USA v. Kendrick Kentrell Patrick

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 23-10903
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
KENDRICK KENTRELL PATRICK,
a.k.a. KP,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Alabama
D.C. Docket No. 1:19-cr-00123-TFM-B-4
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2 Opinion of the Court 23-10903
____________________
Before WILSON, ROSENBAUM , and L UCK , Circuit Judges.
PER CURIAM:
Kendrick Kentrell Patrick appeals his 292-month total
sentence for conspiracy to possess with intent to distribute cocaine
and crack cocaine and possession of a firearm by a convicted felon.
On appeal, he argues that the district court abused its discretion
when it denied his motion to require the government to disclose
the reasons for its refusal to file a downward departure motion
based on his substantial assistance. The government contends that
the appellate waiver in his plea agreement covers this challenge and
therefore prohibits the appeal. It also responds that the court
properly denied Patrick’s motion. After careful review, we affirm
the denial of Patrick’s motion without determining whether the
appeal waiver applies.1
1 We decline to resolve whether the appeal waiver bars this appeal. It’s not
clear that Patrick’s challenge, related to the government’s obligations under
the plea agreement, falls within the scope of the waiver. See, e.g., United States
v. Puentes-Hurtado, 794 F.3d 1278, 1284 (11th Cir. 2015) (stating that appeal
waivers do not apply to claims that the government breached the plea agree-
ment). And even with a valid appeal waiver, we will still “review a sentence
based on a constitutionally impermissible factor,” such as race or religion. King
v. United States, 41 F.4th 1363, 1367 (11th Cir. 2023) (quotation marks omitted).
Because that’s essentially the same standard Patrick must meet to obtain relief
on his motion, see United States v. Dorsey, 554 F.3d 958, 961 (11th Cir. 2009)
(judicial review is available where “the prosecution refused to file a substantial
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23-10903 Opinion of the Court 3
I.
In May 2019, a federal grand jury returned a 42-count
superseding indictment against Patrick and five codefendants.
Patrick was charged with one count of conspiracy to possess with
intent to distribute cocaine and cocaine base, 21 U.S.C. § 846,
multiple counts of possession with intent to distribute, id.
§ 841(a)(1), and one count of unlawful possession of a firearm after
a felony conviction, id. § 922(g)(1). In August 2019, Patrick pled
guilty to the conspiracy and gun counts under a written agreement
with the government.
In the plea agreement, Patrick accepted terms relating to
cooperation with the government and sentence-reduction motions
under U.S.S.G. § 5K1.1 and Rule 35, Fed. R. Crim. P. The
government agreed to move for a downward departure under
§ 5K1.1 or Rule 35 if Patrick “provide[d] full, complete, truthful and
substantial cooperation to the United States, which results in
substantial assistance to the United States in the investigation or
prosecution of another criminal offense.”
But notably, the plea agreement made clear that the decision
whether Patrick’s cooperation amounted to substantial assistance
was “specifically reserved by the United States in the exercise of its
sole discretion.” The agreement also warned Patrick that, if he
“provide[d] untruthful information . . . , fail[e]d to disclose material
assistance motion because of a constitutionally impermissible motivation”),
we’ll get straight to the point and address the merits of the motion.
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4 Opinion of the Court 23-10903
facts . . . , or commit[ted] a new criminal offense, the United States
will not make a motion for downward departure.” Lastly, the plea
agreement included a provision waiving Patrick’s direct appellate
rights unless certain narrow exceptions applied.
Patrick cooperated with the government for multiple years,
including as a government trial witness, and his sentencing was
repeatedly postponed as a result. But in November 2022, the
government notified Patrick that it would not be filing a § 5K1.1
motion for his benefit because he had breached the plea agreement
by engaging in criminal conduct while incarcerated at the Conecuh
County Jail.
In March 2023, just before sentencing was set to go forward,
Patrick filed a motion requesting an order directing the United
States to produce the information “upon which [it] relies in its
refusal to file a 5K motion.” Defense counsel advised that, while
the government had provided a “verbal outline of allegations,” it
had refused to provide any documentation to substantiate the
allegations, which Patrick denied. Counsel asserted that the
government’s refusal to file a 5K motion was “wholly based on
false information and thorough investigation would show this.”
The government responded in opposition to Patrick’s
motion for disclosure. It noted that Patrick did not claim that the
government breached the plea agreement or acted in bad faith and
that he cited no authority for the remedy he sought. The
government stated that it did not intend to introduce at sentencing
or to the court any information Patrick sought in his motion and
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23-10903 Opinion of the Court 5
that, to the extent privilege did not cover the information, the
government declined to produce it. The government further
contended that it was simply exercising its discretion as appropriate
under both Patrick’s plea agreement and federal law, and that
Patrick had not presented a basis for judicial review.
At sentencing, the district court heard argument from the
parties and then denied the motion to compel the government to
substantiate its refusal to file a 5K motion. Patrick’s attorney
stressed that he lacked the information to effectively challenge the
government’s position, and that he believed the government was
relying on erroneous information. The government responded
that Patrick had not “provided any legal basis on which to require
that the government disclose that type of information at this stage
of the proceedings.” The court stated that, after reviewing the plea
agreement and relevant case law, it did not see a constitutional
basis for granting Patrick’s motion because it was within the
government’s discretion not to file a § 5K motion.
Without a reduction for substantial assistance, the district
court calculated a guideline range of 360 months to life
imprisonment based on a total offense level of 39 and a criminal
history of IV. Citing a new Department of Justice policy, the
government asked for a sentence of 292 months, at the low end of
the guideline range (292 to 365 months) that would have applied if
the crack cocaine in the case had been treated as powder cocaine.
Patrick personally addressed the court, suggesting that the warden
of the Conecuh County Jail had falsely accused him of assault. The
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6 Opinion of the Court 23-10903
court sentenced Patrick to a total term of 292 months in prison,
stating that it would have imposed the same sentence even if
Patrick had received a 5K departure. Patrick now appeals the
denial of his motion for discovery relating to the government’s
decision not to file a 5K motion. He does not otherwise appeal his
sentence.
II.
We typically review de novo whether the district court may
compel the government to make a substantial-assistance motion.
United States v. Forney, 9 F.3d 1492, 1498 (11th Cir. 1993). We
review the denial of a motion to order discovery for an abuse of
discretion. United States v. Cuya, 964 F.3d 969, 970 (11th Cir. 2020).
III.
Under § 5K1.1 of the Sentencing Guidelines, the district
court “may depart from the guidelines” “upon motion of the
government stating that the defendant has provided substantial
assistance.” U.S.S.G. § 5K1.1. This provision “gives the
Government a power, not a duty, to file a motion when a
defendant has substantially assisted.” Wade v. United States, 504
U.S. 181, 185 (1992). And courts generally are “are precluded from
intruding into prosecutorial discretion.” Forney, 9 F.3d at 1501.
Of course, the prosecutor’s discretion when exercising that
power is subject to constitutional limitations.2 Id. According to
2 The government’s discretion may also be subject to contractual limitations.
But beyond asserting that the government owed a duty of good faith and fair
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23-10903 Opinion of the Court 7
Wade, federal courts may review the government’s refusal to file a
substantial-assistance motion if the “refusal was based on an
unconstitutional motive,” such as race or religion, or “was not
rationally related to any legitimate Government end.” 504 U.S. at
185–86.
But judicial inquiry is warranted only if a defendant makes a
“substantial threshold showing” of an unconstitutional motive.
Wade, 504 U.S. at 186–87; Forney, 9 F.3d at 1502. “A claim that a
defendant merely provided substantial assistance will not entitle a
defendant to a remedy or even to discovery or an evidentiary
hearing. Nor would additional but generalized allegations of
improper motive.” Wade, 504 U.S. at 186; see United States v. Dorsey,
554 F.3d 958, 961 (11th Cir. 2009) (“A defendant who merely claims
to have provided substantial assistance or who makes only
generalized allegations of an improper motive is not entitled to a
remedy or to even an evidentiary hearing.”).
Here, the district court did not abuse its discretion in
denying Patrick’s motion for discovery. The government was not
under a duty to file a § 5K motion on Patrick’s behalf, and it was
free to utilize prosecutorial discretion in making that decision.
Patrick did not allege that the government based its refusal on an
dealing under the plea agreement, Patrick does not argue that the agreement
limited the government’s discretion to file a 5K motion or that the
government otherwise violated the plea agreement. So he has abandoned any
argument along those lines. And as a result, judicial review of the
government’s refusal to file a substantial-assistance motion is controlled by
Wade and “not general contract principles.” Forney, 9 F.3d at 1500 n.3.
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8 Opinion of the Court 23-10903
unconstitutional motive, so he was not entitled to have the district
court review the government’s decision, even assuming he
otherwise provided substantial assistance. See United States v. Nealy,
232 F.3d 825, 831 (11th Cir. 2000) (rejecting the view that “the
government cannot refuse to file a substantial-assistance motion
for reasons other than the nature of defendant’s substantial
assistance.” (cleaned up)). While Patrick alleged that the
government’s decision might have been based on false
information, which he contends would not serve a legitimate
government end, he simply speculates to that effect. And that falls
short of making the type of “substantial threshold showing” of
improper motive that would warrant discovery or an evidentiary
hearing. See Wade, 504 U.S. at 186. Thus, we affirm.
AFFIRMED.
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