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
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
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,
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.