Refusal to File 5K1.1 Motion Unconstitutional When Based on Defendant's Assertion of Right to Trial

The Eleventh Circuit held that a prosecutor's refusal to file a 5K1.1 motion on the basis of the defendant's exercise of his right to a trial constitutes an unconstitutional motive. While the factual findings were insufficient for the defendant in United States v. Dorsey to prevail (as the case was remanded for additional findings), the Eleventh joined the Third and Ninth Circuits in its holding. (The Tenth has suggested the same in dicta in United States v. Easter.)

On remand, the defendant must show prosecutorial vindictiveness in the refusal to file the 5K1.1 motion. Because the government in this case proffered a legitimate basis (though a seemingly flimsy one) to overcome the defendant's proffer of facts giving rise to a presumption of vindictiveness, the defendant will have to show that actual vindictiveness motivated the refusal to file the motion in order to prevail.