UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT
_________________
No. 97-40187
(Summary Calendar)
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
KEVIN LAMONT MATHIS,
Defendant-Appellant.
Appeal from the United States District Court
For the Eastern District of Texas
(6:96-CR-45-6)
August 29, 1997
Before DAVIS, EMILIO M. GARZA, and STEWART, Circuit Judges.
PER CURIAM:*
Kevin Mathis pleaded guilty to one count of possession with
intent to distribute and distribution of cocaine base in violation
of 21 U.S.C. § 841(a)(1). Mathis’s written plea agreement provided
that the government would file for a downward departure pursuant to
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR. R.
47.5.4.
U.S. Sentencing Guidelines Manual § 5K1.1 if, in the government’s
opinion, Mathis provided substantial assistance. Although Mathis
cooperated, the government did not file for a downward departure at
sentencing. Mathis appealed, alleging that the government breached
the terms of his plea agreement. Finding no breach, we affirm.
I
The government charged Mathis with one count of conspiracy to
possess with intent to distribute and distribution of cocaine base
in violation of 21 U.S.C. § 846 and with three counts of possession
with intent to distribute and distribution of cocaine base in
violation of 21 U.S.C. § 841(a)(1). Pursuant to a written plea
agreement, Mathis pleaded guilty to one count of violating 21
U.S.C. § 841(a)(1) and agreed to cooperate “fully and honestly”
with the government. In return, the government agreed to dismiss
the remaining counts at sentencing, inform the court of Mathis’s
cooperation and the veracity of his statements, and, if the
government determined that Mathis provided substantial assistance,
the government agreed to “make a motion pursuant to guideline
section 5K1.1 or Federal Rule 35b for a downward departure from the
applicable sentencing guideline range.”1.
1
Fed. R. Crim. P. 35(b) provides that “[t]he court, on
motion of the government within one year after the imposition of
the sentence, may reduce a sentence to reflect a defendant’s
subsequent, substantial assistance . . . .” The government’s
decision not to move for downward departure is final only with
regard to the section 5K1.1 motion, because the government may move
for downward departure pursuant to Rule 35(b) any time within one
year of sentencing, which occurred on January 24, 1997. Our
2
The presentence report (“PSR”) recommended a guideline range
of fifty-seven to seventy-one months’ imprisonment based on a total
offense level of twenty-five and a criminal history category of I.
In addition, the PSR stated that the “probation officer has no
information concerning the offense or the offender which would
warrant a downward departure from the prescribed sentencing
guidelines.”
At sentencing, Mathis objected to the government’s refusal to
move for downward departure. Mathis testified that a Drug
Enforcement Agency (“DEA”) agent assured him that the government
would file a motion for downward departure if Mathis furnished the
name of his drug supplier. Mathis testified that he told the agent
the name of his supplier in reliance on this agreement and that the
DEA acted on the information by seizing some of the supplier’s
assets. On cross-examination, however, Mathis acknowledged that
the government retained discretion under the plea agreement to
determine whether to file a motion for downward departure.
The district court adopted the recommendations of the PSR and
sentenced Mathis to fifty-seven months’ imprisonment, three years
supervised release, and a special assessment of $100. Mathis
timely appealed.
II
Mathis contends on appeal that the government breached the
review, therefore, applies only to the decision not to file the
section 5K1.1 motion.
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plea agreement by refusing to move for downward departure after
Mathis provided the name of his supplier. Mathis claims that,
because he fulfilled his part of the plea agreement to the best of
his ability and the government used the information he provided to
its benefit, he was entitled to the government motion.
We have held that “when a plea rests in any significant degree
on a promise or agreement of the prosecutor, so that it can be said
to be part of the inducement or consideration, such promise must be
fulfilled.” United States v. Valencia, 985 F.2d 758, 761 (5th Cir.
1993). The defendant bears the burden of proving the underlying
facts establishing a breach of the plea agreement by a
preponderance of the evidence. United States v. Garcia-Bonilla, 11
F.3d 45, 46 (5th Cir. 1993). To establish whether the government
has breached a plea agreement, the court must determine “whether
the Government’s conduct is consistent with the parties’ reasonable
understanding of the agreement.” Id. This is a question of law,
which this court reviews de novo. Id.
It is well established that, absent an agreement to the
contrary, the government’s decision to file a motion for a
section 5K1.1 departure is discretionary. See Wade v. United
States, 504 U.S. 181, 185, 112 S. Ct. 1840, 1843, 118 L. Ed. 2d 524
(1992) (holding that section 5K1.1 gives government power, not
duty, to file motion when defendant has substantially assisted).
However, the government may bargain away its discretion in a plea
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agreement and thereby obligate itself to move for a downward
departure in exchange for the defendant’s substantial assistance.
Garcia-Bonilla, 11 F.3d at 46. When determining whether the
government has bargained away its discretion to file a
section 5K1.1 motion, this court reviews the specific language of
the plea agreement. Id. at 47.
We have held that, when the government states in a plea
agreement that it “will file” a motion, the government has
bargained away its discretion. United States v. Price, 95 F.3d
364, 368 (5th Cir. 1996). In contrast, when the plea agreement
expressly states that the government retains discretion over the
decision to submit a motion, we have held that a refusal to do so
is reviewable only for unconstitutional motive. Garcia-Bonilla, 11
F.3d at 47; United States v. Aderholt, 87 F.3d 740, 742 (5th Cir.
1996). Our initial inquiry, therefore, is whether the government,
in the text of the plea agreement, has bargained away or retained
its discretion.
Mathis’s plea agreement provides:
If, in the opinion of the United States, the defendant
has provided substantial assistance . . . the United
States will make a motion pursuant to guideline section
5K1.1 or Federal Rule 35b for a downward departure from
the applicable sentencing guideline range. The defendant
understands that the decision of whether to file such a
motion lies exclusively with the United States . . . .
(emphasis added). In this case, the government agreed that it
“will” file a motion if Mathis provides substantial assistance, but
5
it also reserved the exclusive right to determine if Mathis’s
cooperation qualified as substantial assistance. When presented
with both mandatory and discretionary language in the plea
agreement, we have held that the statement that the government
“will” file the motion was expressly conditioned on the
government’s discretionary determination of whether the defendant
had provided substantial assistance. See Garcia-Bonilla, 11 F.3d
at 45 (holding that government retained discretion when plea
agreement provided that government “will file” section 5K1.1
motion but that the decision of whether to file rests within “sole
discretion” of government); United States v. Urbani, 967 F.2d 106,
107 (5th Cir. 1992) (explaining that government retained discretion
when plea agreement provided that government “will file”
section 5K1.1 motion but “unequivocally disclaims” any obligation
to do so). The phrase “lies exclusively” in the Mathis plea
agreement closely resembles the “sole discretion” language of the
plea agreement in Garcia-Bonilla and the disclaimer in Urbani;
therefore, we find that the government retained its discretion.
Based on the language of the plea agreement and Mathis’s
admission at sentencing that the government retained its
discretion, it is clear that the parties intended and understood
that the government was not obligated under the plea agreement to
file a motion for downward departure. The government’s decision
not to file for a downward departure is, therefore, consistent with
6
the reasonable expectations of the parties, and Mathis is not
entitled to relief on appeal.
Mathis also asserts that, as a matter of contract, the court
must reduce his sentence under section 5K1.1 because his reliance
on the promise of a DEA agent entitles him to specific performance.
When a plea agreement is determined to be defective, an alternative
remedy imposed in some cases is specific performance by the
breaching party. Santobello v. New York, 404 U.S. 257, 262-63, 92
S. Ct. 495, 498-99, 30 L. Ed. 2d 427 (1971). Mathis asserts in his
brief that “[t]he trial court committed reversible error . . . by
not granting downward departure . . . .” The district court, of
course, is not a party to the plea agreement and may not be bound
by its terms. Even if the government were obligated to move for a
downward departure, the trial court is under no obligation to grant
such motion. United States v. Wilder, 15 F.3d 1292, 1295 (5th Cir.
1994). The district court may or may not conclude that the
defendant’s cooperation warrants a downward departure from the
guideline range, even where the government moves for such
departure. U.S.S.G. § 5K1.1(a). Therefore, although Mathis
asserts that he is entitled to downward departure, it is apparent
that the only specific performance he may request is for the filing
of a 5K1.1 motion by the government. Moreover, Mathis has
presented no evidence that the government breached the plea
agreement; therefore no specific performance is required.
7
Mathis also argues that, notwithstanding the plea agreement,
the DEA agent’s alleged assurances are sufficient to obligate the
government to file for downward departure. The government is
obligated to move for a downward departure when, in reliance on a
government’s representation, a defendant did his part, or stood
ready to do his part, but was unable to do so because the
government no longer required the information or opted not to use
it. United States v. Melton, 930 F.2d 1096, 1098-99 (5th Cir.
1991). The government is not relieved of its obligation to file
for a downward departure simply because it decides it no longer
wants or needs the information for which it bargained. Id.
However, this rule only binds the government in cases such as
Melton, in which the government has bargained away its discretion
not to file a 5K1.1 motion. Since the government retained its
discretion in this case, it is not obligated to move for a downward
departure despite any alleged assurances from the DEA agent.
AFFIRMED.
8