In U.S. v. Dorsey, No. 06-16698 (Aug. 31, 2007), the Court vacated a sentence based on the defendant’s claim that the government vindictively refused to file a USSG § 5K1.1 motion for reduction of sentence because he went to trial.
After his arrest, Dorsey provided information to law enforcement which immediately led to the arrest of a cocaine-trafficking accomplice. The government then promised him a 5K1.1 departure if he pled guilty. Dorsey elected to go to trial. He was convicted. The government then declined to move for a 5K1.1 departure, claiming that the assistance was "minimal" and that Dorsey started dealing drugs again.
The Court held that a vindictive refusal by the government to move for a 5K1.1 reduction based on a defendant’s exercise of his right to jury trial could be an unconstitutional motive. However, the defendant bears the burden of proving prosecutorial vindictiveness. In some cases, a defendant may rely on a presumption of vindictiveness, which can then be rebutted. In this case, the government had rebutted the presumption, by claiming that the assistance was minimal, and that Dorsey started dealing drugs again, thus proffering legitimate reasons for its failure to file a 5K1.1 motion.
Dorsey therefore had to establish actual vindictiveness. This would require more than showing that the government carried out a threat not to move for a 5K1.1 unless the defendant pled guilty. Because the record was not clear why the government failed to move for a § 5K1.1, the Court remanded the case to the district court for fact-finding at a new sentencing hearing.