United States District Court, N.D. Mississippi
SHARION AYCOCK, U.S. DISTRICT JUDGE
Shantel McClung has filed a Motion under Section 2255 to
Vacate, Set Aside, or Correct Sentence  following her
criminal conviction in 2014. Finding no error in sentencing,
the motion is DENIED.
and Procedural Background
McClung entered a plea to three counts of the Indictment and
was sentenced to serve a term of 57 months. While she filed a
Notice of Appeal shortly after sentencing, she voluntarily
dismissed that appeal before briefing was complete.
now seeks to vacate her sentence on the grounds that the
Government abused its discretion in failing to file a 5K1.1
motion on her behalf despite her substantial assistance.
defendant has been convicted and exhausted or waived any
right to appeal, a court is normally “entitled to
presume that the defendant stands fairly and finally
convicted.” United States v. Willis, 273 F.3d
592, 595 (5th Cir. 2001). Relief under 28 U.S.C. § 2255
is reserved for transgressions of constitutional rights and
for a narrow range of injuries that could not have been
raised on direct appeal and would, if condoned, result in a
complete miscarriage of justice. United States v.
Gaudet, 81 F.3d 585, 589 (5th Cir. 1996). To receive
relief pursuant to § 2255, the movant must demonstrate
(1) that the sentence imposed violated the Constitution or
laws of the United States, (2) that the sentencing court was
without jurisdiction to impose the sentence, (3) that the
sentence was in excess of the maximum authorized by law, or
(4) that the sentence is otherwise subject to collateral
attack. United States v. Seyfert, 67 F.3d 544, 546
(5th Cir. 1995).
5K1.1 of the U.S. Sentencing Guidelines provides that
“[u]pon motion of the government stating that the
defendant has provided substantial assistance” in
investigating or prosecuting another person, the court may
depart from the sentencing guidelines. U.S. Sentencing
Guideline Manual § 5K1.1 (2014). A sentencing court has
no authority to grant a downward departure on the basis of
substantial assistance absent a motion by the government.
United States v. Price, 95 F.3d 364, 367 (5th Cir.
1996). Section 5K1.1 grants the government the “power,
not a duty, to file a motion when a defendant has
substantially assisted.” Id. at 368 (citing
Wade v. United States, 504 U.S. 181, 184, 112 S.Ct.
1840, 118 L.Ed.2d 524 (1992)). The court's authority to
review the government's refusal to exercise its
discretion not to move under § 5K1.1 “is limited
to determining whether the refusal was animated by an
unconstitutional motive.” Id.
the government may bargain away its discretion under the
terms of a plea agreement, and thereby obligate itself to
move for a downward departure in exchange for the
defendant's substantial assistance. United States v.
Garcia-Bonilla, 11 F.3d 45, 46-47 (1993); United
States v. Aderholt, 87 F.3d 740, 742 (5th Cir. 1996). In
those cases in which the government has bargained away its
discretion, the only remaining inquiry is whether the aid
rendered by the defendant constitutes substantial assistance
as that term was reasonably understood by the parties at the
time that they entered into the plea agreement. See
United States v. Wilder, 15 F.3d 1292, 1296-97 (5th Cir.
1994); United States v. Hernandez, 17 F.3d 78, 81-83
(5th Cir. 1994); Aderholt, 87 F.3d at 743 (where
government retains discretion under plea agreement,
unnecessary to determine whether defendant's actions
amounted to substantial assistance).
the Government retained discretion under the Plea Agreement
and Plea Supplement to file or not file a Section 5K1.1
motion on behalf of McClung. McClung's Plea Supplement
The United States Attorney may before sentencing move the
Court for a downward departure under §5K1.1 of the
United States Sentencing Guidelines based upon substantial
assistance or may file after sentencing a Rule 35 motion to
reduce sentence based upon defendant's cooperation. The
defendant understands that the decisions whether to move for
downward departure or to reduce sentence are entirely in the
discretion of the United States Attorney, not the defendant
or defendant's attorney, and that the Court can deny in
whole or in part either or both of such motions.
her Plea Agreement acknowledged that
Apart from being advised of the applicability of the U.S.
Sentencing Guidelines, and other than as set forth elsewhere
in the plea documents, no promise or representation
whatsoever has been made to defendant as to what punishment
the Court might impose if it accepts the plea of guilty. This
agreement, together with the Plea Supplement filed herewith,
fully reflects all promises, agreements, and understandings
between the defendant and the United States Attorney. The
defendant's agreement is knowing, free, and voluntary,
and not the product of force, threat, or coercion. The
defendant is pleading guilty because defendant is in fact
the United States Attorney retained discretion to file a
motion under §5K1.1; therefore, the Court's inquiry
is limited to whether that ...