In U.S. v. Dorsey, No. 06-16698 (Jan. 9, 2009), the Court, upon sua sponte reconsideration of its prior decision, vacated its prior opinion and substituted another, finding that there was sufficient corroborating information in affidavits supporting search warrants, and holding that the government did not unconstitutionally punish Dorsey when it refused to file a motion to reduce his sentence pursuant to 5K1.1 when he decided to trial on the charged drug trafficking offenses.
The Court pointed out that the government’s offer of a 5K1.1 substantial assistance motion was conditioned on Dorsey’s entry of a guilty plea. The offer was made in the context of a plea negotiation. Accordingly, the government’s subsequent refusal to file a 5K1.1 motion when Dorsey did not plead guilty was constitutionally permissible. In addition, the Court noted that Dorsey was aware that the government did not consider his prior assistance sufficient to warrant a 5K1.1 motion.