F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
MAY 25 2001
UNITED STATES COURT OF APPEALS PATRICK FISHER
Clerk
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
No. 00-5023
v.
RONALD S. KORMAN,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Oklahoma
(D.C. No. 98-CR-85-BU)
Stephen J. Greubel, Tulsa, Oklahoma, for Defendant-Appellant.
Kenneth P. Snoke, Assistant United States Attorney (Stephen C. Lewis, United States
Attorney, with him on the brief), Tulsa, Oklahoma, for Plaintiff-Appellee.
Before LUCERO, Circuit Judge, McKAY, Senior Circuit Judge, and BROWN,
Senior District Judge.*
*
The Honorable Wesley E. Brown, Senior District Judge, United States District
Court for the District of Kansas, sitting by designation.
BROWN, Senior District Judge.
Appellant Ronald Korman pled guilty to one count of conspiracy to commit
mail fraud and one count of mail fraud, in violation of 18 U.S.C. §§ 371 & 1341, and
was sentenced in accordance with the terms of a plea agreement. He now challenges
the district court's denial of his motion to compel the government to file a § 5K1.1
"substantial assistance" motion on his behalf under the sentencing guidelines.
With one exception, appellant's claim is identical to an appeal by one of his co-
defendants, Bruce Berger. We have affirmed the district court's judgment in Mr.
Berger's case in an opinion filed this same date. See United States v. Berger, No. 00-
5025. Rather than repeat ourselves, we simply incorporate by reference our opinion
in Mr. Berger's appeal, which applies equally here. For the reasons stated in that
opinion, we find that the district court did not err in denying Mr. Korman's motion to
compel the government to move for a 5K1.1 motion.
As we indicated above, Mr. Korman argues one point in this appeal that was
not raised by Mr. Berger. In appellant's plea agreement (and in Berger's), the parties
stated: "There has been information provided to this United States Attorney's Office
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this week, by counsel for defendant, which may, at some future time, result in a post-
conviction motion by the United States to reduce the defendant's sentence." Vol. I,
Korman Plea Agreement, 1/7/99 at p. 5. Unlike Mr. Berger, appellant argues that "the
government acknowledged (in the above quoted language) that it received substantial
assistance from him in the investigation of others" and that this language "required
the Government to move for a sentence reduction." Aplt. Br. at 4; 13-14.
We see no indication that appellant raised this argument in the district court,
but the record makes clear that co-defendant Berger repeatedly conceded in the
jointly-conducted hearings below that the language of the plea agreement made the
filing of a § 5K1.1 motion discretionary with the government. See Doc. 98; Vol. VI
at 20; 123. Mr. Korman did not argue otherwise; he simply adopted the arguments
of Mr. Berger. Appellant's failure to properly raise this issue below means that we
review only for plain error. See United States v. Flinn, 18 F.3d 826, 830 (10th Cir.
1994). Given the use of permissive language in the agreement (i.e. "may be filed"),
and the absence of any language suggesting that the government's discretion was
intended to be circumscribed in any manner, we conclude that the district court did
not commit plain error in denying Mr. Korman's motion to compel.
Accordingly, the judgment of the district court is AFFIRMED.
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