The opinion of the court was delivered by: Katz, Senior District Judge
In late 1994, Mr. Khan contacted a cooperating government witness and
offered to sell the witness a pound of heroin. Acting on instructions
from a friend in Pakistan, Mr. Khan located a supplier in Brooklyn, New
York. He then traveled to Brooklyn and met with three individuals who
gave him the heroin. Mr. Khan was arrested in Philadelphia when he
attempted to sell the drugs to the cooperating witness. Laboratory
analysis revealed the substance Mr. Khan was attempting to sell to be
479.5 grams of heroin hydrochloride at forty-three percent purity. This
was the first time Mr. Khan attempted to sell heroin.
Mr. Khan agreed to become a cooperating witness himself and traveled to
Brooklyn to procure more heroin. However, because he owed money for the
first supply of drugs, the sellers would not advance additional drugs,
and the FBI decided not to provide the funds to pay the sellers. Mr. Khan
did not know the names of the three individuals who gave him the heroin.
Mr. Khan also provided information regarding alleged drug activities in
Philadelphia, but nothing came of this information.
On July 1, 1998, Mr. Khan pled guilty to one count of conspiracy with
intent to distribute heroin and one count of unlawful possession of more
than 100 grams of heroin. Mr. Khan's plea agreement included the
provision that if his cooperation was substantial, the government would,
in its sole discretion, make a motion for a substantial assistance
departure. Mr. Khan signed the agreement and during his plea colloquy
indicated that he understood that he was bound by his plea even if the
government did not file a substantial assistance motion.
Prior to sentencing, Mr. Khan filed pro se objections to the sentencing
calculations in the Presentence Investigation Report, arguing for a
two-level reduction in the offense level pursuant to U.S.S.G. §
5C1.2,*fn2 for a one level decrease for acceptance of responsibility
under U.S.S.G. § 3E1.1(b), and for a departure under Koon v. United
States, 518 U.S. 81, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996), and United
States v. Sally, 116 F.3d 76 (3d Cir. 1997), for post-offense
rehabilitation efforts. Mr. Khan received the safety value*fn3 and
acceptance of responsibility reductions, but the court declined to grant
a downward departure under Koon. See Order of October 5, 1998.
Mr. Khan was sentenced by this court on October 5, 1998, to forty-six
months imprisonment and five years supervised release.
In order to succeed on his claims of ineffective assistance of
counsel, Mr. Khan must show both cause and prejudice. Namely, he must
show that his counsel's performance was "outside the wide range of
professionally competent assistance," Strickland v. Washington,
466 U.S. 668, 690, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and that "there
is a reasonable probability that, but for counsel's unprofessional
errors, the result of the proceeding would have been different." Id. at
694, 104 S.Ct. 2052.
Due to its critical importance in federal criminal proceedings,
familiarity with "the structure and basic content" of the Sentencing
Guidelines "has become a necessity for counsel who seek to give effective
representation." United States v. Day, 969 F.2d 39, 43 (3d Cir. 1992).
Mr. Khan has raised a serious question regarding his counsel's
familiarity with the Guidelines, given that his counsel was apparently
unaware of the provision in U.S.S.G. § 2D1.1(b)(6) for a two-level
reduction in the offense level for defendants meeting the requirements of
U.S.S.G. § 5C1.2. See Pet. Ex. A (letter from counsel flatly stating
that there is no provision under U.S.S.G. § 5C1.2 for a two "point
reduction" without referencing U.S.S.G. § 2D1.1(b)(6)). However, even
accepting Mr. Khan's contention that his counsel was deficient, he cannot
demonstrate that he was prejudiced regarding any of the issues he raises
in his petition.*fn4
Mr. Khan cannot show that the government would have made a substantial
assistance motion but for his counsel's failure to advocate for such a
departure. As part of Mr. Khan's plea agreement, the government agreed to
make a motion for downward departure if it determined that Mr. Khan
provided substantial assistance. However, the government apparently
decided that Mr. Khan's assistance was not sufficient because the
information he provided did not lead to another investigation or any
other arrests. See Gov't Sentencing Mem. at 3, 5-6. The government, in
exercising its discretion, determined that Mr. Khan did not merit a
substantial assistance departure. Mr. Khan has failed to suggest, let
alone demonstrate, how his counsel could have altered this outcome.
Mr. Khan also cannot show that there is a reasonable probability that
the court's refusal to exercise its limited discretion to depart downward
is attributable to his counsel's error. A district court may depart under
U.S.S.G. § 5K1.1 without a motion from the government if it finds
that the government's refusal was based on an unconstitutional motive or
not rationally related to any legitimate government end. See Wade v.
United States, 504 U.S. 181, 185-86, 112 S.Ct. 1840, 118 L.Ed.2d 524
(1992). The court may also depart if the government's refusal to file a
substantial assistance motion is attributable to bad faith, even when the
plea agreement specifies that the decision whether to file is in the
government's sole discretion. See United States v. Isaac, 141 F.3d 477,
484 (3d Cir. 1998). While Mr. Khan makes the assertion that he
"vigorously assisted authorities," he does not point to any concrete
actions on his part other than bringing the authorities to the apartment
in Brooklyn where he received the heroin. See Pet. Mot. at 3. The
government acknowledged this act but determined it was not sufficient to
warrant a substantial assistance motion. Mr. Khan fails to allege any
suspect motive on the part of the government. See United States v.
Higgins, 967 F.2d 841, 845 (3d Cir. 1992) (holding that the mere fact
that a defendant provided assistance and the prosecutor did not file a
motion is not sufficient evidence of suspect motive). Given the quantity
of heroin involved and that Mr. Khan's assistance did not lead to any
fruitful investigations or arrests, the government's decision not to file
a motion was rationally related to a legitimate end and was not in bad
faith. Quite simply, Mr. Khan does not meet any of the extremely limited
circumstance in which a court may depart for substantial assistance
without a government motion and even if his attorney had raised these
arguments, a departure would not have been granted.