.2
In Wade, the Supreme Court held that a court may not inquire into the government’s failure to make a motion unless there is a “substantial threshold showing” of an “unconstitutional motive,” such as the race or religion of the defendant, or a lack of any rational relationship to a legitimate governmental goal. Wade, 504 U.S. at 185-86, 112 S.Ct. at 1843-44. Here, Kaye has made no showing of an unconstitutional motive. Nor can we say that the government’s failure to move under Section 5K1.1 was not rationally related to a legitimate governmental purpose, namely not to overcompensate Kaye, who had already reaped the benefit of a lenient state sentence based on his cooperation with local authorities.
The only remaining question is whether a district court has authority to depart downward under Section 5K2.0 when invited to do so by the government notwithstanding the fact that, absent such an invitation, consideration of a downward departure would be beyond the court’s authority. We believe that the district court does not have such authority. The Guidelines are mandatory,3 see United States v. DeRiggi, 45 F.3d 713, 716 (2d Cir.1995), and the court’s consideration of a downward departure, even if invited by the government, would necessarily be governed by their terms. Under the Guidelines, a downward departure under Section 5K2.0 based on assistance to local authorities would be impermissible because the very existence of Section 5K1.1 dooms any contention that Kaye’s assistance was a [244]*244“mitigating circumstance ... not adequately taken into consideration by the Sentencing Commission in formulating the Guidelines.”
We therefore affirm.