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U.S. v. CASTILLO

United States District Court, S.D. New York


January 12, 2004.

UNITED STATES OF AMERICA -against- PABLO CASTILLO, Defendants

The opinion of the court was delivered by: SHIRA SCHEINDLIN, District Judge

MEMORANDUM OPINION AND ORDER

On April 11, 1997, defendant Pablo Castillo pleaded guilty to a murder conspiracy and a conspiracy to distribute crack cocaine for which he was sentenced to 144 months imprisonment. Castillo now seeks an Order from this Court compelling the Government to file a motion pursuant: to section 5K1.1 of the United States Sentencing Guidelines ("U.S.S.G.") and section 3553 of Title 18 of the United States Code.*fn1 For the following reasons, this request is denied.

  Despite Castillo's assertions to the contrary, the Government did not enter into a cooperation agreement with him. See 12/8/03 Letter from AUSA William A. Burck. In the absence of a written cooperation agreement, the Court's review of the Government's decision not to make a motion for a downward departure pursuant to U.S.S.G. § 5K1.1 is subject "only to Page 2 limited review."*fn2 Specifically, where the defendant does not have an explicit agreement with the Government regarding section 5K1.1, the prosecutor's decision not to file a 5K1.1 motion is reviewable only to determine whether that decision was based on impermissible motives, such as racial or religious prejudice.*fn3 "It follows that a claim that a defendant merely provided substantial assistance will not entitle a defendant to a remedy or even to discovery or an evidentiary hearing . . . [A] defendant has no right to discovery or an evidentiary hearing unless he make a substantial threshold showing [of an unconstitutional motive]."*fn4

  Castillo has not even argued, let alone made a "threshold showing," that the Government's refusal to make a motion pursuant to U.S.S.G. § 5K1.1 was based on an unconstitutional motive. The Supreme Court has made very clear that generalized allegations of bad faith or improper motive cannot be a basis for a court to review prosecutorial decisions, Page 3 or order the Government to act on a defendant's behalf.*fn5 That is precisely what Castillo is asking the Court to do. Therefore, Castillo's motion for an order compelling the Government to file a motion pursuant to section 5K1.1 of the United States Sentencing Guidelines and section 3553 of Tile 18 of the United States Code is denied.

  SO ORDERED.


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