Government Did Not Act Unconstitutionally or in Bad Faith by Refusing to Make “Substantial Assistance” Motion Under § 3553(e).

In United States v. Trimm, No. 20-2264 (2d Cir. June 2, 2021) (per curiam) (Livingston, Jacobs, and Menashi), the Second Circuit held that the district court erred in concluding that the government’s refusal to make a “substantial assistance” motion under 18 U.S.C. § 3553(e) was unconstitutional and motivated by bad faith. Accordingly, the Court vacated the defendant’s sentence and, to preserve the appearance of justice, remanded for resentencing before a different judge.

Pursuant to a plea agreement, Trimm pleaded guilty to conspiracy to use a minor to produce child pornography. Trimm also agreed to assist the government in securing the conviction of her co-conspirator. The agreement vested in the government sole discretion to determine whether and how to credit Trimm’s cooperation, including whether to file a “substantial assistance” motion under U.S.S.G. § 5K1.1, § 3553(e), or both.

After evaluating Trimm’s assistance, the government decided to make a motion under § 5K1.1 but not under § 3553(e). The district court held that the government had acted for an unconstitutional reason and in bad faith by refusing to make a motion under § 3553(e), and imposed a 60-month prison sentence, well below the applicable 15-year mandatory minimum.

The Circuit reversed. It held that, absent some other showing of unconstitutionality, it is not unconstitutional for the government to conclude that a defendant’s assistance is worthy of a § 5K1.1 motion but no more. The Court also held that the government did not act in bad faith. Where an agreement reserves to the government the sole discretion to determine how to value the cooperation of a defendant, the Circuit held, the government need not express dissatisfaction with the defendant’s assistance to conclude that a § 5K1.1 motion but not a § 3553(e) motion is appropriate based on the government’s good-faith valuation of the defendant’s cooperation.  Accordingly, the Court vacated Trimm’s 60-month prison sentence and remanded for resentencing to a prison term, presumably, of no less than 15 years (the statutory minimum).

Also, because this was the second time the district court had erroneously imposed a sentence below the mandatory minimum, and had publicly stated that such a reduced sentence was necessary, the Circuit took the unusual step of remanding the case to a different judge for resentencing.