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. This overcame the presumption of vindictiveness. On remand, therefore, Dorsey would have to show "actual" vindictiveness. This showing is "exceedingly difficult." Dorsey would have to present evidence that the government acted solely to punish him for exercising his legal rights, and that the reasons proffered by the government were pretextual.