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Dorsey: Failure to File 5K1.1 can be unconstitutional

By Tim Cone

In U.S. v. Dorsey, No. 06-16698 (Jan. 14, 2008), in a case of first impression in the Circuit, the Court held that the government?s alleged refusal to file a once-promised § 5K1.1 motion for reduction of sentence because the defendant elected to go to trial instead of pleading guilty could constitute an "unconstitutional motive," and could therefore be the basis for a district court?s downward departure based on the defendant?s cooperation, independent of a government motion.The Court stated that unconstitutional vindictiveness could be established either by showing facts that gave rise to a presumption of vindictiveness, or by offering evidence of a prosecutor?s actual vindictiveness. Here, the government stated that it did not file a 5K1.1 because Dorsey?s assistance was not substantial and because he started dealing drugs, again...continue to full post

Full post as published by Defense Newsletter Blog on January 15, 2008 (boomark / email).