United States v. Zakas, 793 F. Supp. 2d 77

Zakas signed a Jan 18, 2008 cooperation/plea agreement giving the government sole discretion to determine substantial assistance and whether to file a departure motion.
The government notified that no substantial assistance warranted a departure under 5K1.1 and 18 U.S.C. § 3553(e) after the Departure Guideline Committee’s review.
The court repeatedly continued sentencing while cooperation continued, and ultimately sentenced on Apr 15, 2009 to 41 months concurrent with restitution of $863,637 and 36 months supervised release.
Defendant appealed and later sought to withdraw the appeal; the D.C. Circuit dismissed the appeal.
On Oct 26, 2010, Zakas filed a § 2255 motion arguing the government breached the plea agreement by not moving for a downward departure.
The court denied the § 2255 motion, holding no constitutional/ contractual breach and no improper government motive, and found no need for an evidentiary hearing.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Breach of plea agreement by not filing departure motion	Zakas asserts government breach due to lack of incentivizing prosecutions and bad faith.	Zakas claims the government knew cooperation would not yield prosecutions yet refused to file a departure.	No relief; government had sole discretion and aligned with the plea terms.
Whether government’s decision not to file a departure motion was improper or irrational	Defendant argues bad faith and unconstitutional motive.	Government’s choice was irrational and motivated by improper reasons.	No improper motive or irrationality shown; decision rationally related to legitimate end.
Whether the § 2255 remedy is warranted where the government exercised discretion under Wade/In re Sealed Case	§ 2255 should vacate sentence due to breach.	No breach or unconstitutional motive proven.	§ 2255 relief denied; no basis to overturn sentence.

Wade v. United States, 504 U.S. 181 (1992) (government may choose not to file a departure; court lacks sua sponte power to grant unless bad faith/unconstitutional motive)
In re Sealed Case, 244 F.3d 961 (D.C. Cir. 2001) (government refusal to file departure may be reviewed for bad faith or violation of plea terms)
In re Sealed Case, 244 F.3d 964 (D.C. Cir. 2001) (analysis of whether government’s discretion breached plea agreement)
In re Sealed Case, 181 F.3d 128 (D.C. Cir. 1999) (further controls on when court may compel departure motion)
United States v. Frady, 456 U.S. 152 (1982) (standard for collateral relief and threshold showing required)